GHM v Children's Guardian

Case •

[2025] NSWCATAD 98

•

05 May 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: GHM v Children’s Guardian [2025] NSWCATAD 98
Hearing dates: 3 and 4 December 2024
Date of orders: 05 May 2025
Decision date: 05 May 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
E Hayes, General Member
Decision:

The applicant’s application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) is dismissed.

Catchwords:

ADMINISTRAIVE LAW – child protection – working with children check clearance – enabling order – whether application has discharged his onus to rebut the presumption that he poses a risk to the safety of children

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

CHB v Children’s Guardian [2016] NSWCATAD 214

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

CSW v Children’s Guardian [2017] NSWCATAD 326

DAI v Children’s Guardian [2017] NSWCATAD 308 VQB v The Secretary to the Department of Justice [203] VCAT 789

Texts Cited:

None

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

Counsel:
L Geddes for the Respondent

Solicitors:
S O’Connel (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2024/00152992
Publication restriction:

Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure, by way of publication, of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings, with the exception of the name of an expert witness or officer of a government agency, is prohibited.

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, GHM, seeks an enabling order, under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), declaring that he is not to be treated as a ‘disqualified person’ for the purposes of that Act in respect of the ‘disqualifying offences’ of which he was convicted in July 2014.

  2. The applicant seeks a declaration so that he can be issued with a volunteer working with children check clearance (WWCC clearance) by the respondent, the Children’s Guardian, under the WWC Act.

  3. Prior to making this application, in February 2024, the applicant had applied to the respondent for a WWCC clearance: WWC Act sections 12(1)(a) and 13.

  4. In March 2024, the respondent, as she was required to do, refused the applicant’s application for a WWCC clearance, because he was a ‘disqualified person’ having been convicted in July 2014 of two offences of ‘having sexual intercourse with a person more than 14 years, less than 16 years’ contrary section 66C(3) of the Crimes Act 1900 (NSW) (Crimes Act): WWC Act section 18(1) Schedule 2 clause 1(1)(h).

  5. Having been refused a WWCC clearance, this gave the applicant a right to make this application within the default application period prescribed in rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). In this case, the applicant lodged his application a few days outside the prescribed period. However, on 9 May 2024, the Tribunal extended the time within which the applicant was to lodge his application. On this day, the Tribunal also made a non-disclosure order, which remains in force, under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), prohibiting the disclosure, by way of publication, of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings, with the exception of the name of an expert witness or officer of a government agency.

The WWC Act

  1. The object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have a WWWC clearance: WWC Act section 3.

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

  3. The word ‘children’ is defined in section 5(1) of the Act to mean ‘persons under the age of 18 years’.

  4. Section 18 in Division 4 of Part 3 of the WWC Act sets out how the respondent is to determine an application for a WWCC clearance. In this regard:

  1. section 18(1)(a) provides that the respondent must not grant a WWCC clearance to a person (disqualified person) convicted before, on or after the commencement on that section of an offence specified in Schedule 2, if the offence was committed as an adult (a ‘disqualifying offence’). As we have already noted, the applicant was convicted, in July 2014, of an offence under clause 1(1)(h) of Schedule 2 of that Act and it was on this basis that the respondent refused his application for a WWCC clearance;

  2. section 18(2) provides that the respondent must grant a clearance to a person who is subject to a risk assessment under Division 3 of Part 3 of that Act unless the respondent is satisfied that the person poses a risk to the safety of children. Section 14 in Division 3 of Part 3 provides that a person is subject to a risk assessment if any of the matters specified in Schedule 1 apply to the person and section 15 in this Division provides that the respondent must conduct a risk assessment to determine whether the person poses a risk to the safety of children;

  3. section 18(3) provides that the respondent must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

  1. As noted above, the applicant seeks an enabling order under section 28(1) of the WWC Act.

  2. In determining this application, the Tribunal is required to consider the following matters as prescribed in section 30(1) of the WWC Act:

30   Determination of applications and other matters

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

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

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

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

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

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

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

(g)  the person’s present age,

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

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

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

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

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

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

  1. And section 30(1A) of the WWC Act goes on to provide that the Tribunal may not make an order under section 27 or 28 which has the effect of enabling an applicant to work with children in accordance with that 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.

  1. The abovementioned matters are those the respondent is to consider in conducting a risk assessment, under section 15 of the WWC Act, of an applicant who is subject to a risk assessment under Division 3.

  2. However, unlike an applicant the subject of a risk assessment under Division 3, in proceedings brought under section 28 of the WWC Act for an enabling order, section 28(7) of the WWC Act provides that ‘it to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children’.

  3. A reference to the phrase ‘risk to the safety of children’ is defined in section 5B to be a reference to ‘a real and appreciable risk to the safety of children’.

  4. Hence, in this application it is for the applicant to rebut the presumption that he poses a risk to the safety of children. If he does not rebut that presumption, it goes without saying that a reasonable person would not allow his or her child to have direct contact with the applicant that is not directly supervised by another person while the applicant was engaged in any child-related work, or that it was in the public interest to make the order sought.

  5. For the reasons below, we are satisfied that the applicant has made many positive changes to his life since his 2012 offending. Notwithstanding these changes, we have found that, as at the date of hearing, a reasonable person would, on balance, not allow his or her child to have direct contact with the applicant that is not directly supervised by another person while the applicant was engaged in any child-related work because of his ongoing reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (Offenders Registration Act) and the circumstances that led to the recent ADVO that the applicant was made subject to for the protection of his eleven year old daughter. Regarding his reporting obligations, the applicant has three convictions of failing to meet these obligations, the latest being in late 2019. The ADVO is also not due to expire until February 2026. Based on this finding we are not satisfied that the applicant has rebutted the presumption that he poses a real and appreciable risk to children.

Material before the Tribunal

  1. In support of his case, the applicant relied on two bundles of documents marked Exhibit A1 and Exhibit A2.

  2. Included in Exhibit A1 was the following material:

  1. an affidavit affirmed by the applicant on 24 July 2024;

  2. an affidavit affirmed by his wife on 24 July 2024;

  3. a report dated 1 July 2024 of Dr Jack White, Psychologist; and

  4. five-character references, dated between 6 and 14 June 2024, and copies of awards and certificates the applicant was awarded or obtained since August 2023.

  1. Included in Exhibit A2 was the following material:

  1. a supplementary affidavit affirmed by the applicant on 20 September 2024;

  2. a supplementary affidavit affirmed by the applicant’s wife on 20 September 2024;

  3. a community recognition statement of the applicant’s local member of State Parliament recognising the applicant’s recent award by the Swimming Pool and Spa Association (SPASA); and

  4. a report dated 21 January 2015 of Dr Katie Seidler, Clinical and Forensic Psychologist. Dr Seidler was a court appointed expert (the then Federal Circuit Court of Australia) for the Family Court proceedings relating to the daughter of the applicant and his former partner.

  1. At the hearing, the applicant, the wife of the applicant and Dr White each gave oral evidence via audio visual link and were cross-examined by counsel for the respondent. Written submissions and closing written submissions were also provided by the solicitor for the applicant.

  2. In support of her case the respondent relied on two bundles of documents marked Exhibit R1 and Exhibit R2.

  3. Exhibit R1 was a large bundle of documents that was tabbed and consecutively page numbered. Included in this bundle were copies of the following material:

  1. documents held by the respondent, which included copies of the documents held by the Local Court located in the town where the applicant had previously resided (pages 1-74 and Tabs 1-7);

  2. court documents (pages 75-85 and Tabs 8-15 );

  3. NSW Police Force response to section 31 Notice under the WWC Act (pages 88-97 and Tabs 16-18); and

  4. Department of Communities and Justice response (pages 98-404 and Tabs 19-50). During the hearing on 3 December 2024, the solicitor for the applicant objected to the admissibility, in these proceedings, of material in this bundle that related to internal assessments made by officers of the Department of Communities and Justice regarding contact between the applicant and his eldest children: see at Tabs 20-27 (pages 107-235) and Tab 47 (pages 387-390). We upheld this objection and gave brief reasons during the hearing.

  1. Exhibit R2 is a small bundle of additional material (20 pages), provided by the NSW Police Force, under summons, of Apprehended Domestic Violence Orders made against the applicant in 2013 and 2024.

  2. The respondent also provided written submissions dated 1 November 2024 and closing submissions dated 4 December 2024.

The disqualifying offences

  1. The disqualifying offences occurred in April 2012. They occurred in the New South Wales (NSW) country town where the applicant was living and working. He was working at McDonalds, as an acting shift manager. The applicant was almost 21 years of age, and the victim was 14 years of age. The victim was also working part time at McDonalds.

  2. On 14 August 2013, the applicant was arrested and conveyed to the Orange Police Station where he was charged with:

  1. five counts (charges) of ‘having sexual intercourse with a person more than 14 years, less than 16 years’, contrary to section 66C(3) of the Crimes Act;

  2. one count (charge) of ‘aggravated sexual assault – victim under the age of 16 years’ contrary to section 61J(1) of the Crimes Act; and

  3. one count (charge) of ‘use carriage service to send indecent material to a person under the age of 16 years’ contrary to section 474.24A(1) of the Criminal Code 1995 (Cth).

  1. The Criminal Code offence was subsequently withdrawn in May 2014. However, he was committed to stand trial, in the District Court, on the remaining charges.

  2. Based on a ‘Statement of Agreed Facts’, on 22 July 20214, the applicant pleaded guilty to two charges of ‘having sexual intercourse with a person more than 14 years, less than 16 years’, contrary to section 66C(3) of the Crimes Act. On pleading guilty to these two charges, the remaining charges were discharged.

  3. The Trial Judge convicted the applicant of each offence for which he had pleaded guilty to. Pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Trial Judge deferred passing sentence on the condition that the applicant entered into a bond to be of good behaviour for three (3) years from the date of his conviction.

  4. The ‘Statement of Agreed Facts’ relevantly said:

The complainant [victim] in this matter … is currently 16 years of age. She was 14 years of age at the time of the alleged offences. The offender was 21 years of age at the time of the offences. The victim met the offender in August 2011 when she commenced working part time at McDonald's.... The offender was the acting shift manager.

In March 2012 the offender began contacting the victim via messaging on Facebook. On Monday 19 March 2012 the victim travelled to ... with her family. There they stayed at the ... caravan park. During this time the offender was communicating with the victim via text messages.

Approximately 3 weeks after she got home the victim met up with the offender. The offender worked a late shift at McDonalds. When he finished his shift he was having a drink outside with a friend. At that time the victim was down the street with some of her own friends. The offender called her on her mobile and told her that he would come and pick her up. The offender went and dropped his friend home while the victim waited outside McDonalds for him. He returned and picked up the victim from a laneway near McDonalds. She states that they had planned to have sex and had discussed it when messaging. The offender had asked her if they were going to have sex and she told him that they would.

Sequence 1 Sexual Intercourse Child Under 16 years

The offender drove the victim back to his house. Once at his house the offender had a shower and changed into a pair of boxer shorts. He set his laptop computer up so that it was playing music and the pair got into bed. They lay there cuddling and talking for a short time. … they had sexual intercourse. When they stopped having sex they continued lying in bed cuddling.

Sequence 2 Sexual Intercourse Child Under 16 years

After a short time the offender said that he wanted to have sex again but in the lounge room. They went into the lounge room and had [sexual intercourse] on the fold out lounge. The offender wore a condom on both occasions. By that time it was approximately 4:00 am. They went back into the bedroom and cuddled. At approximately 5:00 am the victim states she went back to her friend ...’s house. In her statement [the victim’s friend] says that it was approximately 6:30 to 7:00 am when the offender dropped the victim back to her [the victim’s friend’s] house. [The victim’s friend] states that when she returned to the house the victim said ‘We did it’.

On Wednesday 14 August 2013 the offender was arrested and conveyed to orange police station. He declined to participate in an interview. He was charged with the matters now before the court.

Other offences

  1. As noted above, the offences for which the applicant was convicted were registerable offences under the Child Protection (Offenders Registration) Act 2000 (NSW) (Offenders Registration Act) and became a registerable person under that Act.

  2. The objects of that Act are:

2A   Objects of Act

The objects of this Act are—

(a)  to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

(b)  to ensure the early detection of offences by recidivist child sex offenders, and

(c)  to monitor persons who are registrable persons, and

(d)  to ensure that registrable persons comply with this Act.

  1. As part of the monitoring of a person on the Child Protection Register, a registrable person is required to provide an initial report of his or her personal circumstances to the Commissioner of Police. In that report the person is required to provided his or her personal details, where he or she resides, with whom he or she resides, any children who reside with the person, whether the person is a worker and for whom he or she works, the make model and registration of any vehicle owned by the person, the details of the persons telephone number and internet provider and details of any intended or actual departure from NSW: Offenders Registration Act sections 9 and 9A.

  2. There is then an ongoing requirement to report annually to Police and report any changes to Police within seven or 14 days of the change.

  3. In this case, the applicant made his initial report to the Commissioner of Police on 23 July 2014 and his registration under the Offenders Registration Act is not due to expire until 23 July 2029.

  4. The applicant has three convictions for failing to comply with his reporting obligations under the Offenders Registration Act. The applicant was convicted of these offences in the Local Court on 22 June 2015 (failure to report a change in his telephone number and provider details), 20 September 2016 (failure to report a change in his work details) and 13 November 2019 (having failed to make his annual report, as required in the month of August each year).

  1. In 2015, the applicant was also convicted of four driving offences as follows:

  1. 27 May – drive motor vehicle while licence suspended (1st offence);

  2. 25 February - drive motor vehicle while licence suspended (1st offence);

  3. 27 May - drive motor vehicle while licence suspended (1st offence); and

  4. 7 December - drive motor vehicle during disqualification period (1st offence).

ADVOs

  1. Police records show that the applicant was made subject to an interim Apprehend Violence Order (AVO) on 21 September 2012, which expired on 17 December 2012. On expiry of that interim AVO he was made subject to another interim AVO which expired on 17 April 2014. No further information was provided regarding this AVO and we have not considered it any further.

  2. On the day the applicant was arrested regarding the disqualifying offences (14 August 2013) he was also made subject to a provisional Apprehended Domestic Violence Order (ADVO) for the protection of the victim of these offences. On 19 August 2013, the applicant was made subject to an interim ADVO for the protection of the victim.

  3. On 18 October 2013, the applicant was made subject to a six-month final (ADVO) for the protection of his former partner and mother of his daughter who was about 12 months old at this time.

  4. On 25 January 2024, the applicant was made the subject of a provisional ADVO for the protection of his daughter who was 11 years of age at that time. The grounds on which this application was made were as follows:

  1. since her birth the applicant’s daughter has lived with her mother;

  2. in 2023, the applicant’s daughter spoke to the applicant and her mother about wanting to live with the applicant for a period of six months to see what it was like;

  3. the applicant’s daughter was due to begin living with the applicant in mid- January 2024. However, as the time grew closer the applicant’s daughter changed her mind. When the applicant was informed of this change in mind, he became upset and frustrated and sent a series of text messages attempting to have her change her mind and stating that he would pick her up regardless;

  4. late in the afternoon of 1 January 2024, the appellant’s daughter sent the applicant a text message stating: ‘can I text you instead of calling you please I fill (sic) way comfortable with texting please.’ The applicant insisted that they talk via a telephone call. The applicant’s daughter called the applicant shortly thereafter. Following this call the applicant called his daughter sixteen times within 20 minutes. The applicant’s daughter missed two of these calls and declined the others;

  5. on 9 January 2024, the applicant’s daughter telephoned the applicant. They spoke for about ten minutes. Following this call the applicant sent his daughter a text message and they corresponded further. In her message to the applicant the applicant’s daughter said ‘You said you were done with me Than (sic) that’s fine. I don’t want to talk to you right now.’ The applicant then proceeded to call his daughter sixty-one times within 50 minutes;

  6. on 22 January 2024 the applicant attended the local police station with her mother and informed the police that the applicant’s behaviour was making her feel ‘frustrated, sad and mad’;

  7. police alleged that the appellant calling his daughter sixty-one times in less than an hour constituted harassment and without strict court intervention, future offences of harassment may occur.

  1. On 6 February 2024, the applicant was made subject to a final ADVO for the protection of his daughter. That ADVO remains in force until 5 February 2026.

Applicant’s evidence

  1. In his affidavit of 24 July 2024, the applicant said:

  1. he had a romantic interest in and a relationship with the victim and they remained in a relationship after the offending;

  2. the victim had not reported ‘the matter’ to police and he was only charged when their relationship ended and an ‘unknown person’ reported him to police;

  3. he wholeheartedly understands and accepts that his acts amounted to a criminal offence - he was the adult, and she was the child – but he was also young and believes that today he is significantly different to the man he was when he committed the offence. Unlike before, he now has a young family, a wife and consistently tries to set goals for himself and works hard to achieve them. He is employed and has a strong support network;

  4. he did not initially understand what was required of him under the Offenders Registration Act and he admits he made some mistakes. He was never given a warning by police, and each time he made a mistake he was convicted;

  5. regarding the initial charge for failing to meet his reporting obligations under the Offenders Registration Act, he pleaded guilty and was fined $2000 and sentenced to a two-year suspended sentence which expired on 21 June 2017. The lesson he learnt from this incident was to notify Police of any change to his landline or internet within 7 or 14 days of that change;

  6. regarding the second charge for failing to meet his reportion obligations under the Offenders Registration Act, he genuinely believed that he was only required to report any change in waged employment. Again, he pleaded guilty to that charge and was sentenced to a bond. The lesson he learnt from this incident was to notify Police of any type of work, even work that is cash in hand work;

  7. regarding the third charge for failing to meet his reportion obligations under the Offenders Registration Act, the applicant noted he was 10 days late in making his annual report. He explained that being in a rural area it was not so easy to attend a police station to make the required annual report during the requisite month. However, it is now easy as he can do it via email;

  8. since his conviction:

  1. he is a different man;

  2. he is engaged with his community and wants to show his wider community that he is a far better man now and can be trusted;

  3. in compliance with the Offenders Registration Act, he makes sure that his children do not have friends over. As a 33-year-old man and father, he understands the importance of ensuring children are of an age where they understand consent before having sexual intercourse; and

  4. it has been 11 years since the offending, and he understands the harm he caused to the victim and is deeply sorry for being the adult in the relationship and having sexual intercourse with her when she was a child;

  1. regarding his family and circumstances today;

  1. he is married and has known his wife since November 2014. They have two children aged 8 and 6 years. He has a daughter from his first marriage aged 11 and his wife has a son from an earlier relationship who is 11 years of age;

  2. he is employed as a pool technician with an international pool installation/maintenance company. He loves working there and in the short time he has been there he has proven himself to be a valuable employee. He has won several awards, obtained a Certificate relevant to the industry where he works and completed a Forklift competency course;

  3. he is engaged in the activities that interest his sons and the son of his wife which includes football, cooking and boating;

  4. he had a close relationship with his daughter. However, in January 2024 this relationship deteriorated when his daughter told him she did not want to stay with him and his wife. He was upset ‘after all the work I set up with her school and a place for her at my home with (applicant’s wife)’. He is now taking the matter through the Family Court; and

  5. he used to have a close relationship with his mother, who is the carer of two children in out of home care. He has never been alone when in the company of these children.

  1. The applicant went on to explain why he would like a WWCC clearance. In summary this was so that he could coach football and otherwise participate in many more community events.

  2. In his supplementary affidavit of 20 September 2024, the applicant said:

  1. he had consented to the ADVO’s that he was subject to in 2013, but the Police narrative attached to those orders had never been proven against him;

  2. he accepts responsibility for the charges for which he was convicted in 2014 – he was 20 years old, naïve and stupid. He is not the same person today- people change and he has changed, and he has worked hard to rehabilitate himself;

  3. regarding the ADVO for the protection of his daughter:

  1. he loves his daughter;

  2. he did not have custody of his daughter but has always tried to remain in her life;

  3. he tried to call his daughter on 1 January 2024 - the call was declined, and a text message was sent asking to text only. After having told his daughter that he wanted to talk in person, he called her - she was already crying, and he could barely understand her. He eventually asked her what had happened and she said she didn’t know and it wasn’t the right time;

  4. on hindsight, the applicant acknowledged he made a lot of calls in a short period of time – however, at the time he was calling as a worried father who had just got off the phone from a crying daughter;

  5. in his telephone call with his daughter on 9 January 2024, the applicant said he told his daughter he would pick her up for the holiday and they could then discuss why it was not the right time for her to come and live with him;

  6. he had not been aggressive in his calls. That his daughter felt ‘frustrated, sad’ and ‘mad’ were valid emotions as they had a disagreement, and he felt it was not an out of the ordinary emotion that kids have when there is an unresolved tension with a parent;

  7. he was also hurt by his daughter not coming to stay with him and his wife. He re-iterated that he had commenced proceedings in the Family Court regarding the custody of his daughter and t was for this purpose that he attached the 21 January 2015 report of Dr Seidler.

  1. In his oral evidence at the hearing of his application, the applicant presented as being confident, yet open and forthright – even against his own interest at times.

  2. In cross-examination the applicant:

  1. accepted that he did the wrong thing, and, in a way, he knew at the time it was wrong, but they were in a relationship. That is, it was a consensual relationship, and he did not think that the victim could not consent;

  2. when angry or frustrated – his coping mechanism for this is to go for a walk, play touch footy or he goes bush;

  3. he agreed that he was honest with Dr Seidler when she assessed him, in 2015, for the purpose of the Family Court proceedings concerning the custody of his daughter:

  1. while Dr Seidler found, at [98] of her report, that the applicant had not expressed any particular regret for the victim of his 2012 offending and instead felt that he was taken advantage of by her, who he considered to be a friend, the applicant said that his view had changed 100% now, as he has a daughter of his own who he would not like to be put through this;

  2. the applicant accepted that in the past he believed he was being persecuted, and he had a short fuse as indicated by Dr Seidler, at [126] of her report. However, his wife has taught him how to deal with his short fuse; and

  3. in response to the factors Dr Seidler considered to elevate the applicant’s future risk of re-offending [see at [168] of her report], the applicant said he could not see how Dr Sedler came to this view;

  1. the applicant denied that he had a relationship with any other young girls, prior to his 2012 offending;

  2. agreed that his relationship with his daughter had recently deteriorated. While he accepts that he has contributed to this deterioration, he did not agree he had acted aggressively towards her.

Evidence of the applicant’s wife

  1. In her affidavit of 24 July 2024, the applicant’s wife said:

  1. the applicant told her of his offending conduct early on in their relationship, which she confirmed to have commenced 10 years ago;

  2. she and the applicant know the importance of the applicant adhering to his responsibilities under the Offenders Registration Act. She said she believes that these responsibilities have also been used by the mother of the applicant’s daughter as an excuse in preventing the applicant having contact with his daughter. The responsibilities have also impacted on their lives in ways she has described;

  3. she has seen the applicant develop personally and emotionally in the time they have been together. He now has a better understanding of appropriate behaviour and boundaries and takes responsibility for his actions. He has consistently shown remorse for his actions and struggles to think of himself being the person he was in the past;

  4. the applicant is a supportive and loving father, works hard and has developed a secure support system from which can obtain guidance and advice. He acknowledges and respects the right, opinions, and boundaries of others and teats everyone with dignity and fairness.

  1. In her affidavit of 20 September 2024, the applicant’s wife acknowledges that she is aware of the ADVO against the applicant for the protection of his daughter. In her affidavit, the applicant’s wife gives evidence about the events leading to the applicant’s daughter expressing a wish to live with the applicant and the events that occurred in late December 2023 and January 2024. It is unnecessary to repeat these other than to note:

  1. when the applicant telephoned his daughter on 1 January 2024, the applicant was not angry – he was distressed and concerned for his daughter’s safety;

  2. on 9 January 2024, when the applicant’s daughter called the applicant to say she was not moving to live with them, the applicant was really upset – he raised his voice in what she believed to be frustration, desperation and distress, more than anger.

  1. In her oral evidence, the applicant’s wife also presented as being confident, open and truthful. In cross-examination, she said she had read the ‘Statement of Agreed Facts’ concerning the 2012 offending early in their relationship. She said that when they met the applicant was self-oriented but is now family oriented and thinks about his children first. She has been with the applicant when he is angry and there are moments when he forgets to immediately control his temper, but has developed skills to control his temper.

Evidence of Dr White

  1. Dr White assessed the applicant, via video link, on 11 June 2024.

  2. In his report, Dr White noted that the applicant was self-referred for a psychological assessment to determine his suitability to work with children and specifically, as a rugby league referee. In compiling his report, Dr White was provided with a copy of the material contained in Exhibit R1 of the respondent.

  3. In his report Dr White dealt with issues such as the applicant’s family background, education history, vocational history, health history, mental health history, past criminal history, current issues, personality profile, clinical profile, and violence risk assessment. In this regard Dr White noted:

  1. the applicant had indicated that his mental health was good. He said his main stress was concern for his daughter and these proceedings. He said he was not currently depressed, and his mood was stable – in relation to anger he said ‘I explode’;

  2. Dr Seidler had prepared a psychological report in 2015 relating to a parenting issue and had concluded that the applicant posed statistically a ‘low to moderate’ risk of re-offending and in this context noted several protective factors;

  3. the applicant’s personality profile indicated that he was emotionally stable and able to deal with most life stresses and was perceived to have good control over his emotions. He was closed about his feelings but open with his ideas and values. He had limited trust in other people and was stubborn and set in his ways; and

  4. the applicant’s level of acute risk of violence was assessed to be low.

  1. In response to the question whether in his opinion, the applicant is a fit and proper person to work with children in the context of him refereeing rugby union matches, Dr White concluded his report by expressing the following opinion:

… [the applicant] appears to have a very positive record as a referee, and he reported that there had not been any complaints made about him in that context. From a psychological perspective, [the applicant] does not exhibit any significant mental health problems; he has a personality that indicates he is emotionally stable; he has no history of substance abuse; he has no history of gambling abuse; there is no evidence of inappropriate use of pornography; he does not exhibit behavioural evidence of antisocial personality behaviour. He is living in a stable family relationship with a wife and three children. He has a daughter from a previous relationship. [The applicant] was previously assessed in the context of a family court matter regarding access to his daughter, and that assessment indicated that his risk of recidivism was in the “low - moderate range” and supported he have ongoing involvement with his daughter. In my opinion, as a rugby league referee, the [applicant’s] risk of reoffending is likely to be low. I would support his application for clearance in the context of his sporting position.

  1. In his oral evidence Dr White said:

  1. it was he, Dr White, who used the expression ‘explodes’, when asking the applicant to describe his mood when he is angry – it was not an expression that was initiated by the applicant;

  2. until the day of the hearing, he was unaware of the applicant being subject to an ADVO following his many repeated phone calls with his daughter in January 2024. In his opinion the 61 phone calls of the applicant were more about a concerned parent and not a form of harassment;

  3. he adhered to the abovementioned opinion expressed in his report and would change that opinion if the applicant wanted to work in the disability sector.

  4. regarding the report of Dr Seidler, Dr White said that in his opinion:

  1. the applicant is not a paedophile as there is no evidence of predatory behaviour by the applicant;

  2. the applicant had not minimised his offending conduct because he had been in a relationship with the victim;

  3. he does not hold a similar view to that of Dr Seidler concerning the applicant’s ‘mild post-pubertal sexual interest in females’- because, after his 2012 offending, there has been no more reports of any child related incidents, and the applicant has formed adult relationships;

  4. the applicant does have insight into strategies for appropriate parenting around boundaries and sexual issues;

  5. not a lot of weight should be placed on Dr Seidler’s Psychometric Test Findings at [126] of her report, as the applicant’s responses were that of a normal person;

  6. regarding the factors Dr Seidler considered, at [168] of her report, that may elevate the applicant’s future risk of re-offending, he agreed that there was a power imbalance between the applicant and the victim. But did not otherwise agree with the factors identified by Dr Seidler. In this regard he was of the opinion that the applicant now manages stress well; and

  1. finally, he agreed that control can be harmful to children.

Consideration

  1. We reiterate, section 4 of the WWC Act provides that the paramount consideration in the operation of the WWC Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse’.

  2. It is accepted that the legislative scheme in the WWC Act is protective and not punitive: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61].

  3. Finally, section 28(8) of the WWC Act provides that an enabling order may not be made subject to conditions. That is, where an enabling order is made under section 28(1) it is an order that the applicant be granted a WWWC clearance for any child-related employment, whether it be voluntary or paid. The same applies to a decision made by the respondent to grant a WWCC clearance under section 18(3) of the WWC Act and section 27 of the WWC Act, where the Tribunal, on administrative review, makes a decision that the administrative review applicant be granted a WWCC clearance.

Section 30(1) matters

(a) the seriousness of the offences with respect to which the person is a disqualified person …

  1. We agree with the respondent that the disqualifying offences of which the applicant pleaded guilty and was convicted are objectively serious. Their objective seriousness is demonstrated by the applicant being placed on the Child Protection Register until 2029 and being subject to ongoing reporting obligations under the Offenders Registration Act. They were also offences for which the applicant was not entitled to bring an application for an enabling order while he remained subject to the bond imposed by the Trial Judge under section 9 of the Crimes (Sentencing Procedure) Act 1999: see WWC Act section 26(1)(iv) and (2)(b)(i). We understand that this bond expired three years after the applicant was sentenced.

  2. Where the applicant was an adult at the time of offending and the victim a child, six years younger than the applicant, the contention of the applicant that the offences occurred in the context of a ‘relationship’ must be rejected. As noted by Dr Seidler in her report and conceded by Dr White in his evidence, the applicant’s offending did involve coercion.

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

  1. The applicant’s disqualifying offences were committed 12 years ago. Since that time there have been no reported incidents of child abuse by the applicant.

  2. Since 2012, the applicant has been convicted of three offences of failing to meet his obligations under the Offenders Registration Act and some driving offences. In our view little weight should be placed on the driving offences which occurred 10 years ago.

  3. The applicant readily acknowledged his Offenders Registration Act offending, which on some occasions the Police accepted to have been an honest mistake on the applicant’s behalf. Nevertheless, as the objects of that Act include the protection of children from serious harm (including physical and psychological harm caused by physical or sexual assault) the applicant’s offending under this Act is serious but at the lower end of seriousness for such offences: Offenders Registration Act section 2A. Since late 2019, there has been no further report of the applicant having failed to meet his obligations under the Offenders Registration Act. Instead, the evidence is that the applicant and his wife do the utmost to ensure the applicant complies with his obligations under that Act. These obligation do not end until 2029.

  4. Since the 2014 the applicant has been in a stable relationship. He is married and he and his wife have two children of their own and the applicant has been the father to the eldest son of his wife since he was very small. He has a supportive family.

  5. As explained above, the applicant’s relationship with his 11-year-old daughter deteriorated in early 2024 when his daughter decided not to come and live with him and his wife. While we are concerned about the applicant’s reaction to his daughter’s decision not to come and live with him, in our view this is primarily a family matter that is being dealt with in the Federal Circuit Court and Family Court. Nevertheless, the circumstances which led to the applicant being made subject to an ADVO for the protection of a child is a matter relevant to this application, especially as they were recent and the ADVO remained in force as at the time of the hearing.

  6. Since 2014, the applicant has secured full time employment and is valued by his employer and the community around him.

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

  1. At the time of offending the applicant was 20, almost 21, years of age.

(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. At the time of the applicant’s offending the victim was 14 years of age and a child. The applicant has accepted that there was a power imbalance between them as her was in a position of authority as an acting shift manager.

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

  1. There was a six-year difference in age between the applicant and the victim.

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

  1. The applicant maintains that he thought the victim was sixteen years of age when he entered the relationship with her but accepts, he did not discontinue the relationship when he discovered her true age.

  2. We have some difficulty in accepting the assertion of the applicant that at the time of the offending he thought the victim was sixteen years of age – why he thought this was so has never been explained. At the same time, we accept the applicant may never have given any thought as to the age of the victim at that time.

(g)  the person’s present age

  1. At the time of hearing the applicant was 33 years of age.

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

  1. As noted above, other than the 2012 disqualifying offences, the applicant has three convictions under the Offenders Registration Act for failing to meet his reporting obligations and some driving offences. While this is not reflective of a long history of criminal offending, the 2012 offending was serious.

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

  1. At [169] of her report, Dr Seidler, having, in January 2015, assessed the applicant under the ‘Risk for Sexual Violence Protocol’ (RSVP), assess the applicant as posing a ‘Low to Low-Moderate’ risk of reoffending and went on to say the following:

… [The most salient risks] in this case are [the applicant’s] youth, the difficulties he had coping with a relationship breakdown and his mild hebophilic sexual interest. The most likely reoffence scenario for [the applicant] would be similar to his recent offending behaviour and it is suggested that the experience of significant personal stabilisers like the loss of a job, a relationship breakdown or significant family issues would likely increase his risk generally, especially if he is in contact with a young female, who perhaps idolises or pays attention to him and makes him feel good about himself and wanted enough to be reckless and fail to appreciate the consequences of his behaviour.

  1. While Dr White did not assess the applicant under the RSVP, we accept that the applicant has made many positive changes to his life in the 10 years since he was assessed by Dr Seidler. First, he has not re-offended, nor has there been any report of any such offending since 2012.

  2. Instead, the applicant has matured and has been in a long-term and stable relationship with his wife. He has children for whom he cares greatly, he has had stable employment, engaged within his community and has no history substance abuse or serious mental health issues. These are all matters that are recognised as factors being protective of the applicant’s risk of further offending of the kind he did in 2012: see report of Dr Seidler at [167] and the concluding remarks of Dr White in his report.

  3. However, it cannot be said that the applicant poses no risk to future offending. As noted by Dr Seidler, at [168] of her report, there are factors that may be considered to elevate the applicant’s future risk of offending. In our opinion, on the material before the Tribunal, in this case, we agree with Dr White that in the intervening years, there is no evidence that the applicant endorses hebophilic interests, let alone mild ones. However, it is accepted that the following factors can be considered to elevate his future risk of reoffending:

  1. the psychological coercion that was present in his 2012 offending given the age difference between the applicant and the victim and his position of authority over the victim; and

  2. difficulties in managing stress.

  1. Regarding the latter, it is the opinion of Dr White that the applicant now manages his stress well. However, his reaction to his daughter’s change of mind does, in our opinion, give rise to some concerns about the applicant’s ability to manage his stress and his insight into psychological coercion.

  2. The other factor identified by Dr Seidler at [168] of her report is the degree to which the applicant minimised the seriousness of his 2012 offending. While Dr Seidler noted that this minimisation was only to some degree, we accept that the applicant is aware of the impact his offending has had on him, his family. We also accept that the applicant has acknowledged to some extent the impact his offending had on the victim and her family.

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

  1. As we have already noted, the applicant is currently subject to an ADVO for the protection of his daughter and her younger half-sister, both of whom reside with their mother. That ADVO remains in force until February 2026.

  2. In our view, the circumstances giving rise to this ADVO are concerning in that we find it difficult to accept that the applicant’s persistence can be simply explained as that of a concerned father. Nor do we accept that he was not angry. He was clearly disappointed when his daughter had changed her mind, and understandably so, but there also appears to have been a measure of anger and control in his response.

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

  1. In support of his application the applicant has provided five references, who have known him professionally and/or as a friend. Each referee notes that he or she has been made aware of the applicant’s convictions of the disqualifying offences and that it is these offences which have prevented him from obtaining a WWCC clearance. Notwithstanding this offending each referee speaks highly of the applicant and his achievements. It is noted that the applicant is passionate about his ‘footy’ and his refereeing. They state that he is a reliable, honest and a capable young man.

  2. We note that the referees do not make any mention of the applicant being on the Child Protection Register because of his offending and that he is subject to ongoing reporting obligation under the Offenders Registration Act. Nor is there any mention of the AVO that the applicant was made subject to in February 2024.

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

  1. This is not a matter relevant to this application.

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

  1. While the applicant submits that he has discharged his onus, the respondent submitted that the applicant’s application is premature considering that he remains on the Child Protection Register until 2029 and remains subject to an ADVO until February 2026. The former, the respondent notes is a measure taken by Parliament to protect children from harm, and to make an order while the applicant remains on the Child Protection Register would be inconsistent with the objects of that Act.

Has the applicant discharged his onus and has the reasonable person test been met?

  1. It is accepted that the reasonable person test requires that the reasonable person permit direct, unsupervised contact of their chid with the applicant in the course of child related work generally and not only for the work for which the applicant is trained, or the work in which the applicant is engaged: BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

  2. It is also accepted that the reasonable person test assumes that the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware, including all the evidence and submissions placed before the Tribunal: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127] and CSW v Children’s Guardian [2017] NSWCATAD 326 at [136].

  3. And, while the reasonable person would ‘not approach the task with a closed mind, thinking that once the person had offended, he or she can never be redeemed’, the reasonable person would not ‘put aside all scepticism and reasonable caution in some over optimistic attempt to facilitate rehabilitation’: DAI v Children’s Guardian [2017] NSWCATAD 308 at [90] citing VQB v The Secretary to the Department of Justice [203] VCAT 789.

  4. In this case, the starting point is that the applicant is presumed to pose a risk to the safety of children by reason of his 2012 offending.

  5. Based on our findings above, we accept that the applicant has made many changes to his life since 2012 when he committed the disqualifying offences. He is now more mature, and in a long term stable and supportive relationship, he is married and has two children with his wife and is the father to his wife’s first-born son, he has stable employment and is engaged with his community. In our view a reasonable person being acquainted with the material before us would also accept the many changes made by the applicant since his offending.

  6. The reasonable person would also accept Dr Seidler’s assessment of the applicant’s risk of re-offending and acknowledge that this was made almost 10 years ago and a year after the applicant was convicted. A reasonable person would also accept the report of Dr White but would note, without any criticism, limitations of this report in that risk had not been assessed using the well accepted instruments such as the RSVP or considered risk in the context of child-related work generally.

  7. At the same time a reasonable person would weigh these changes in the life of the applicant and the assessments as to risk against the objective seriousness of the applicant’s offending, which resulted in his name being automatically being placed on the Child Protection Register under the Offenders Registration Act. While we do not agree with the respondent that, to grant and enabling order under section 28(1) of the WWC Act is inconsistent with the provisions of the Offenders Registration Act, it is a factor to be taken into account in deciding the seriousness of the offending which gave rise to the applicant being a registrable person under that Act, together with any contraventions that arise from the person’s failure to comply with his or her obligations under that Act.

  8. In this case, the applicant’s reporting obligations are for a statutory period of 15 years: Offenders Registration Act section 14A(1)(b). As we have noted, the applicant has three convictions for failing to meet his reporting obligations, the most recent one being four and a half years ago. While we accept that the applicant is now very conscious of his obligations under that Act, his reporting obligations continue for another four and a half years.

  9. On the material before the Tribunal, it does not appear that the applicant’s referees were made aware that the applicant’s conviction for the disqualifying offence was such that he automatically became a registered person under the Offenders Registration Act and that he continues to have ongoing obligations under that Act. While we are not critical of the applicant for failing to inform his referees of this being so, it is a matter, a reasonable person, being acquainted with all the facts would be aware of. The reasonable person would also be aware of the applicant’s conviction of three offences of failing to meet his obligations, the most recent having occurred late 2019. In our view, being acquainted with these facts a reasonable person would have considerable concerns about allowing, at this time, for his or her child to have direct contact with the applicant that is not directly supervised by another person while the applicant was engaged in any child-related work.

  10. In our view, a reasonable person would also have considerable concerns about the very recent circumstances that gave rise to the applicant being made subject to an ADVO for the protection of his daughter until February 2026. While these circumstances differ substantially to those that occurred in 2012, the applicant’s persistence was such that his daughter wanted it to stop because that persistence made her feel ‘frustrated, sad and mad’. Based on the material before the Tribunal, a reasonable person would also find that the applicant’s persistence included a measure of anger and control.

  11. That is, in our view, notwithstanding the positive changes the applicant has made to his life, a reasonable person would, on balance, not allow his or her child to have direct contact with the applicant that is not directly supervised by another person while the applicant was engaged in any child-related work because of his ongoing reporting obligations under the Offenders Registration Act and the circumstances that led to the recent ADVO which is not due to expire until February 2026.

  12. Based on these findings, we are not satisfied that, as at the date of hearing, the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children.

Is it in the public interest to make the order?

  1. Given our findings above, it is unnecessary to consider this issue. However, we would indicate that for the reasons we have given above we would have found that it was not in the public interest, at this time, to make the order sought.

Conclusion and orders

  1. For the reasons set out above, we are not satisfied that, at this time, the applicant has discharged his onus in rebutting the presumption that he poses a real and appreciable risk to children.

  2. Based on this finding the appropriate order is to dismiss his application, and we make the order accordingly.

Order

The applicant’s application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) is dismissed.

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


Registrar

Decision last updated: 05 May 2025

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Statutory Material Cited

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BKE v Office of the Children's Guardian [2015] NSWSC 523
CHB v Children's Guardian [2016] NSWCATAD 214
Commission for Children and Young People v FZ [2011] NSWCA 111