GHI v Children's Guardian

Case •

[2025] NSWCATAD 245

•

30 September 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: GHI v Children’s Guardian [2025] NSWCATAD 245
Hearing dates: 17 February 2025
Date of orders: 30 September 2025
Decision date: 30 September 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
E Hayes, General Member
Decision:

(1) For the conviction entered on 15 December 2003, of the offence of Aggravated indecent assault-victim under the age 16 years, s 61M Crimes Act 1900, declare that GHI is not a disqualified person for the purposes of s 18(1) of the Child Protection (Working with Children) Act 2012.

(2) Make an enabling order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012.

(3) GHI is to be granted a clearance under s 28(6) of the Child Protection (Working with Children) Act 2012.

Catchwords:

ADMINISTRATIVE LAW - Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - where disqualifying offence under former 61M of the Crimes Act 1900 (NSW) Aggravated indecent assault-victim under the age 16 years – assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - where onus of proof discharged by applicant - where enabling order granted

Legislation Cited:

Child Protection (Prohibited Employment) Act 1998

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

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

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

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CXZ v Children's Guardian [2020] NSWCA 338

M v M (1988) 166 CLR 69

Tilley v Children’s Guardian [2017] NSWCA 174

Category:Principal judgment
Parties: GHI (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
Mr P Cranney (Applicant)
Mr C Chiam (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2024/00142301
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

  1. The Applicant in these proceedings is known as ‘GHI’ pursuant to a non-disclosure order made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 anonymising his name.

  2. On 17 April 2024, GHI lodged with the Tribunal an application seeking an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’).

  3. On 15 December 2003, the Orange Local Court convicted GHI of an offence aggravated indecent assault – victim under the age of 16 years (s 61M Crimes Act 1900). GHI is presumed to be a risk to children because of his conviction for this offence. GHI seeks in this application a finding by the Tribunal that he does not pose a risk to the safety of children and should be declared not to be a ‘disqualified’ person pursuant to the provisions of the Act. Having considered all of the evidence and materials submitted by the parties, and after reviewing the provisions of s 30(1) of the Act, we find that GHI is not a real and appreciable risk to the safety and wellbeing of children and young persons. He is not to be declared a disqualified person. The application for an enabling order is granted.

Background

  1. GHI applied for a Working with Children Check (‘WWCC’) on 21 December 2023. He nominated education as the child related employment sector for that application. Subsequently, the Children’s Guardian, who is the Respondent in these proceedings, became aware of GHI’s 15 December 2003 index offence (‘the index offence’).

  2. On 8 January 2024, the Children’s Guardian wrote to GHI refusing his application for a WWCC pursuant to s 18(1) of the Act.

  3. The circumstances concerning the index offence occurred in September 2002, when GHI was 28 years old. GHI pleaded guilty to a charge of aggravated indecent assault of a victim under the age of 16 years. The victim’s witness statement records that at the time of the index offence she was 15 years of age. The victim was walking from her home to a public telephone box in the rain. GHI came towards the victim. On doing so, GHI attempted to engage in a conversation with the victim. The victim looked away not saying anything and GHI rubbed his hand on the inside of the victim’s thigh, but on the outside of her clothing up to her genitals. The victim pushed GHI away and he left. GHI was sentenced to a suspended term of imprisonment upon entering a bond.

GHI’s current circumstances

  1. GHI’s current longstanding partner was the authorised carer for child A. Child A is in out of home care and is the great nephew of GHI’s partner. Ngunya Jarjum Aboriginal Child and Family Network inc. (“Ngunya Jarjum”) is the agency with the delegated parental responsibility for child A. Child A has been removed from the daily care and control of GHI’s partner, partly because GHI does not hold a WWCC. Also, GHI was the subject of an investigation because child A’s 10 year old brother alleged that child A told his brother that “GHI touches me”. The investigation found the allegation not sustained.

  2. On 24 April 2024, the Tribunal extended the time for GHI to lodge his application.

  3. There is no dispute that the Tribunal has jurisdiction to determine GHI’s application.

Legislative background

  1. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances (s 3).

  2. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act (s 4).

  3. 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.

  4. 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. It is not disputed that the role that the applicant proposes to perform is child related work.

  5. Section 18 of the Act constrains the Children’s Guardian from granting clearances to disqualified persons.

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

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

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

  1. It is the Tribunal that must assess risk, if an application for an enabling order is made to the Tribunal.

Jurisdiction

  1. We find that GHI has standing to bring the application.

  2. The jurisdiction of the Tribunal under Part 4 of the Act is protective, not punitive, in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61].

  3. Section 3 of the Act provides that theobject 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.

Section 4 provides that the safety, welfare and well-being of children, in particular protecting them from child abuse, is the paramount consideration in the operation of this Act.

  1. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevantly, the section provides:

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

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

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

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

(b)   the person’s clearance has been cancelled under section 23, because the person is a disqualified person.

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

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

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

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

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

  1. The Children’s Guardian has refused the applicant’s request for a clearance and we find that the conditions of s 28(3)(a) are satisfied.

  2. The Tribunal’s approach to fact finding was set out in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, after discussing M v M (1988) 166 CLR 69, as (at [33]):

“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.”

  1. This approach was confirmed by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

  2. In CXZ v Children's Guardian [2020] NSWCA 338, the assessment of risk was clarified as being a single process (at [7] and [54]) and Simpson JA described that process (at [57]) as:

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

  1. The Tribunal is therefore to evaluate the accumulated weight of the allegations in terms of risk, including considering factors such as the seriousness of the allegations, the strength of the evidence as well as the relevance of the conduct to the risk to the safety of children.

  2. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

  1. In this application there is a presumption that the applicant poses a risk to children, as the applicant is a disqualified person seeking an enabling order pursuant to s 28 of the Act. (s28(7)).

  2. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949, in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998.

  3. At [42], His Honour said:

' 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". ...

The Hearing

  1. GHI relied upon a bundle filed 16 October 2024.

  2. The Children’s Guardian relied upon two bundles filed 28 May 2024 and 19 July 2024, with an additional letter from police of 7 August 2024.

  3. The parties also relied upon written submissions.

GHI’s Submissions

  1. We have considered the written submissions dated 15 September 2024 and oral submissions made by Mr Cranney at the hearing.

  2. GHI contends in relation to the disqualifying offence, that if the Tribunal accepts the victims version, it is conduct which has not been repeated. Dr Dornan’s evidence is to the effect that the offending likely occurred as a result of impulsive behaviours, in the context of alcohol abuse, which led to poor decision making. Dr Dornan’s evidence also included GHI reflecting on his offending in 2002 stating that he was remorseful that he caused the victim any distress, acknowledging that his behaviour had likely caused the victim some psychological or emotional harm. Dr Dornan found GHI to be genuine in this regard.

  3. GHI also relies upon Dr Dornan’s opinion concerning his previous behaviour, particularly relating to historic domestic violence offending during his previous relationship which resulted from GHI and his then partner’s long-term misuse of drugs and alcohol and GHI’s untreated mental health. GHI acknowledge their relationship as being unstable and reflected upon the dysfunction with shame and regret. However, he has been abstinent of alcohol for over 17 years during which time he has been in a long term relationship with his current partner. Despite his poor history of domestic related violence, the Tribunal should take into the more recent history of GHI’s not being involved in similar behaviour.

  4. GHI submitted that in terms of the other matters in the applicant’s history ranging from 2002 – 2018, the Tribunal should take a “global view” where unfortunately it is common to see this type of record of aboriginal people in Australia. This is not uncommon with GHI’s life experience. However, what is uncommon is GHI’s commitment to remove himself from repeat offending through his access to support networks. GHI contends that his history of abstinence from alcohol is a predictor of the future in terms of appreciable risk of harm to children.

  5. In terms of the report of touching child A, GHI submits that the disclosure was not heard from child A. Further, it does not appear the reporter of the allegation was spoken to, or who he allegedly reported the allegation to. During the investigation child A told police it did not happen. In answer to the Children’s Guardian submission the disclosure may be as a result of child A’s disability, that submission should not be accepted. This is because, when reading the police questioning, it is ambiguous and the questions are innocuous. There is no reliable evidence that child A made the complaint. This is despite a detailed and significant investigation taking place. GHI contends that the high point of the investigation “is a nod and shrug during” the interview. The Police and DCJ investigation did not result in any finding of abuse. GHI submits the Tribunal should make a similar finding. GHI contends that apart from the vague reference to child A’s 10 year old half-brother reporting that child A said “GHI touches me”, which child A denied and an allegation not substantiated following a thorough investigation, there has been no disclosure of any harm by GHI against child A, nor any other child.

  6. In reply to the Children’s Guardians submission that GHI has disregarded an undertaking that he was not to stay overnight at his partners home when child A was present, he contends that there were mixed messages given by the Ngunya Jarjum about sleepovers. GHI contends that he was told by Christie/Krystal, a Ngunya Jarjum caseworker they could have family time and sleep overs.

  7. The paramount consideration is protection, not punishment. GHI submits that after significant investigation by relevant authorities concerning any risk he poses to child A, that no risk has been identified. To the contrary, the records disclose that GHI has a strong attachment to child A and that GHI is his most significant male attachment figure.

  8. The expert opinion is conclusive in that GHI does not pose a risk to children. The reasonable person wants indigenous families to flourish. GHI’s partner is happy to be with him. Child A also want wants to be with GHI. The Tribunal should find that GHI is not a disqualified person.

The Children’s Guardian’s Submissions

  1. The Children’s Guardian provided written submissions dated 29 November 2024, and made oral submissions at the hearing. The Children’s Guardian opposes the application and contends that GHI has not displaced the presumption that he poses a risk to the safety of children pursuant to s 28(7) of the Act.

  2. The Children’s Guardian submits that GHI’s index offence was serious and he has a history of violent offending since that index offence. This is particularly exacerbated by the risk that he may abuse alcohol again in the future.

  3. The Children’s Guardian also relies upon an allegation made against GHI that he ‘touched’ child A. While this allegation was not substantiated, the Children’s Guardian submits that it cannot be dismissed as baseless and therefore should be taken into account. Further, the Children’s Guardian contends that GHI has not complied with the Act and has resided with his partner without holding a valid WWCCC, even though a child was in her care. Notwithstanding this, the Children’s Guardian conceded that there was mixed messaging about whether GHI could stay over, however, while this may remove the moral culpability for GHI it does not remove the legal culpability because he breached the undertaking which he agreed that he would not stay overnight. The Children’s Guardian also contends that GHI’s credibility is affected in terms of his statutory declaration referring to him not staying overnight in breach of the agreement, which in his evidence GHI agreed was not factually correct.

  4. Should the Tribunal find that GHI does not pose a risk to the safety of children, the Children’s Guardian contends that GHI stayed overnight with his partner and a child in her care. This was contrary to an undertaking given by GHI to the agency responsible for the care and management of that child, and potentially in contravention of the Act. Given that conduct, the Children’s Guardian contends that a reasonable person would be concerned that GHI does not properly appreciate the importance of the protective scheme imposed by the Act. And in turn, a reasonable person would not allow the child to have direct and unsupervised contact with GHI.

  1. Further, the Children’s Guardian contends that it is not in the public interest to make an enabling order because of the disregard of undertakings provided by GHI.

GHI’s evidence

  1. GHI relied upon a Statutory Declaration made and dated 24 July 2024. He gave oral evidence and was cross-examined.

  2. While there are some inconsistencies in GHI’s evidence over time, we do not find that those inconsistences are material to the issues for us to decide. We deal with those inconsistencies below and overall find GHI to be a reliable witness.

  3. GHI at the time of hearing was 49 years of age. He is an Aboriginal man and the eldest of 3 siblings. He was one of 13 children in a blended family household. GHI gave evidence that he has been in 2 long term relationships. The first with his former partner and mother of his children and his current partner with whom he commenced a relationship in about 2006. GHI and his former partner have 4 children together, all of whom are over the age of 18.

  4. GHI’s evidence included that his main income presently is from Centrelink payments and he makes additional income through selling Aboriginal art at local markets.

  5. GHI said he has a history of consuming alcohol from a young age as a teenager. He was sexually assaulted by one of his brothers who is now deceased. During the relationship with his ex-partner GHI gave evidence that he consumed large amounts of alcohol daily, along with his ex-partner.

The index offence - 2002

  1. In relation to the index offence, GHI gave evidence “I was walking down the footpath, I jumped over a puddle and lost balance, my hand touched a girl in the phone box. I kept walking, thinking nothing of it. I had been drinking and don’t remember the details very well.”

  2. His evidence included that based upon legal advice he was told to plead guilty and in doing so it would be unlikely he would go to gaol. Aboriginal deaths in custody were on GHI’s mind at this time and he said “I felt like I had no choice but to plead guilty. I didn’t even know what the victim said in her statement against me. I didn’t understand the process or the long-term consequences of being convicted.”

  3. The facts to which GHI pleaded guilty included the following:

“The defendant (GHI) has then used his hand to rub the inside of the victim’s left thigh, on the outside of the victim’s tracksuit pants. The defendant (GHI) then ran his hand up to the victim’s genetals [sic]. The victim has then pushed the defendant’s hand away and yelled, ‘Get away from me you creep’. The defendant (GHI) has then smiled at the victim and walked east on (street). The victim yelled, ‘Fuck off’, to which the defendant turned and smiled at the victim again.”

  1. It is recorded that GHI told police when he was arrested “I didn’t mean to grab her, I just wanted a lighter, I’m sorry I grabbed her.”

  2. In the two statements of the arresting police officers dated 29 October 2002 GHI is alleged to have said to the officers “I didn’t mean to grab her, I am sorry I grabbed her.” GHI refused to be interviewed.

  3. In the victim’s statement provided to police dated 3 September 2002 the following is recorded:

“I saw a man walking towards me. He was in only a metre away from me when I first saw him. He walked towards me and at the opening of the telephone box he smiled and said, ‘Hey.’

I looked away from him and said nothing. He kept walking past the phone box, probably only two steps. The next thing I knew he was at the opening of the telephone box. I looked at him and looked away again then I felt his left hand rub on the inside of my left thigh, but on the outside of my tracksuit pants. He started at the top of my knee, ran his hand all the way up to my genitals. I pushed his arm away from me and said ‘Get away from me you creep.’ He smiled at me and kept walking. As he walked away I said, ‘Fuck off.’ He turned around and smiled at me.”

  1. In the report relied upon by GHI from Dr Thomas Dornan, psychologist, dated 14 August 2024, GHI provided the following version of events concerning the index offence:

“He reported that he had been drinking on the day and was likely intoxicated as a result. (GHI) told me that on approaching the phone box where the victim was standing, he stumbled and accidentally made contact with the victim. He recalls that he may have been asking for a lighter, but acknowledged that his level of intoxication had made his memories of the event vague. However, (GHI) was adamant that the act was not sexual in nature, nor did he have any intent to sexually assault her.’

  1. In cross-examination GHI conceded he did not remember the events as it was a long time ago. This is understandable given that more than 22 years have passed since his offending. GHI conceded that he recalls the telephone box on his left side, he thinks. He agreed that he jumped over a puddle but does not remember tripping and touching the victim in the telephone box. He agreed with the cross-examiner that he does not remember the details very well. The victim’s version was put to GHI in cross-examination. He said he could not remember and it is possible that what the victim said happened.

  2. We find that due to the passage of time and GHI’s level of intoxication he has a poor memory of what occurred. We do not accept that he may have jumped over a puddle, or that he tripped. We prefer the evidence given by the victim for the reasons set out below.

  3. We reject GHI’s version of events that he jumped over a puddle and lost his balance for the following reasons. First, in the report to Dr Dornan, GHI says that he had been drinking at the time of the offence and concedes in his Statutory Declaration that he does not remember the details very well. Secondly, the victim’s statement is that GHI’s hand ran from her knee up to her genitals. This version of events is not consistent with a person stumbling and falling into the victim. It is unlikely GHI’s had would run up the victim’s leg if he had tripped or jumped and was falling. Thirdly, the comments made to both of the police officers at the time of his arrest did not refer to him jumping over a puddle and stumbling. Fourthly, no mention is made by the police officers that GHI was asking for, or attempting to obtain, a lighter from the victim. We find, on the balance of probabilities, that GHI was in an alcohol induced state and assaulted the victim as described by her. We accept GHI’s evidence that on the advice of his solicitor and for the reasons he states that he pleaded guilty to the charge of which he was convicted.

  4. Despite the inconsistencies in GHI’s evidence, the following matters are also relevant to our consideration.

  5. Counsel for GHI contends that the following matters require close consideration by the Tribunal. The disqualifying events took place over 20 years ago. GHI’s conduct at the time could be particularised as spontaneous and unplanned, and influenced by alcohol. His offending was towards the lower end of the spectrum, involving a touching of the victim’s leg over her clothes, and occurring in the absence of any preceding predatory behaviour. GHI cooperated with authorities and admitted his conduct to police and pleaded guilty to the offence. GHI has not been convicted of any similar type of offence since.

  6. GHI relies upon the report of Dr Dornan. He contends that he has complex and unresolved effects of grief associated with sexual abuse which led to significant alcohol consumption and numerous criminal convictions for antisocial behaviour. This included a highly dysfunctional relationship with his ex-partner, who herself had a problematic alcohol misuse disorder and was a victim of sexual assault.

  7. However, strikingly and importantly, since beginning the relationship with his current partner, he has ceased consuming alcohol and he has addressed a number of mental health issues through appropriate channels. We have also taken into consideration that a 12 year old child who was placed into the care of GHI and his current partner has played an important role in GHI’s life.

Undertaking about staying overnight with child A - 2022

  1. GHI acknowledges in his statutory declaration that he was able to visit but not allowed to stay overnight at his partners home when child A was in the house. This restriction resulted apparently from a care agreement signed by GHI’s partner. He gave evidence that he signed an undertaking on 3 November 2022 which included an acknowledgement that he could not stay overnight at the house because of him not having a working with children check clearance.

  2. GHI gave evidence that child A was removed from the care of GHI’s partner on the day her mother died in mid-2022. Child A was moved into another placement. However, GHI gave evidence that a Ngunya Jarjum caseworker, Christie/Krystal, verbally agreed that “it was okay for child A to sleep over with GHI and his partner” at this time. This was to allow child A to grieve and to have family time and because child A was not sleeping in his new placement. GHI did not realise that he was in breach of any undertaking given what he was told by the caseworker. The only undertaking we were taken to in the evidence signed by GHI was the 3 November 2022 document. The Children’s Guardian did not call any evidence to challenge GHI’s evidence in this regard. We accept GHI’s evidence.

  3. In cross examination GHI conceded “sometimes I might fall asleep and stayed there” on maybe fifteen to twenty occasions. When he did so he would leave early in the morning. Most of these instances occurred after his partner’s mother had died and child A was living at another home because there was not enough space due to other family member also residing in the home. GHI further said that he stayed overnight after 3 November 2022 to help child A with the grief of losing GHI’s partner’s mother. He said they grieved together as a family. He denied staying overnight after the period of the family grieving. We accept GHI’s evidence.

The alleged ‘touching’ of child A

  1. The cross-examiner suggested to GHI that he touched child A’s penis. GHI denied the allegation. We place less weight on the report of the incident by child A’s brother as the allegation is second hand. We also have considered that child A denied the allegation in conversation with the police. We do not accept that child A’s shrugging his shoulders and saying “I don’t’ know” is an agreement that the event occurred. While we can not rule out the allegation as not occurring, the weight we give the allegation possibly having occurred is low. However, we have considered this is assessing risk.

2004 incident with GHI’s ex-partner

  1. GHI was charged with assault occasioning bodily harm and malicious property damage. He was convicted and sentenced to eight months imprisonment. While GHI did not specifically remember the event, he agreed in cross-examination to the facts as set out in the police facts. He agreed he was probably yelling, swearing and kicking a hole in a door in the presence of his then partner and young children. In answer to the questioning he said “No I don’t remember this. We drank every second day. We were in a bad relationship. It was a toxic environment. I did my best to look after my kids with [ex-partner]. When I left it was the best thing I done. I found [my current partner], my culture. This is in the past. I am looking forward to the future.”

2009 incident with GHI’s current partner

  1. GHI was cross-examined about an incident he reported to Dr Dornan in 2009 between himself and his current partner. He agreed that he had a verbal argument with his partner whilst intoxicated. The event was not violent in nature and was the catalyst for GHI to cease drinking alcohol. Nothing in the cross-examination disturbed GHI’s evidence. We accept his evidence.

  2. There is no record of any police involvement concerning this argument.

2017/2018 charge of possessing prohibited drug

  1. GHI agreed that he was charged with a small amount of cannabis which was for his personal use. GHI gave evidence that he uses cannabis for “stress relief” mainly at night, two to three times per week. He denied using any other drugs. We accept his evidence.

2019 – charge of giving false information to a licensee

  1. GHI gave evidence that he was charged with the offence of furnish false information/statement to licensee and fined $250 and restitution of $100. His evidence in cross-examination included that he picked up his niece with a television. She asked GHI to take it to a pawn shop. GHI signed the relevant documentation to allow his niece to get the money for the television not being aware that the television had been stolen. We accept his evidence.

Section 30(1) Considerations

  1. Section 30 of the Act sets out the mandatory factors that the Tribunal must consider in determining this application.

(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.

  1. We find the index offence objectively serious. The offence is aggravated in circumstances where it involved a child.

  2. While the circumstances leading to the index offence involved GHI being heavily intoxicated at the time, which does not make the offence any less serious, provides a context which supports GHI’s submission that his conduct was spontaneous and unplanned, and influenced by alcohol. We also accept that the offending was towards the lower end of the spectrum, involving touching of the victim’s leg and genital over her clothes, and occurring in the absence of any preceding predatory behaviour.

  3. We have taken into consideration, despite the inconsistencies as set out above concerning the index offence, GHI pleaded guilty and was subsequently sentenced on that guilty plea. The Tribunal is also satisfied that GHI cooperated fully with the police and the courts.

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

  1. The index offence occurred in September 2002.

  2. Since the index offence, GHI has been charged and convicted with a number of offences, including December 2003, common assault (not child related), destroy and damage property, s 9 bond with 12 months good behaviour and drug and alcohol rehabilitation and counselling, common assault (not child related), and contravene Apprehended Domestic Violence Order (ADVO) (not child related), possess prohibited drug, damage or destroy property, assault occasioning actual bodily harm (not child related), all of which he received a sentence of imprisonment of 8 months in October 2004. In October 2007 GHI was charged and fined $400 for failing to comply with reporting obligations. In December 2007 driving with a licence and fined $300, plus court costs. In February 2013 he was charged and convicted with stalk intimidate intend fear physical harm, etc. (not child related) and sentenced to a s 9 good behaviour bond of 18 months. In February 2016 he was charged with goods in personal custody and fined $300. In August 2017 and April 2018 possess prohibited drug and fined $250 and $500 respectively. In August 2018 furnishing false information or a statement to a licensee and fined $500. In August 2018 receive or dispose of stolen property under $5,000, charge withdrawn. In February 2019 furnish false information to licensee fined $250.

  3. In respect of the earlier domestic violence and property related offending we have accepted Dr Dornan and GHI’s evidence that this offending occurred mostly in an alcohol affected state. A significant proportion of the offending occurred many years ago, most recently 8 years ago.

  4. We have considered the Children’s Guardian’s submissions that there are residual concerns about the risk of GHI reoffending in circumstances where he resorts to excessive alcohol use. However, in mitigating these submissions we accept GHI’s evidence that he is in a stable and loving relationship and does not use alcohol in any excessive sense. We note and have taken into consideration that GHI has not come to the attention of the police and been charged or convicted of any offence since 2018, some 8 years prior to this hearing, which weighs in his favour.

  5. We also find that a significant and predominant cause of GHI’s offending up until the ending of his first relationship related to periods when GHI was consuming excessive amounts of alcohol with his then partner. GHI’s life has taken a significant turn for the better since he commenced the relationship with his current partner and his cessation of excessive alcohol use. The risk of relapse is at the lower end of the scale.

  6. In respect of the allegations GHI touched child A, we are not able to make a positive finding that the offending occurred. Equally we cannot positively determine that it did not occur. However, it is unlikely to have occurred. This is because the complaint that was made was second hand. Child A said the reporter, that is his 10 year-old brother, was lying. We place little weight on child A’s response to the investigation officer when he nodded his head and shrugged his shoulder and replied “I don’t know” in answer to a question concerning whether GHI touched his “rude” parts. Further, there is no other reliable corroborating evidence of the allegation apart from the initial report. We have also taken into consideration that there has been a lengthy police and associated agency investigation which led to an unsubstantiated finding. However, given our findings, we must take into consideration possibility of the allegation in terms of assessing risk. We have done so in determining this application. We attach little weight to the allegation for the stated reasons.

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

  1. GHI was 28 at the time of the index offence.

(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.

  1. The victim was 15 years of age at the time of the index offence. Given the age of the victim and that she was female she was vulnerable.

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

  1. The victim was 13 years younger. There is no evidence indicating they had a pre-existing relationship.

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

  1. There was no evidence of the victim’s appearance. The inference the Tribunal draws is that it might have been obvious, or at least suspected, that the victim could have been a child.

(g)   The person’s present age.

  1. GHI is currently 50 years of age.

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

  1. We accept that GHI has a reasonably lengthy criminal history. However, the seriousness of that offending is at the lower end of the scale. As set out above, most of GHI’s offending particularly when he was in his previous relationship occurred many years ago and in circumstances when GHI was significantly affected by alcohol. We accept that GHI has for many years been mostly abstinent of alcohol.

  2. For the reasons stated above, we find that the allegations concerning child A have been given little weight.

  3. We have also considered the Children’s Guardian’s submissions concerning GHI sleeping in the same house as child A. While GHI accepted that he has been told he was not to sleep over at the same house as child A, we find that the mixed messages given by the agency case worker were confusing for GHI, who with all due respect, is not an articulate and highly educated person. It is understandable from his point of view that he believed that he was allowed to have child A in the house with him being present in circumstances where the caseworker had approved for that to occur after the death of GHI’s mother as set out in GHI’s evidence. We find these unique circumstances mitigate against concern in respect of GHI being an appreciable risk of harm to children.

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

  1. We accept the Children’s Guardian’s submissions that if GHI repeated the index offence or family violence related matters this could have a serious impact on the safety of children. However, we find that the likelihood of repetition of that offending is unlikely. In coming to this determination, we have placed significant weight on the findings of Dr Dornan. We also accept GHI as an honest witness concerning his recognition of his prior excessive alcohol use and his reformation since. GHI has connected with family and community. We accept that he has a strong connection to culture and has improved his ways and discovered also family connection with country. His now partner’s late mother had become a strong figure in his life and this has led him to reconnect with country and traditional ways including not using alcohol. Since 2009, we accept GHI’s evidence that he has been alcohol free, except drinking a 6 pack of beer in around 2013 on the death of his father. He gave evidence that he did not like the way he felt and this event confirmed his decision to stay alcohol free.

  2. Dr Dornan found that there were no issues identified in his assessment of GHI that would elevate risk of further sexual offending. He finds that GHI poses an overall ‘low risk’ of sexual recidivism. He concludes “… it is noted that after remaining sexual offence free in the community for over 20 years it is my opinion that there is an absence of any appreciable risk of (GHI’s) committing sexual offences involving children, or engaging in any other form of conduct posing a risk to children.”

  3. He goes on to state “Interpersonally, (GHI’s) alcohol use and untreated mental health was a significant factor in his long term relationship, contributing to domestic violence between him and his partner at the time. He reportedly assaulted his partner on numerous occasions and has been both the person of interest, as well as the person in need of protection in relation to AVOs. (GHI) ultimately was incarcerated for physically assaulting his wife, acknowledging that violence was commonplace in his life at the time. However, he reported that since meeting his long term partner of, 17 years, he has achieved abstinence and that he has not participated in further domestic violence.”

  4. In relation to the index offence his evidence included “… there was no evidence that suggested he was aware of the victim’s age, nor does there appear to be any evidence of entrenched sexual deviancy, sexual deviant interest or hypersexuality, nor did (GHI) endorse attitudes specific to sexual abuse. It is likely that the offence occurred as a result of impulsive behaviours, in the context of alcohol abuse, in which he demonstrated poor decision making and the absence of consequential reasoning.”

  5. While Dr Dornan concedes that there is a risk that should GHI return to using problematic levels of alcohol in the future, then this might elevate his risk rating. However, there is no evidence before us that would suggest this is a real and appreciable risk given his 17 years of being abstinent from alcohol. This weighs in GHI’s favour.

  6. Despite a robust cross-examination, Dr Dornan’s evidence was not diminished. The Children’s Guardian did not adduce any expert evidence to contradict or challenge Dr Dornan and we accept him as a reliable expert witness.

  7. We find that the likelihood of any repetition of GHI in engaging in conduct that led to the index offence and also domestic violence related behaviour is extremely low. This is because most of GHI’s offending was in circumstances where he was consuming excessive amounts of alcohol by himself and with his partner. We were also satisfied in providing his opinion Dr Dornan considered the allegations concerning GHI ‘touching child A’, GHI sleeping in the same house as child A and the allegation of a breach of the 2022 undertaking, all of which Dr Dornan addressed satisfactorily in cross-examination.

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

  1. We have considered GHI’s Statutory Declaration and the report of Dr Dornan, together with a letter he provided to the Children’s Guardian dated 17 May 2024.

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

  1. No such information has been obtained.

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

  1. The Children’s Guardian raises 5 matters.

  2. First, GHI’s lengthy and serious criminal history. We do not accept the Children’s Guardian’s submission that GHI has a serious and sustained history of offending which has not been explained, nor reflects any insight into his offending. GHI explained his offending as set out above.

  3. While alcohol is not a justification for any offending, it does to a degree explain GHI’s conduct concerning the index offence and the domestic violence related matters particularly concerning his ex-wife. We accept GHI has turned his life around since meeting his current partner. He has been abstinent from alcohol which was a predominant feature in his past offending. GHI has not come to the attention of the police since 2018 and not in any domestic violence related matters since 2013.

  4. Secondly, the Children’s Guardian contends that GHI has not complied with the terms of the Act and engaged in unsupervised contact with the child, and in particular staying overnight with him which may amount to a breach of s 10(1) of the Act. The requirements of s 10 relate to an offence and it avails GHI to rely upon a defence should a prosecution be commenced. The section also imposes penalties which includes a fine and, or term of imprisonment. Without sufficient particulars of all the facts and circumstances being set out to enable a fair and just finding to be made concerning any purported breach of s 10, we decline to make any such reference or finding. It would be unjust and procedurally unfair to GHI to do so.

  5. Thirdly, for the reasons as set out above, we are not satisfied that there is a likely risk of GHI relapsing into alcohol use into the future. This is because he has shown considerable restraint since 2009, save for a single occasion when his father died.

  6. Fourthly, in respect of the allegations concerning child A, for the reasons set out above, we attach little weight to the allegations in considering GHI’s appreciable risk of harm to children.

  7. In coming to our determination, we have undertaken an independent assessment of all of the facts and circumstances concerning GHI’s past and predictors for the future. This includes the report of Dr Dornan, but is not exclusively reliant upon that assessment.

  8. We find that GHI has displaced the presumption that he poses a real and appreciable risk to the safety of children.

1A(a)   Whether 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.

  1. In CYY v Children’s Guardian (No 2) (2017) NSWCATAD 262, the reasonable person test was considered. At paragraph 73, the Tribunal observed the following:

’73.   The case of CHB v Children’s Guardian (2016) NSWCATOD 214 held that s 30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the Judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.’

  1. In our view, a reasonable person acquainted with all of the evidence and submissions before the Tribunal would not approach the matter with a closed mind but apply an objective test in consideration of all the material.

  2. A reasonable person would also approach the matter in the same way we have approached the application of the s 30(1) issues concerning risk. A reasonable person would, in our view, find that any risk was insignificant to cause them to have concerns about access to their child in the terms set out in s 30(1A). This is because the significant time in which the offences have occurred and also given GHI’s abstinence from using alcohol since 2009. We also find a reasonable person would not place significant weight on the allegations that GHI inappropriately touched chid A for the same reasons we have set out above. Similarly, given the confusion caused about GHI being allowed to stay overnight with child A in the house, we find that a reasonable person would, in our view, find that any risk was insignificant to cause them to have concerns about access to their child in the terms set out in s 30(1A).

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

  1. We are satisfied that it is in the public interest to make the order. This is because GHI is described as a role model and father figure for child A and generally has been supported as by the agency with parental responsibility for child A on behalf of the Minister. It is in the Public Interest that in respect of Child A, he be able to continue to do so in the home environment with his partner. For the reasons set out above, we do not accept the Children’s Guardian’s submission that it would be against the Public Interest to grant the order because of GHI’s alleged breach of the undertaking and disregard to the objects of the Act. We have found that the direction of the caseworker of Ngunya Jarjum gave consent for GHI to stay overnight following the death of GHI’s mother. This is not a situation of GHI wilfully and unilaterally seeking to undermine the objects of the legislative regime. He believed that he was given permission to stay overnight and was not in breach of the undertaking nor the Act.

  2. By making an enabling order, we are not approving of GHI’s conduct, if it strictly may have led to non-compliance with the operation of s 10 of the Act. The assessment of risk must take into account all of the relevant circumstances, and in our view, the consent and/or direction of the Ngunya Jarjum caseworker Krystal, gave GHI in his mind a ‘green light’ to have child A sleep over in the circumstances in which he described.

Conclusion

  1. On the material before the Tribunal, having considered the matters in s 30(1) of the Act and applied the reasonable person test and the public interest test of s 30(1A) of the Act, we are not satisfied that the Applicant poses a risk to the safety of children. We find that GHI has rebutted the presumption that he is a risk to the safety of children.

  2. We find that he should not be declared as a prohibited person.

  3. We find that an enabling order should be made.

ORDER

  1. For the conviction entered on 15 December 2003, of the offence of Aggravated indecent assault-victim under the age 16 years, s 61M Crimes Act 1900, declare that GHI is not a disqualified person for the purposes of s 18(1) of the Child Protection (Working with Children) Act 2012.

  2. Make an enabling order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012.

  3. GHI is to be granted a clearance under s 28(6) of the Child Protection (Working with Children) Act 2012.

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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: 30 September 2025

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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BKE v Office of the Children's Guardian [2015] NSWSC 523
Commission for Young People v V [2002] NSWSC 949
Commission for Children and Young People v FZ [2011] NSWCA 111