GDZ v Children's Guardian - [2025] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GDZ v Children’s Guardian [2025] NSWCATAD 76
Hearing dates: 2 September 2024, 3 September 2024
(Submissions closed 17 October 2024)
Date of orders: 31 March 2025
Decision date: 31 March 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member (Legal)
E Hayes General Member (Community)
Decision:
(1) The decision of the respondent dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed.
(2) The application is dismissed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children

Legislation Cited:
Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Children’s Guardian Act 2019
Civil and Administrative Tribunal Act 2013

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Texts Cited:
Nil

Category: Principal judgment
Parties: GDZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Strickland (Respondent)
Solicitors:
Self Represented (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2024/00124866
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This Applicant seeks administrative review of a decision by the Respondent cancelling his Working with Children Check clearance (WWCCC). The clearance was cancelled because the Respondent (the Office of the Children’s Guardian) became aware of information, and on which after conducting a risk assessment it was satisfied that he posed a real and appreciable risk to the safety of children.
The Applicant worked as a school teacher for over 25 years. Since the commencement of the formal child protection regime following the Wood Royal Commission in the mid to late 1990’s and legislative reforms in the late 1990’s the current regime of external vetting of person’s working with children commenced. The current regime arose out of inquiries and further reforms following 2007 and these matters are relevant as the Applicant’s teaching career spans this period. From commencement of the vetting requirement until cancellation the Applicant was authorised to work with children and was issued with what became referred to as a working with children clearance, now know as a Working with Children Check Clearance. (WWCCC).
The Applicant was subject to Education Department investigations from late 2019 whereby he was investigated for allegations of inappropriate comments made to students while teaching at a High School in NSW. By the time of the investigation the Applicant was working at a different High School in NSW. While the investigation was ongoing further historic allegations arise spanning the breadth of the Applicant’s teaching career and were described as ‘inappropriate relationships with students’. Further allegations related to inappropriate behaviour with staff.
The allegations and complaints from 2019 onwards were reported to the Departmental employer and actioned. As part of that process some mandatory reporting and instances of notifiable matters were referred on to the various oversight regulatory bodies including the Respondent.
In respect of the initial allegations at the conclusion of the investigation the Department made sustained findings in five of the 10 allegations. This was later amended to one sustained and the other four sustained on a preliminary basis which could not be maintained to the civil standard. The Respondent was notified of these matters whereby they received notification of a reportable conduct matter. The Respondent initially advised the Applicant on 17 June 2021 that they had been informed of the allegations and were conducting a risk assessment.
Pursuant to s 15 (4) of the Child Protection (Working with Children) Act 2012 (the ‘Act’) the Respondent was required to conduct a risk assessment of the applicant, as there was a disclosed matter in his history which was listed in clause 2 (2) (a) of Schedule 1 of the Act. That matter related to the Applicant being investigated in his workplace. Further allegations arose concerning behaviour said to have occurred in February 2023. Then further allegations arose in September 2023 (outside of the government education sector), involving inappropriate comments in the context of a sexual harassment lesson. Many of these later allegations were untested due to the Applicant being on leave.
Having conducted a risk assessment near the end of that process on 30 November 2023 the Respondent advised the Applicant that it proposed to cancel his clearance. Following receipt of further information the Respondent made a final decision on 15 March 2024 and advised the Applicant that it had cancelled his clearance, and provided written reasons accompanying the decision.
In short those reasons indicated that the decision was arrived at on the basis of 10 sustained findings as set out by the Professional Ethics and Standards Unit (PES) of the Department of Education of misconduct or sexual misconduct and that the complaints concerned 17 individual students, as well as a collective group of students and two teachers.

Background

As noted at [7] above on 30 November 2023 the Respondent sent the Applicant a Notice of Proposed Refusal and provided a Statement of Reasons for Proposed Refusal. The Applicant was invited to make submissions prior to any final decision to refuse the application for a WWCCC. After receiving submissions in response to the Notice of Proposed Refusal, the Respondent finalised their assessment and after considering all of the evidence and material it had obtained in the assessment, refused the Applicant’s application for a WWCCC on 15 March 2024.
On 2 April 2024 the Applicant applied for administrative review by the Tribunal.
The Applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the Applicant remains a real and appreciable risk to the safety and well being of children and young persons. In addition the Tribunal finds that it cannot be satisfied on the available evidence that 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 person was engaged in any child-related work.
As a result of this finding the decision of the Respondent will be affirmed.

Further Background

The Applicant in these proceedings is referred to as "GDZ". GDZ is the Applicant's pseudonym used in these proceedings in conformity with the order previously made in the proceedings under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) on 24 April 2024 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

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.

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 Notice of Cancellation was issued under s 23 (1) of the Act was issued on 15 March 2024. GDZ stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed on 2 April 2024 at a NCAT Registry was lodged within the required period and as a result his application for administrative review has clearly been received within time.
The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
Under s 27 (3) of the Act a person whose clearance is cancelled by the Children’s Guardian may apply to the Tribunal for a review. The section provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

The application for administrative review

The grounds of the substantive application (in summary) are:

(1) OCG failure to satisfy basis requirement of relevant Acts and their own guidelines in making decision of cancellation.

(2) OCG failure to perform assessment with procedural fairness. Examples of procedural unfairness include deliberate disregard and / or suppression of evidence favourable to me.

(3) Every adverse reason and conclusion of OCG suffers from lack of plausible evidence and / or acceptance and adoption of faulty information provided by PES.

(4) On the basis of the above and many other reasons, the decision is unfair and unreasonable.

More detailed grounds were provided in written material submitted by GDZ.
The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant (GDZ), poses a risk to the safety and well being of children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30 (1A) of the Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining GDZ’s current risk.

The working with children legislative scheme

The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.
The safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.
Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). GDZ was subject to a risk assessment as outlined above.
Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

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

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

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,

(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.

In addition if the Tribunal considers that an applicant is not a real and appreciable risk to the safety and well being of children, the Tribunal must be satisfied that a reasonable person would allow the applicant to have unsupervised access to their children in a work setting, and that granting the clearance would be in the public interest.

Burden of Proof

The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.

The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'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". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.
The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].
We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

The matter was heard over two days in person. At the conclusion of the second day a timetable was set for the filing and serving of post evidence submissions.
The applicant (GDZ) gave evidence at the hearing. No other witnesses were required for cross examination at hearing.

Written Evidence

Applicant’s written material

The applicant filed a number of written items in support of his application.

Exhibit ‘A 1’: the application for administrative review,

Exhibit ‘A 2’: bundle of documents Parts 1-5 with 10 annexures filed 17 June 2024.

Exhibit ‘A 3’ Further material indexed 38 pages filed 22 August 2024.

The applicant also filed detailed written submissions and submissions in reply. GDZ also filed an unsigned ‘opening statement to the Tribunal’ at hearing.

Respondent’s written material

The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31 of the Act. The respondent also filed detailed written submissions dated 27 April 2021.

Exhibit ‘R 1’ documents produced under s 58 of the Administrative Decisions Review Act 1997 (2 volumes – pages 1-820 and pages1179-1226 – total of 867 pages) filed 21 May 2024.

Exhibit ‘R 2’ further documents produced under s 31 of the Act filed 9 July 2024 (11 pages).

Exhibit ‘R 3’ Summons Material filed 2 September 2024 at hearing.

The respondent also filed detailed written submissions on 8 August 2024, and submissions in reply on 17 October 2024. In these reasons GDZ’s circumstances are referred to in general terms so as to prevent constructive identification of him in the context of his complaints including identification of schools, students and others.

Brief history of relevant matters

The applicant (GDZ) worked as a school teacher in regional NSW where he had taught at a number of Government High Schools in the period 1996 to 2022. His early teaching years were as a casual and he secured a permanent position after two years. GDZ taught at one high school for almost 20 years and held senior roles at various times during this period. In his last three years of teaching in the government sector, GDZ was a head teacher at a different regional High School.
In his final year of teaching he taught in the Catholic system, having left the NSW sector roles due to adverse findings made against him.
The allegations against GDZ that resulted in investigations with some adverse and sustained findings were as follows: (as noted above some of the details have been simplified to prevent constructive identification of GDZ and others including children)

Allegations of sexualised comments and relationships which crossed professional boundaries.

Examples being that a female student’s body (including a part of their body such as their ‘arse’) looked good.

Comments about the sex lives of individuals or their sexual attraction as perceived by GDZ. Comments that someone ‘looked hot’.

References to sexual activity with his wife (raised with students) or then discussions about the sexual activity of the female students with their boyfriends.

Relationships with female students that crossed professional boundaries: private messaging with female students via SMS or social media and being alone with female students.

Unwarranted comments about females at the beach and men’s desires.

GDZ’s evidence at hearing

In evidence in chief GDZ advised that since his clearance was cancelled he was now engaged in three jobs of differing natures in his local area in order to continue to meet his financial obligations.
GDZ adopted all of his written material and statements as true and correct to the best of his knowledge whilst on oath.
In cross-examination GDZ was taken to the Code of Conduct document at page 258 of ‘R-1’. He said that he could not recall back to what transpired with that documents in 1996/97 but agreed with Counsel’s proposition that there would have been some training around the document.
Like with Child Protection Training referred to at page 260 of ‘R-1’ GDZ said that he could not recall whether he actually received any child protection training at that time. GDZ said that he was sure that he would have received some training and accepted that he had a duty of care to children as a teacher.
He said that in respect of the revised Code of Conduct as set out at page 276 and 277 of ‘R-1’, GDZ said that he was not precisely aware of when he became aware of his obligations but over the last 10 to 15 years his knowledge crystallised in respect of this.
GDZ said that he was aware that it was inappropriate to have sex with any student (regardless of age), and he knew this from the very beginning of his teaching career.
At tab 2 of ‘R-3’ GDZ was asked about the Code of Conduct from March 2017 and whether he was familiar with it at that time. GDZ confirmed that was the case but advised that he did the mandatory training online and could not recall whether the particular Principal did (provided) staff training for the Code of Conduct.
GDZ confirmed that in 2019 he was aware that he could not be ‘friends’ with students on social media. GDZ was asked whether he received any training about social media use and students. GDZ advised that any training would have been part of the on-line training.
It was put to GDZ that as at 2019 teachers should not be communicating with students by Facebook Messenger. GDZ qualified his answer by saying that he should not use that method without a valid reason. GDZ said that he communicated via that method as students would not use their DEC (Departmental) email account. GDZ could not recall whether the Principal had ever instructed staff to not use Facebook Messenger as a means of communication. GDZ said that the social media training was a one hour power point type presentation.
In respect of a letter sent in 2019 from the Director of Child Protection Investigations advising of reportable conduct and an internal investigation into allegations, this letter was according to GDZ never received by him, the reason being that he had changed High Schools and the letter was addressed to his former workplace. However a subsequent letter detailing a number of allegations (wrapping arms around a female student for 20 seconds when in GDZ’s office, in 2019 GDZ exchanging messages with the student by a number of social media platforms, in respect of another student GDZ told her that he had a dream about her, GDZ texted the student, GDZ allowed the student to miss other classes to be alone in GDZ’s office, and by a number of students a range of inappropriate personalised comments on student’s appearance in sports uniform and / or swimmers), was received by GDZ at his new High School placement.
In a response dated 9 September 2020 to the above letter GDZ stated that his actions were sanctioned by his relevant Principal (such as messaging), and that his actions were complementing students on their effort in preparing for an elite program selection and had been misinterpreted by others. In respect of the more extreme and detailed complaints GDZ submitted that he could not recall specific details. In response to his response letter GDZ was asked what ‘poor professional judgements and crossed ethical line’ was he referring to in his letter. GDZ said that he was seeking to support students in distress. It was put to GDZ that he should refer students to professional psychologists when in distress. GDZ agreed and said that the various letters did not make that point. He reiterated that the only ‘ethical lines’ that he might have crossed related to trying to help a student in distress.
During cross examination there was significant conflict on what the findings of the Investigation of school based allegations were or how they should be interpreted. The findings appeared to be those of the Investigator (T.M) not (S.P.) who had signed the covering letter. In any event the Tribunal notes the findings of the Department as Employer that in respect of the allegations (A1-A4) that allegations A3 and A4 occurred, six allegations from a total of 10 grouped as ‘B’ were sustained. In respect of those grouped as ‘C’ four were sustained and two were not sustained. Allegation ‘D’ concerning reported cocaine use was not sustained and allegations grouped as ‘E’ one of the six allegations was sustained. The nature of the allegations are set out generally at [43] above. GDZ appeared to have difficulty during cross examination appreciating that the records of the Department investigations showed these findings, irrespective of whether GDZ personally disagreed with the findings.
GDZ maintained that the letter from S.P. the Director of Child Protection Investigations dated February 2021 via the author’s reasoning and recommendations conveys the view that the findings only go as far as misconduct not sexual misconduct. It was noted from page 113 of ‘R-1’ that GDZ had sustained findings of sexual misconduct and for that reason the Children’s Guardian had been notified.
This issue was of some importance to GDZ as he told the Tribunal in his evidence at hearing that because he was of the understanding that it was sexual misconduct, his then lawyers had written to the Children’s Guardian on that understanding when his clearance was cancelled in 2024.
It was put to GDZ that it was common for him to comment on a student’s appearance. GDZ denied this was the case. Whilst thee was significant evidence in ‘R-1’ that GDZ was taken to concerning student’s appearances of an inappropriate nature (pages 632, 783, 784, 785 and 788) GDZ still maintained in his oral evidence at hearing that he did not comment about the aesthetics of students even though a number of witnesses had made statements to that effect in the investigation records of interview.
GDZ was questioned about a number of instances whereby he spent time one on one with a female student. GDZ’s time investment with one student related on his evidence to the fact that she had an eating disorder. GDZ admitted to giving that student a hug on more than one occasion but only if the student ‘was particularly emotional’. GDZ said that he avoids hugging students but may have ’wrapped’ one arm around a student on occasion, never two. He admitted making ‘positive comments’ to students. An instance whereby GDZ smelt a student’s hair by coming up behind her was the subject of contradictory evidence whereby at hearing he agreed that this occurred which was corroborated by the student’s own evidence at 769 of ‘R-1’. However in GDZ’s written response to some of the allegations dated 6 August 2020 at page 566 of ‘R-1’ GDZ said that: ‘I told her that her hair looked great. I did not smell her hair.’
During GDZ’s evidence in cross examination the Tribunal observed that he in essence admitted certain behaviours which might be considered questionable in the context of student teacher interactions, but regularly couched them with evidence that he could not recall the specifics. Reference to the use of Facebook Messenger and obtaining parents consent to ‘message’ their child is set out in GDZ’s statement at 567 of ‘R-1’ in oral evidence he conceded that he had not obtained the permission of the parents of a female student that he was messaging.
In oral evidence GDZ admitted that he was both close to the specific student that the messaging related to and conceded that he crossed professional boundaries with her but this was mainly in the context of not referring the student to specialist support. GDZ wanted to put on record during his evidence that he had a personal relationship with all of his students. By this the Tribunal inferred that he would always try and deal directly with the individual student about performance and issues rather than the group or collective as a whole.
In respect to the allegations concerning this student as set out concerning the student ‘M’, GDZ was again somewhat ambivalent and contradictory in his answers in evidence during cross examination. He did not agree at first that he said the matters documented by ‘M’ and various witnesses, but then did not deny that he might have said them. Aspects of his evidence was repeated in respect of allegations concerning other students. GDZ was ultimately forced to concede that his answers in the messaging communication to students was not limited to questions put by him concerning a certain sports program, but included other topics and aspects of dialogue. GDZ also conceded that on some occasions students were in his office alone with him.
GDZ was asked why he would regularly have students taken out of their class to come and see him in his office. He said that it was necessary to regularly do this with specific students because of the program that he was preparing for in his area of curriculum expertise. GDZ said this needed to occur one or two times a week. These students were the delegated organisers and needed to work on the preparation for the participant students. However he added that he needed participants to also be out of class at times as he wanted the students to ‘take ownership’ of the program. GDZ agreed with the proposition put to him during cross examination that his relationship with the student ‘M’ was closer than with other students. Again however GDZ reiterated that he had a personal relationship with all of his students.
On the second day of the hearing GDZ’s cross examination continued. Much of the evidence concerned GDZ denying specific words said to have been spoken to students such as ‘your arse looks good’ etc. despite regular reference to the term ‘arse’ by various recipients of the comments and in some instances witnesses. GDZ’s evidence was that the pupils had absolutely gotten it all wrong and nominated a female teacher as being involved in an orchestrated process to bring him down. When other allegations about GDZ being too close to student ‘M’ were put again, GDZ said that they had gotten it all wrong and denied any allegations. Other allegations concerning student ‘C’ and that both the student and her mother would be good to have sex with, as conveyed to a staff member were also denied as being said by GDZ. GDZ denied that he would ever tell a student that they were distracting because of their good looks. These comments were however attributed to GDZ in the material contained in ‘R-1’.
During cross examination GDZ was taken to some of the Messenger messages between him and a student. At page 801 of ‘R-1’ the following is displayed:

(GDZ) 17/7/2019 11:51hrs “My God, you are distracting!!!!!! (3 x Emoji)’

(GDZ 17/7/2019 19:58hrs ‘When I give you a huge compliment and you don’t reply you make me worry. Sorry of I overstepped the mark! (Emoji)’

(Student 17/7/2019 20:35hrs ‘I’m sorry I just wasn’t sure what to say’

GDZ said that his second message above is not necessarily related to the first message. His evidence was in similar terms for the reference to the student not responding (or replying).
GDZ also denied ever making any sexualised jokes in class or comments of a sexual nature including references to sex with his wife or references to the female students engaging in sexual activity with their boyfriends. GDZ’s position was that in all of these matters the students had gotten it wrong.
GDZ was asked about his written evidence at page 180 off ‘R-1’ whereby he referred to student S’ being ‘enamoured with me so made it quite clear to her that any feelings she may have had towards me were inappropriate and that our ‘relationship’ was purely a teacher-student one’. In ‘R-1’ a number of allegations were set out by ‘S’ from the year 2000 when they were half way through High School. ‘S’ had indicated that GDZ told her to message him whenever she wanted to and gave her his mobile phone number. Further references were made by ‘S’ to GDZ indicating that when she finished school their relationship could develop and be together, and that the other children at the school at that time knew. Reference was made (during her statement given in 2020) to GDZ’s current spouse also being a student at the High School at that time. ‘S’ referred to being told by GDZ that she looked ‘hot and sexy’ when attending a school disco at that time. GDZ denied all of these allegations at hearing and also denied the allegation that he drove ‘S’ home with no one else in the car other than the two of them. (GDZ’s spouse did not give evidence in the proceedings about these maters).
GDZ did not accept that his spending time with ‘S’ amounted to ‘grooming’ or ‘S being groomed’. As to whether such conduct might have caused an adverse and negative impact on students, GDZ reiterated that the conduct did not occur.
GDZ was taken to the evidence of ‘M’ at pages 417 and 418 of ‘R-1’. This material referred to when GDZ told a colleague about his colleague ‘M’ and other female staff. When ‘M’ referred to a student that GDZ’s behaviour had impacted at another school he reportedly acknowledged the matter and spoke disparagingly about the student. ‘M’ said that GDZ often spoke like this in groups of adults and at social functions but what had particularly annoyed her was GDZ’s reference that evening to his spouse being a former student. GDZ denied all of these matters at hearing and said that ‘M’ was not the sort of person that he would have had discussions with as ‘she was not the sort of person that you raised such matters with’.
GDZ confirmed that he knew his future spouse better than other students Page 443 of ‘R-1’ contains an interview with the spouse and reference to her being dropped home from training once in GDZ’s car when another student was also in the car, the other student was ‘S’. The spouse could not remember whether on that occasion she or ‘S’ got dropped off first.
GDZ was taken to material produced under summons and confirmed that one of the answers that he had given on pre-employment screening was incorrect as he had mischaracterised aspects of the complaint investigations and findings against him at that time. GDZ denied that in 2023 he made comments concerning women / girls at the beach wearing bikinis, G strings and that as a man he ‘has to look’. He denied attributing such comments to ‘men’s brains being wired differently’. GDZ said in cross examination that what he was referring to in aspects of the misunderstood comments was how society had changed concerning what could and could not be said and done. However GDZ then went on to explain that the words meant that ‘it was difficult for men to see that (women in bikinis) and not see that, presumably meaning not look the other way etc.

GDZ was asked about his responses to the Children’s Guardian to their risk assessment questions. At page 23 of ‘R-1’ onwards the Guardian noted that there was no reference by GDZ to the impact of conduct on students, victims and young persons. GDZ said that was because when he provided those responses he was unaware of any problem or issue causing damage. He noted that from the material ‘some comments had made students uncomfortable’.
At page 140 of ‘R-1’ is GDZ’s letter of 20 February 2024 to the Children’s Guardian in response to their proposal to cancel his WWCCC. During cross examination about this letter the repeated reference to being remorseful was noted in the two page correspondence. GDZ also refers to ‘victims’ in the letter. In the letter GDZ commits to preventing future misconduct, having undertaken a period of reflection and significant personal growth in the interim. Past mistakes and concrete steps to prevent repetition are also referred to in the letter. It was put to GDZ that these matters were significantly at odds with his oral evidence during his lengthy two day cross examination where he ostensibly denied any wrongdoing. The Tribunal noted that in response to this evidence GDZ had stated that he was remorseful.
GDZ agreed with Counsel’s proposition that from 2019 he was somewhat hyper-vigilant not to ‘put a foot wrong’. However when he left the State education system GDZ agreed that in a non Government school he was no longer under the oversight and monitoring of the NSW Department of Education and Communities in respect of his professional conduct and performance.
In re-examination GDZ emphasised that he places significant reliance on annexures 8 and 9 to his ‘A-2’ bundle which provide an analysis and rebuttal of aspects of the misconduct and sexual misconduct allegations and investigations and findings. In respect of the Messenger messages referred to at page 801 of ‘R-1’ and outlined at [65] above, GDZ could offer no insight into why he could not recall the exchange independently in any detail prior to being taken to the documents in cross examination.
Utilising the s 38 NCAT Act provisions the Tribunal inquired with GDZ as to why he did not disclose his history at the time he went to the non State High School. GDZ said that after he went back to school based work after being placed on administrative duties for four months, he had made a complaint about the new principal of bullying which GDZ said was upheld. GDZ said that he wanted to put the trauma behind him and in early 2024 applied for a position at a different non Government school. He said that during that vetting process the status of his WWCCC was raised to which he said that it was being assessed. GDZ said that ultimately without the Clearance he could not take up that position.

Applicant’s submissions

GDZ at the end of his evidence submitted that he did not have the funds to follow up and obtain a psychology or similar report as to risk. He said that he had obtained costing for a forensic psychologist. The Tribunal noted that as GDZ is not classified as an offender in that he does not have a criminal history of findings of offending then such a report would be of some value but lesser value due to the absence of convictions to balance the accrued data against. He also referred to his referees which formed part of his evidence.
In written submissions including some of his material at Annexures 8 and 9 and 15, GDZ maintained his innocence of transgressions. Reference was made to the apparent divergence between the Parry findings and the McKean/Fiennes recommendations. This concerns whether GDZ engaged in misconduct or conduct characterised as sexual misconduct. The submission focuses on this issue and the purported error by the PES officers in referring the matter to the Children’s Guardian at all.
Annexure 9 details GDZ’s criticism of colleague ‘C’ who reiterated various inappropriate comments that the student had reportedly received. ‘C;’’ maintained that they had heard those comments as well from GDZ in the staffroom. Criticisms of the minimal interviewing of staff other than ‘C’ was also raised by GDZ as was a perception that the investigator was subjective and had already determined that the allegations were well founded and now needed to make the evidence support that position.
Annexure 15 was also significantly relied upon. GDZ had subtitled that Annexure as: Who Were the Victims. Having analysed the investigation transcripts and records of interviews and statements, GDZ submitted that there was no evidence that any of the students regarded themselves as victims, nor was there any evidence or indications from students that they had suffered harm as a result. Again GDZ has issues with how the investigation was conducted especially the interviews with student ‘M’. GDZ submits that ‘M’ is the main victim and she was a victim of the investigation, not a victim of him as a result of his conduct.

Respondent’s submissions

In oral submissions at the conclusion of the evidence Counsel for the Children’s Guardian submitted that the matters complained of which resulted in the adverse risk assessment fell into three categories.
The categories concerned inappropriate comments about female persons, staff, students and others. References to the targets of these comments bodies such as ‘butt’ ‘arse’ and the jokes of a sexual or sexualised nature were clear. The demonstration by GDZ of a non professional interest in these matters was also a matter of concern. This concerned his interest in behaving inappropriately by his words gestures and general banter.
Counsel referred to the references submitted by GDZ which were included Part 6 of GDZ’s bundle at ‘A-2’. Many of these references were from former students of GDZ. It was submitted that no referees were in a position to comment on the allegations. ‘S.W.’s reference at [5] was submitted as the observation of one person. Here the referee had stated that they did not witness any inappropriate conduct nor did any student appeal to the referee about anything inappropriate by GDZ. Likewise with the reference of ‘L.G.’ at [4].
The Guardian submitted that the totality of the references do not assist the Tribunal in determining the reasonable person test or the public interest test at s 30 (1A). Additionally the Clinical Psychologist’s report that GDZ had submitted (dated 31 May 2024) does not go to the issue of risk. (The Tribunal notes that the report significantly focuses on the impact of the investigation and cancelation process on GDZ’s person and refers to his own diagnosis).
Counsel submitted that the Tribunal should treat GDZ’s evidence with a high degree of caution. This was because his interest in the outcome must be weighed in assessing the evidence, and GDZ’s history of false allegations to the PES investigator and the other governing bodies outside of the Government sector when seeking alternate employment, and that when pressed GDZ had conceded at least once in his evidence that he had been untruthful to the PES investigation.
It was submitted that if the Principal allowed GDZ to utilise Messenger to communicate with students that he would have departed from his own Code of Conduct and email to staff. GDZ’s evidence on the Code and the basis of the exchanges at page 801 of R-1’, the messenger communications, was unsatisfactory. This was because he said that he only did the online training, and some training at staff meetings on the Code. GDZ gave evidence that he would not have hugged the student ‘Ms ‘M’ and then later conceded that he had. Additionally in respect of giving students lifts in his car he initially denied this but then conceded that he had given lifts to two students. As a result, Counsel submitted that the Tribunal should apply caution to GDZ’s evidence.
The Children’s Guardian submitted that there was no doubt from the totality of the evidence that GDZ made comments about female students and female colleagues appearances and their aesthetics and that these comments were broadcast to other students.
In addition. the complaints at the non government school in more recent years were submitted as being credible based on an assessment of all of the available evidence about them.
In respect of the mandatory considerations under s 30 of Act the Children’s Guardian submitted that the matters are serious in that GDZ made comments concerning female students and that there is evidence that those comments upset the students, thus causing harm to them. Counsel concedes that the conduct is not at the level of meeting the elements of the commission of an offence including grooming, but that the foundations were laid by some of GDZ’s behaviour. Counsel submitted that the risk of GDZ harming children is greater than that of other adults.
In respect of GDZ’s personal interest in all students, the Children’s Guardian submitted that this would cause the reasonable person to hold concerns about the risk of harm GDZ may hold for their child. They submitted that as a person who crossed professional boundaries the reasonable person would not allow GDZ to engage in child related work with their child unsupervised.

Consideration

Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

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

GDZ’s application to the Tribunal is brought about by an adverse risk assessment. There are no offences disqualifying GDZ from obtaining a WWCCC. The adverse risk assessment was triggered by the respondent’s knowledge of a number of workplace investigations and sustained findings arising from those investigations. The risk assessment came about because of the more recent allegations. The conduct does not involve sexual offending (in that no sex based or assault crime has been committed). However it involves in one category, jokes, comments of a sexual nature directed at female students (and at times colleagues) which were both disparaging of and humiliating for the recipients.
The conduct could be characterised as sexual misconduct using definitions from the Children’s Guardian Act 2019 Act in that under s 22 conduct is sexual misconduct of it occurs in the presence of a child and is sexual in nature but not a sexual offence. Matters such as descriptions of sexual acts for no legitimate reason, sexual comments conversations and communications and comments to a child that express a desire to act in a sexual manner towards the child or another child are outlined in that Act.
In another category the conduct that brought about the risk assessment concerns GDZ’s relationships with female students that crossed professional boundaries. Inappropriate messaging of female students, making students feel uncomfortable and creating close relationships with the child. These actions can all cause harm to a child of a mental or emotional nature. Feelings can develop with children who may misunderstand actions even when grooming is not occurring.

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

It is clear that some of the matters referred to under s-30 (1) (a) cover a period of time from 1996-1997 and 2000 and more recently 2015 but are generally historic in nature. However some matters have occurred more recently especially in the period since GDZ left the State Education system due to the adverse findings. Many of the more serious allegations arise in the last five years.

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

The allegations concern inappropriate and unprofessional behaviour with female child students. GDZ was in his mid to late 20’s when the 1990’s matters arose and was in his mid 40’s when the matters in 2015 occurred. Then the subsequent matters occurred, GDZ was in his late 40’s to early 50’s.

(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.

In respect of the victims they were all female in their later years of High School being years 10, 11 and 12. GDZ raised the point that a small suite of allegations concerned female students who by the time may have turned 18. All of the victims were vulnerable in that GDZ was an adult and they were children. Even if a small number had turned 18 GDZ was still their teacher and in a position of trust and authority over them. The Departmental Policies treat all school students the same. In that regard any victims would be especially vulnerable.

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

At the time of the matters GDZ was from approximately 28 to 52 years of age. The difference in age would have ranged from 10 to 37 years depending on the age of the student at the relevant time and what year the conduct occurred.

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

GDZ knew that the victims were school age children.

(g) The person's present age.

GDZ was 53 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age. In our view in the absence of strict offending, this factor is of limited relevance, predominantly because GDZ’s approach seems to form part of his personality or manner of dealing with females.

(h) The seriousness of the person's criminal history and the conduct of the person since the offences occurred.

GDZ does not have a criminal record or any criminal history There is no evidence of any adverse matters of a formal nature coming to attention since GDZ resigned from his last teaching position at the non Government School in late 2023 with the cancellation of his WWCCC.

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

GDZ provided a Psychologist Report, a number of references and his own evidence. The report concerned GDZ’s mental health whereby he sought counselling following the impact of the workplace investigations and the risk assessment process on GDZ’s own well being. The report does not indicate any treatment in respect of understanding his conduct and to implement coping strategies to prevent a reoccurrence. GDZ’s own evidence is that he engaged in a process of ‘self-reflection’.
The report indicated that the only steps undertaken were exploring therapeutic issues related to addressing symptoms of stress arising from the financial consequences of having his WWCCC cancelled and not being employed as a senior teacher.
GDZ has engaged in a pattern of similar behaviour for approximately 25 years off and on. The behaviour concerning female high school students is both historical and also fairly recent. The Children’s Guardian noted that the complaints span many years and that even as recently as 2023 there was a further complaint of a similar nature (concerning comments of a sexual nature).
GDZ was reprimanded, cautioned and subject to monitoring in March 2021 in respect of engaging in personal rather than professional relationships with students, as well as inappropriate comments to students and sexualised comments. However he still continued to attract complaints in 2023 in different employment circumstances. This it was submitted identifies a significant risk that given the opportunity the behaviour will be ongoing.
GDZ appeared to the Tribunal to be in denial that anything of substance had transpired. On the one hand his oral evidence and aspects of his written evidence indicated regret and remorse, but on the other hand he was unaware of what he was being remorseful for as he had no regrets about his conduct. Likewise his evidence changed a number of times in the hearing initially denying matters, then conceding those matters when faced with irrefutable evidence. But at later instances in his cross examination GDZ appeared to forget those concessions and sought to freshly deny matters when put to him in a slightly different context of for a different purpose. We do note that GDZ was self represented and was dealing with a significant case where the personal stakes for him were high.

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

There is no relevant evidence or matters to consider under this criteria.

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

Some of this material is referred to above. The references attest to GDZ’s skill as a teacher with observations that he acted professionally. The references do not provide any relevant material specifically about GDZ’s risk to children. Both colleague and student references refer to GDZ’s character, but provide no real insight into his risk to children.
As noted above the expert report focuses on the impact of the processes on GDZ, not his risk to children. Likewise his analysis of the evidence and material points to flaws and injustices in the process, not whether he is a risk to children beyond written denials of conduct and subsequent rebuttals of inferences arising of him being a risk of harm.

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

There is no material obtained under s 36A.

(k) Any other matters that the Children's Guardian considers necessary.

As noted at [86] the Children’s Guardian’s concerns in their post hearing submissions are set out above. Counsel on behalf of the Children’s Guardian had submitted that the Tribunal should treat GDZ’s evidence with a high degree of caution.

Consideration of the evidence

GDZ’s rebuttal of the Guardian’s decision is predominantly to refute the matters put against him, and to the extent necessary he apologises if his actions caused problems or even harm. Aspects of the complaints he characterises as part of a vendetta by certain colleagues who in the main or exclusively are women. Other aspects of the complaints he puts down to a misunderstanding (on multiple occasions) as well as misconstruing by others that his actions were not well intentioned. GDZ mainly maintained that all of his actions were directed at supporting students.
It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 at p362. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well being of children and young people. We have based our consideration on the evidence given by GDZ at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing.
At pars 29 - 33 of the case of BKE v Children’s Guardian [2015] NSWSC 523 (BKE) the Court observed how these matters should be assessed and analysed in the context of considering a risk of harm in the context of safety of children. At [29] – [33] of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

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

Findings

The necessity to make findings on adverse matters was set out in part in BKE and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that case His Honour Harrison J said that the first proposition is to determine whether a positive finding can be made or whether the allegations can be quickly addressed as groundless. If a positive finding can be made then that matter will generally have a decisive impact on the outcome of the application. In CFW the Court also referred to a lingering doubt where a positive finding could not be made and the matter was left open. The Court observed that this would count against the applicant.
We note however that in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

Despite some admissions during cross examination, all of the allegations were refuted by GDZ. None of the allegations as found concerning the Departmental and other workplace investigation resulted in criminal matters being pursued, but such matters whilst positive for GDZ, do not necessarily limit the harm that may have been experienced by children by his actions.
GDZ focused on flaws in the process of both his former employers and the Children’s Guardian. Bearing in mind that the ultimate consideration for the Tribunal is whether today GDZ remains a risk to the safety of children the approach of prior inquiries and decision makers is of no great relevance to our task.
Essentially whether matters should have been referred to the Children’s Guardian and whether they should have conducted a risk assessment and reached the conclusion that they did, are not relevant to our consideration. It is only the latter matter, the conclusion arising from the risk assessment that becomes the starting point for the Tribunal. The other issues and perceived injustice and unfairness in prior processes are not relevant. In saying that we explained these issues at various times throughput the two day hearing as part of our statutory duty to explain the practice and procedure of the Tribunal.
In respect of the allegations it was not possible to test that evidence further in the scope of the hearing. As noted on a number of occasions GDZ conceded certain conduct and behaviours. However we observed that he failed to understand the import of this behaviour (and the other matters that he refuted), as sitting in a risk of harm context when directed at children.
Likewise the fact that student’s did not raise with him their concerns about his behaviour or his repeated insistence during the hearing that students did not refer to themselves in the voluminous material as victims, in our view further illustrates GDZ’s lack of understanding of the issues at play in the risk assessment and these proceedings.
In our view the written material contains significant evidence that the recipients of GDZ’s behaviour were adversely impacted by the behaviour. Students described feeling ‘uncomfortable’, and ‘violated’, and being ‘off put’ by his actions to varying gradients. The position that GDZ appears to hold that his actions (to the extent conceded) were benign and broadly harmless is in our view misplaced. We have already addressed that his actions were not ‘victimless’. In addition we find that the actions were inappropriate in that they would clearly be capable of causing harm to a child. The absence of assaults or criminal conduct does not remove the potential of risk of harm, it merely illustrates that the consequences of harm for both perpetrator and victim may be less adverse that they would otherwise be.
We have decided that we do not need to embark further on an examination of the evidence of each allegation and make findings. This is particularly so when we are unable to test the evidence further.
In our view, the real issue from a risk assessment perspective is the nature, similarity and frequency of the matters over an extended period of time. We accept that when one looks at the period of time (over 25 years) the ‘adverse matters’ appear spread out. However there is evidence of a similar approach to professional boundaries by GDZ throughout most of his career. In recent years whilst clear in the knowledge of the PES Departmental investigations concluded in his earlier postings, further complaint’s arise in the private / non Government sector absent any knowledge of the earlier complaints and findings.
We therefore do not believe that there is a need to make positive findings on every allegation. In that regard we adopt the position we set out by the Court of Appeal at [129] below where a rote consideration of each matter is not required, rather a consideration of what can be ascertained in the context of risk.
In the case of CXZ v Children’s Guardian [2020] NSWCA 338 the Court considered the protective rather than punitive nature of the Act and the working with children scheme.
At [46] of CXZ in reference to the High Court’s approach in M v M, Simpson AJA observed:

46. In the High Court the allegations of sexual abuse were treated as “central to the case” (p 71). The Court recognised, however, that (in circumstances where the relevant legislation enjoined the court to regard the welfare of the child as “the paramount consideration”), the court could not be “diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse” (p 76). In that context, the Court said (p 77):

“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegations as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. ...

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”

The paramount consideration therefore remains in determining matters pertaining to the welfare of children and not being focused on determinative conclusions about specific allegations.
Our substantive role is to assess risk, and whether specifically GDZ poses a risk to the safety and well being of children and young people. As noted at [115], we have based our consideration on the evidence provided at hearing and in documentary form. But that consideration is focused on matters concerning whether GDZ is a risk to children, not matters relating to unfairness and procedural breaches in processes.
As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.
The case of Children's Guardian v CXZ [2019] NSWSC 1083 (which if the precursor to the Court of Appeal case of CXZ outlined above), addressed the matter of how the Tribunal should consider risk when there are numerous adverse matters, or issues which were given weight in determining that an applicant or holder of a clearance was a risk to the safety and well-being of children.
At [294] in Children's Guardian v CXZ [2019] NSWSC 1083 the Court observed that the Tribunal needs to consider the cumulative effect, and to do so in the following manner.

294. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).

295. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.

In these proceedings we find that GDZ’s behaviour whilst criminally at the lower end of the scale, is recurrent and unprofessional behaviour that is inappropriate in both the workplace and in a context where there is a duty of care around vulnerable persons under his authority, namely school students.
Whilst in society his comments might be classified as sexist, unprofessional, derogatory, offensive, calculated, intimidating and humiliating, in a child education setting these comments take on a different and additional characteristic in that they cause harm to children.
The evidence before the Tribunal establishes that school students were harmed by GDZ’s actions. Those actions occurred on a regular basis over 25 years and also involved crossing boundaries and failures to adhere to provisions designed to keep children safe from harm. Not using social media or messaging applications, not spending time one on one with students, and adhering to warnings and taking on board criticism from superiors, would have all gone some way to preventing this situation.
In an industrial context GDZ’s behaviour might be characterised as an inability to behave professionally around women. However in a school setting where children are not only under a duty of care but also reliant on GDZ for appropriate support (in a professional context only), these actions become more concerning and are of greater gravity than what might otherwise have been classified as a human resources problem.
GDZ appears to have run his applications for a WWCCC as a rebuttal of the case or allegations against him. Indicative of this are his regular submissions that in some circumstances (recently) the students might have already turned 18, that no student referred to themselves in the written evidence as a ‘victim’, and that others (some female colleagues) had vendettas against him. Throughout this process notwithstanding the regular concession during his lengthy cross-examination that some of the conduct did occur, GDZ failed to demonstrate any insight into his actions and the impact that they had on others, in particular causing harm to children.
We place significant weight on this issue, in addition the lengthy and repeated pattern and the evidence that children were harmed by GDZ’s actions. Whilst in respect of seriousness we again note that the matters against GDZ are at the lower end of any range of severity, such matters are balanced against the circumstances and the impact of the matters relating to GDZ’s conduct.
Finally the lack of insight demonstrated by GDZ, especially in later years when adverse findings were already made but behaviours and complaints continued, as well as the extremely limited evidence of any insight demonstrated at hearing, is the reason that the issue as to risk to children concerning GDZ remains, and we so find.
In our view the risk is currently greater than that of any adult harming a child, in converse reference to the observation of Young J in the case of ‘V’, at [42].

We note in making this preliminary finding that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.
In reaching this position we note that it is a protective jurisdiction, and that the interests of the safety and well being of children override any other interests including GDZ’s right to return to his profession as a teacher.

Section 30 (1A) consideration and findings

The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition, the section requires that the making of the order be in the public interest.

(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.

Having made the finding that we have, we are not required to have regard to this section before we consider making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children in accordance with this Act. However for completeness we address this issue.
The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order.
If a reasonable person was asked to adjudge the matter, if they had passed the risk issue and arrived at s 30 (1A), we believe that having viewed all of the evidence and material, and the sustained patterns of behaviour in the context of unsupervised child related work, they would hold concerns. These concerns would include the reported impact of that behaviour and the way the affected students reported that the behaviours made them feel. The reasonable person would have significant concerns about letting the applicant (GDZ) have unsupervised access to their children. This concern arises in the context of GDZ maintaining a relationship of teacher with their children (especially daughters) in the context of unsupervised child related work.

We also do not believe that the evidence establishes that it would necessarily be in the public interest to grant the clearance. GDZ’s right to teach and the need for teachers to engage in their profession is a balanced matter of public and private interest. GDZ’s referees attest to him being a skilled teacher in his area of speciality and in that regard there would be merit, and it would be in the public interest to allow him to teach. However for the reasons that we have outlined those skills should not continue to be utilised in respect of children, at least until GDZ is able to establish that he has modified his behaviour and developed insight and mitigation strategies to limit the risk of reoccurrence of such behaviour. As such the granting of a clearance at present to GDZ, would not be in the public interest.

Conclusion

For the reasons set out above, we reach the following conclusion.
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant (GDZ) currently poses a risk to the safety and wellbeing of children.
The evidence also establishes that, in accordance with s 30 (1A) (a) that a reasonable person would not allow his or her child to have direct contact with GDZ that was not directly supervised by another person while GDZ was engaged in any child-related work, and we so find.
As we have made the finding that we have in the paragraph above, we are not required to make a finding that granting GDZ a WWCCC would be in the public interest in accordance with s 30 (1A) (b) as sub-sections (a) and (b) are conjunctive. However we note that at present the evidence indicates that such a finding may not be available. In any event because of the s 30 (1) and (1A) (a) findings any further finding would be of no import.
It therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
The application will therefore be dismissed.

Orders

The decision of the respondent dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed.
The application is dismissed.

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: 31 March 2025

Medium Neutral Citation:	GDZ v Children’s Guardian [2025] NSWCATAD 76
Hearing dates:	2 September 2024, 3 September 2024 (Submissions closed 17 October 2024)
Date of orders:	31 March 2025
Decision date:	31 March 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member (Legal) E Hayes General Member (Community)
Decision:	(1) The decision of the respondent dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed. (2) The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Children’s Guardian Act 2019 Civil and Administrative Tribunal Act 2013
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Texts Cited:	Nil
Category:	Principal judgment
Parties:	GDZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Strickland (Respondent) Solicitors: Self Represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2024/00124866
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.