GGS v Children's Guardian

[2025] NSWCATAD 60

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GGS v Children’s Guardian [2025] NSWCATAD 60

Hearing dates:

10 February 2025

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member
P Foreman, General Member

Decision:

(1) The reviewable decision of the Respondent is affirmed.

(2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.

Catchwords:

ADMINISTRATIVE LAW - administrative review -reviewable decision - review by Civil and Administrative Tribunal

ADMINISTRATIVE LAW - refusal of working with children check clearance - no conviction - apprehended domestic violence order - evidence - mandatory considerations - offence - reasonable person test - public interest test

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

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

Children’s Guardian v CF1 [2020] NSWSC 1673

Office of the Children’s Guardian v EQE [2022] NSWSC 871

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GGS (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2024/00094067

Publication restriction:

Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.

REASONS FOR DECISION

1. This is an application for review of a decision of the Children’s Guardian to refuse the applicant a working with children's check clearance pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“WWC Act”).

Background

2. The applicant is forty years old.

3. He was married but subsequently divorced.

4. There were three children of the marriage. The oldest was born in 2013 and the youngest in 2019.

5. There is evidence of difficulties in the marriage over a period of years. In October 2022, the allegation was that the applicant made a threat of self-harm. That threat was made to his wife. When she tried to stop him, he allegedly placed both his hands around her neck and tried to choke her so that she was not able to breathe for approximately 15 seconds. The further allegation is that having let go, he yelled that he wanted to kill everybody in the household.

6. The applicant's wife then called the police. When the police arrived, he again made threats of self-harm and the police took the applicant to hospital under s 22 of the Mental Health Act 2022 (NSW).

7. The applicant was discharged on the following day. His discharge transfer document stated that the risk of violence/aggression was “low”.

8. Later in 2022, the evidence was that the applicant was in the kitchen of his residence looking through divorce papers. His wife asked to speak to a lawyer which allegedly caused the applicant to become upset. He picked up a knife and pointed it at his wife. He also made verbal threats. His wife then signed the divorce papers saying that she had fear of the applicant.

9. In June 2023, the wife attended a police station and produced a letter to the NSW police which detailed the above incidents and other alleged acts of violence during the marriage. They included allegations of being assaulted when sex was refused at a time the wife was pregnant with her first child. There were also allegations of beating and abuse of the children “mercilessly” and beating of the wife when she tried to intervene. There were further allegations of rape and various types of control. The kinds of control alleged included preventing the wife from talking to her friends and relatives, and control and monitoring of the wife’s phone, messages and finances.

10. Later in mid-2023, the applicant was charged with intentionally choking a person without consent, “stalk/intimidate intend fear physical etc harm (domestic)”.

11. Subsequently, a provisional apprehended domestic violence order (“ADVO”) was made with the persons in need of protection being the wife and the three children.

12. The charges were heard in early 2024. The applicant and his wife gave evidence. The magistrate accepted that the wife had been mistreated throughout her marriage and preferred her evidence to that of the applicant. However, there was no corroborating evidence produced by the police and a reasonable possibility that what the applicant said was true. The court therefore could not be satisfied beyond reasonable doubt that the events as alleged had occurred and the charges were dismissed.

13. However, in relation to the ADVO application, the court was satisfied on the balance of probabilities that the person in need of protection had reasonable grounds to fear, and made a final ADVO for a period of two years expiring in March 2026. That order prohibited the applicant from approaching the children's school, and going within 100 metres of the workplace or home of the persons in need of protection.

14. There was no evidence that the applicant had failed to comply with conditions of the ADVO.

15. On 7 August 2023, the applicant applied for a volunteer clearance nominating adult household member.

16. The applicant was referred to risk assessment and an interim bar was imposed on 31 August 2023.

17. On 11 December 2023, the applicant’s application for working with children check clearance was refused.

18. On 11 March 2024, the applicant filed an application for administrative review of the respondent’s decision to refuse his application for a working with children check clearance. That application was made to the Civil and Administrative Tribunal (“Tribunal”).

19. The applicant underwent a further psychological assessment in late 2024 for the purposes of an application for Australian citizenship. The assessment report stated he was a low risk to himself and others. It recommended psychological counselling to support him in managing external stressors. The applicant gave evidence that he had attempted to enrol in a men's behavioural change programme but was deemed ineligible because of his risk profile being too low.

Applicant’s rights of review

20. 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 (NSW) (“ADR Act”) of the decision within 28 days after notice of the decision was given to the person. The application was made out of time but the Tribunal extended the time for lodging the application to 11 March 2024.

21. The task of the Tribunal is set out in s 63 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”). It provides as follows:

“63 Determination of administrative review by Tribunal

(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”.

Consideration

22. The object of the WWC Act is set out in s 3. That object 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”.

23. The paramount consideration in the operation of the WWC Act is set out in s 4. It is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”.

24. Section 30 sets out a number of mandatory considerations in determining an application for a working with children check clearance. They are:

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

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

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

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

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

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

(g)  the person’s present age,

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

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

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

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

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

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

25. Section 18(2) provides as follows:

“The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children”.

26. Further, the Tribunal under a 30(1A):

“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.

27. The question for determination in this matter are as follows:

1. Whether the applicant poses a “risk to the safety of children”;

2. Whether the tests set out in s 30(1A) would be satisfied.

Risk to the safety of children

28. The first question is whether the applicant poses a risk to the safety of children. Section 5B provides that a reference in the WWC Act to a “risk to the safety of children” is a reference to “a real and appreciable risk to the safety of children”.

29. The approach to determining whether or not a risk of the relevant kind exists was described in the following terms in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523. Beech-Jones J said, at [33]:

“ …. it may be that NCAT can be satisfied that an allegation …. 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”.

30. That approach was accepted in Tilley v Children’s Guardian [2017] NSWCA 174, where the Court of Appeal said that “some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child”.

31. Where there is competing evidence to be weighted up, the allegations in issue cannot be regarded as “groundless” (Children’s Guardian v CF1 [2020] NSWSC 1673, at [80]).

32. Section 30(1)(a) and (b) set out mandatory considerations for the Tribunal to take into account in its determination, relating to “offences”. The allegations made against the applicant include threats made with a knife and abuse over a period of years. The abuse alleged includes physical and sexual violence, as well as financial and other forms of control. Attempted strangulation of his wife was one of the particular matters alleged. The allegations also included violence against the children. The alleged conduct began twelve years ago and continued into 2022.

33. In the proceedings before the court, the charges against the applicant were, however, dismissed. The magistrate found that the allegations against the applicant had not been proved beyond reasonable doubt and that what the applicant said may have been true, even if the magistrate preferred the wife’s evidence.

34. In these circumstances, where no offence has been proved, we do not think that the considerations set out in paragraphs (a) and (b) (and (h)) of s 30(1) can carry significant weight, including in terms of “seriousness” within the meaning of paragraphs (a) or (h). The matters in paragraph (b) going to temporal matters surrounding the relevant offences also cannot carry much weight. We accept that in addition to “offences”, paragraphs (a) and (b), also refer to “matters” and paragraph (h) refers to “conduct” that may capture the allegations against the applicant. Nevertheless, in the absence of proven facts relevant to the charges before the court, we are unable to place much weight on the considerations set out in these paragraphs.

35. Paragraphs (d), (e) and (f) respectively addresses the age and vulnerability of the victim, the age difference and relationship between the applicant and the victim and whether the applicant knew the victim was a child. Section 30(1)(i) refers to likelihood of repetition by the person of the offences or conduct and the impact on children of any such repetition. These are relevant matters. We also accept that the impact of family violence on children is serious. However, in the absence of a proven “offence” in the sense required by s 30(1), these matters and conduct cannot carry significant weight in the particular circumstances of the case.

36. Section 30(1)(il) sets out as a relevant consideration, an order of a court or tribunal that is in force in relation to a person. While no conviction was made, the court in the present instance made a final ADVO that is current until early 2026. We think that this order has relevance and carries weight but does not determine the matter in favour of the respondent having regard to all of the considerations s 30 brings to bear upon the matter, in the absence of a proved offence.

37. Relevant considerations include any information given by the applicant in, or in relation to, the application (s 30(1)(j)). The applicant relies on certain character references. They are four in number. They do not on their face indicate that the referees knew about the charges against the applicant and the allegations his wife had made. There is also nothing on the face of the character references to indicate that the referees knew about why they wrote their character references, namely the context of these proceedings. For these reasons, we cannot place much weight on these character references.

38. The applicants produced in evidence a psychology report from late 2024. It was prepared by the applicant’s treating psychologist for the purposes of supporting evidence for the applicant’s application for Australian citizenship. The report included evidence of matters as to his mental state. The writer of the report was also aware of the ADVO. However, there was nothing in the report to indicate that the writer knew about the application for clearance for working with children. Having regard to the context of the report, there are no inferences we can draw from the report as to whether or not the applicant poses any risks for the purposes of a working with children check clearance, including any matter within s 30.

39. Accordingly, we do not think that the evidence set out in the report is sufficient to have a bearing on the evidence we rely on in coming to the conclusions we have reached.

40. On balance, we do not think that sufficient weight can be given to the matters set out in s 30(1) as are relevant, to find that the applicant poses a real and appreciable risk to the safety of children. Importantly, the absence of a proven offence carries significant weight in the circumstances, in coming to the conclusion we have reached.

“reasonable person” and public interest tests

41. Despite the fact that we have not reached the conclusion that the applicant poses a risk to the safety of children, the applicant will not be able to succeed in these proceedings if it is shown that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the affected person was engaged in any child-related work. The public interest test must also be satisfied.

42. We are in agreement with the respondent’s submission that a reasonable person would not allow his or her child to have direct contact with the applicant within the meaning of s 30(1A). A reasonable person with knowledge of the ADVO in place against the applicant, in our opinion, would not allow his or her child to have such direct contact with the applicant. This a matter that s 30(1)(il) brings to bear upon the circumstances of the case.

43. Alternatively and additionally, knowledge of the charges brought against the applicant, even if not proven beyond reasonable doubt, are also likely to have the result that a reasonable person would not allow such contact with the applicant. The court indicated a preference for the evidence of the applicant's ex-wife as to the allegations made against the applicant of domestic violence. This is a matter that a reasonable person would take into account.

44. As we have stated above, the criteria set out in s 30, do not depend on a proven offence. The evidence of the wife preferred by the magistrate includes “matters” falling within paragraphs (a), (b), (c) and “conduct” falling within paragraphs (d) and (h). These matters and conduct include the violence perpetrated on the children and the wife during the years of the marriage, beginning when the applicant was aged about 25, until he was nearly 40. The considerations set out in paragraphs (e) and (f) and (g) also carry weight as the applicant’s children were themselves subject to violence during the marriage. The eldest was about 12 when the marriage ended. It must follow that the abuse in issue occurred when the children were of a young age before their teenage years. The ADVO is a matter that comes within paragraph (il). These are all matters relevant to what a reasonable person would take into account.

41. There are no other matters that carry weight and allow for a different conclusion, including the matters discussed at [37] and [38] above. We do not give much weight to the matters set out in these paragraphs, for the reasons given in the paragraphs.

42. We are of the opinion that the “public interest” test set out in s 30(1A) will not be satisfied in the present case. In Office of the Children’s Guardian v EQE [2022] NSWSC 871, the Supreme Court said:

“In Secretary, Department of Justice v LMB [2012] VSCA 143 the Victorian Court of Appeal said of the equivalent Victorian provisions:

The public interest

[24]   As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth :

“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.”

[25]   In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in “protecting children from sexual or physical harm”. The Act does this by “ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body”.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

[27]   Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act.

[28]   In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because:

(a) a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;

(b) the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;

(c) the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;

(d) Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court - the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.

In PJR v Secretary to the Department of Justice [2006] VCAT 2455; (2006) 25 VAR 336 the Victorian Civil and Administrative Tribunal said at [45]:

The notion of “the public interest” is broad. Certainly I would regard a central consideration to be the need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm. In this regard, many of the factors that are relevant in deciding whether the giving of an assessment notice would not pose an unjustifiable risk to the safety of children are also factors that are relevant in assessing whether it is in the public interest to direct the giving of such an assessment notice. However the notion of “the public interest” might also embrace other considerations. In interpreting similar legislation in New South Wales it has been said that the right of a person to engage in work is relevant [see R v New South Wales Commission for Children and Young people [2002] NSWIR Comm 101 and Commission for Children and Young People v V (2003) 56 NSWLR 476;[2002] NSWSC 949 at [38]]. A similar contention might be advanced to the effect that a person has a right to engage in community affairs. It is not appropriate to seek to define the boundaries of what is in the public interest”.

47. Having regard to the central concern of protecting children from sexual and physical harm, we think that the public interest consideration against a clearance is established, having regard to the ADVO and evidence of the history of violence on the part of the applicant. We note in this regard the magistrate’s preference for the wife's evidence compared to that of the applicant as to that history in the proceedings in the local court brought against the applicant.

48. We rely on the weightage we have given to the factors set out in s 30 above in applying the “public interest” test, in particular, the existence of the ADVO and the wife’s evidence as to the matters within s 30 (see [42] - [45] above).

49. The applicant expressed concerns about the impact of failing to obtain clearance upon his employment prospects. In particular, he gave evidence that clearances were required by employers for the kinds of work he sought, even in circumstances where the work did not involve working with or contact with children.

50. We accept that requirements by employers for clearances to be obtained by members of the public seeking employment in jobs not involving working with children is a matter of public interest. Nevertheless, these are considerations arising between employers and employees and are not considerations that can outweigh or have much of a bearing on the public interest considerations relevant to the protection of children under the WWC Act. To the extent that a member of the public is adversely impacted by an employer’s requirement for clearances in circumstances where they may not be necessary for the job, this is a matter between the employer and employee and cannot inhibit the operation of the WWC Act in accordance with the statutory purpose set out in ss 3 and 4.

51. Even if the public interest test in s 30(1A)(b) could be satisfied, the failure to satisfy the test in s 30(1A)(a) would, in any event, prevent the Tribunal from making an order granting clearance.

52. It is possible that the applicant will have a greater likelihood of meeting the reasonable person and public interest tests at a time in the future when the ADVO is no longer in place and he is in contact with his own children.

53. For the reasons set out above, we are not satisfied that the tests set out in s 30(1A) have been satisfied. Accordingly, we are unable to make the order sought by the applicant granting him clearance.

Conclusions

54. The decision of the respondent under review is confirmed.

Orders

1. The reviewable decision of the Respondent is affirmed.

2. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.

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

Registrar

Decision last updated: 11 March 2025