GJA v Children' Guardian

[2025] NSWCATAD 28

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GJA v Children’ Guardian [2025] NSWCATAD 28

Hearing dates:

28 October 2024

Date of orders:

28 January 2025

Decision date:

28 January 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member
K Stubbs, General Member

Decision:

The Tribunal affirms the decision under review.

Catchwords:

ADMINISTRATIVE LAW –Working with children – apprehended domestic violence orders–firearm and drug offences –children exposed to harm – unsafe child seat restraints – likelihood of repetition – whether applicant poses a real and appreciable risk to the safety of children.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 NSW

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

BKE v Office of The Children's Guardian [2015] NSWSC 523

CXZ v Children’s Guardian [2020] NSWCA 338

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GJA (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00144965

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013-Restriction on publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant, GJA, seeks review of the decision of the Children's Guardian (the respondent) made on 21 March 2024 to refuse to grant him a Working with Children Check clearance (WWCC clearance). The decision was made pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) on the grounds that the respondent was satisfied the applicant poses a risk to the safety of children.

2. As a consequence of the refusal, the applicant is barred from making an application for a WWCC clearance for a period of five years.

3. On 18 April 2024, GJA made an application to the Tribunal for review of this decision pursuant to the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The Tribunal has jurisdiction to consider this application under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).

4. Case management directions were made by the Tribunal and orders were made under s 64(1)(a) of the CAT Act that the publication and broadcast of the name of any person mentioned in the proceedings or referred to in the documentary material lodged in the proceedings is prohibited. This order was made to protect the identity of any alleged victim and children. The parties were directed to file and serve evidence and submissions and the review was listed for hearing on 28 October 2024.

5. Pseudonyms have been used in these reasons for the applicant and, where relevant, the names of other witnesses or parties have not been disclosed in the reasons where it may be possible to identify the applicant, the alleged victims and children.

6. For the reasons that follow, we have decided to affirm the decision under review.

Background

7. The applicant is a 39-year-old man who lives in regional New South Wales. He has three children, 8, 6 and 4 years old with a former partner. The applicant is living with a new partner. She has a child from a previous relationship and the child lives with them. The applicant has been a wrestling coach for about 20 years.

8. The applicant previously held a WWCC clearance which expired on 24 November 2022. Prior to the expiration of this clearance, the applicant was notified that new records relevant to his clearance would require a further assessment to be undertaken to determine whether the applicant would be allowed to maintain his WWCC clearance. This letter was sent to the applicant on 19 September 2022. There is no evidence that the applicant responded to this notice and the period for his clearance expired.

9. On 21 December 2022, the applicant made an application for a WWCC clearance, nominating “clubs and other bodies” as the child related sector. He was notified on 19 January 2023 that his application required further assessment before a decision could be made. The applicant was notified that an interim bar had been placed on his WWCC application. A request was made for further information. The applicant was notified that the reason for the risk assessment and interim bar was that his criminal records revealed a number of charges, some of which had been dismissed, one withdrawn and three of which were pending.

10. The applicant completed and submitted the WWCC clearance form on 30 March 2023. The application was stated to be for the purpose of enabling him to coach children’s wrestling.

11. On 19 February 2024, the respondent wrote to the applicant and advised that it was proposed to refuse his application for the WWCC clearance. The applicant responded to this notice of intention and provided, among other things, a statement in response to the reasons for the proposed refusal.

12. The respondent refused the WWCC clearance by notice of decision dated 21 March 2024. The respondent took into account the seriousness of the matters that caused the assessment, relevantly, certain aspects of the applicant’s criminal offending, the fact that children were present during the offending, the seriousness of the applicant’s criminal history, the orders that were in place relating to the applicant at the time of the decision, the period of time that had elapsed since the conduct occurred, information provided by the applicant, the likelihood of any repetition of the conduct which caused the assessment and the impact on the children.

Relevant Law

13. Section 3 provides that the object of the WWC Act is to protect children by not permitting certain person to engage in child-related work and by requiring persons engaged in child-related work to have WWCC clearances. Section 4 provides that the safety, welfare and well-being of children, and in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.

14. Section 5B of the WWC Act provides that a risk to the safety of children is a reference to a “real and appreciable” risk to the safety of children.

15. The term “child-related work” has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. It includes working in connection with clubs, associations, societies or other bodies, including bodies of a sporting nature, providing programs or services for children. Section 8 provides that a worker must not engage in child-related work unless the worker holds a WWCC clearance of a class applicable to the work. Section 12 provides for two classes of WWCC clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.

16. Section 13 provides that a person may apply to the respondent for a WWCC clearance, and the application must specify the class of clearance applied for. A person who is refused a WWCC clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A.

17. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the WWC Act apply to the person. Schedule 1 sets out “assessment requirement triggers”. These triggers include cases where proceedings have been commenced against a person for certain offences specified in cl (1) of Schedule 2, cases where proceedings have been a commenced against a person for an offence specified in the subcl (2), being offences committed against or in the presence of a child, and cases where a person has been convicted of specified offences against or involving a child. Further grounds specified in Schedule 1 that trigger a risk assessment are cases where there has been a finding of misconduct involving children by a reporting body that the person engaged in a sexual offence committed against, with or in the presence of a child, sexual misconduct committed against, with or in the presence of a child or any serious physical assault of a child (Sch 1, cl (2)).

18. Section 15 provides that the respondent must conduct a risk assessment of an applicant for a WWCC clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of the children if the respondent becomes aware that the applicant, or holder, is subject to an assessment requirement. Section 15(4) sets out the matters that the respondent may consider when making an assessment.

19. The respondent may, by noticing in writing to an applicant, request the applicant, or holder, to provide further information about an offence or other matter related to the application or clearance (s 16). Section 17 provides that the respondent may, at any time after receiving an application for clearance or commencing an assessment, determine that the applicant, or holder, is subject to an interim bar.

20. Section 18 of the WWC Act sets out how the determination of applications for clearances must be made and provides as follows:

18 Determination of applications for clearances

(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.

(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children's Guardian 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.

21. Section 19 provides that if the respondent proposes not to grant a WWCC clearance to a person, the respondent must notify the person in writing of the proposed decision. The respondent must allow the person to provide submissions and must consider those submission before finally deciding the application. The respondent must notify the applicant in writing of its decision to grant or refuse to grant a WWCC clearance and must set out the reasons for the refusal (s 20). The respondent must cancel a WWCC clearance of a person if the respondent becomes aware that the person is a disqualified person or is satisfied that the person poses a risk to the safety of children (s 23).

22. Section 27 of the WWC Act provides that a person who has been refused a WWCC clearance by the respondent or whose clearance is cancelled by the respondent may apply to the Tribunal for administrative review. The Tribunal may make an order under s 28 declaring that a person is not to be treated as a disqualified person for the purposes of the WWC Act. The Tribunal may also make an enabling order under s 28 on application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance.

23. Section 30 sets out the matters the Tribunal must consider in determining an application for review. Those matters replicate the provisions the respondent may consider as set out in s 15(4) of the WWC Act. Notably, these considerations are discretionary for the respondent but mandatory for the Tribunal. Section 30 provides as follows:

(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.

24. If the Tribunal is not satisfied that the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the WWC Act, it is then required to consider the two supplementary tests in s 30(1A) of the WWC Act before it can consider making an enabling order.

25. Section 30(1A) provides as follows:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that--

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

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

26. The applicant is not a disqualified person. Because of the applicant’s criminal history, the respondent undertook a risk assessment. As part of that assessment, the respondent requested information from the applicant and from other authorities. The respondent notified the applicant under s 19 that it was proposed to refuse the WWCC clearance and notified the applicant of the refusal, as required by s 20.

Outline of evidence before the Tribunal

27. The respondent provided five volumes of documents, which included documents lodged under s 58 of the ADR Act and documents summonsed or otherwise obtained by from third parties, including, Helpline risk assessment documents, police records and court and criminal proceedings. The applicant provided two statements, two psychologist reports and several character references. He also provided submissions, certificates of courses undertaken and extracts from an affidavit filed with the Federal Circuit and Family Court of Australia (FCFCA).

Material provided by the respondent

28. Documents were provided from the Department of Communities and Justice (DCJ) for the period 1 February to 29 December 2022. These documents disclose that there were complaints about the care and welfare of the applicant’s three children, and it was reported that the children were living with him without proper amenities (living in a shack) and were not attending school. The first complaint was made in early February 2022. There were Helpline assessments in February 2022 in relation to the reports, which noted that, while there were concerns raised about adequate care, the matter did not meet the threshold for risk of significant harm. The DCJ records reveal that the case was closed on 30 March 2022 on the basis that the risk assessment outcome was assessed as moderate and there was no need to refer the family for further services. There were claims and counter claims as between the applicant and the children’s mother and further complaints were made during March, April and May 2022.

29. There is no evidence that these complaints resulted in action being taken by DCJ against the applicant, other than field visits or telephone contact. There is a copy of a notice of child abuse, that was filed by the applicant on 31 May 2022 in the Federal Circuit and Family Court of Australia. The applicant alleged abuse by the mother of the children’s partner. He also lodged a complaint with DCJ on 17 September 2022.

30. The Tribunal was provided with a risk assessment outcome from DCJ dated 19 September 2023. The final risk assessment level was assessed as “moderate”. One of the main issues that was raised was that the applicant was living a house with the children that had no running water, toilet or electricity. While the report raised concerns about the house, noting that the applicant lives “off the grid”, it was concluded that “information provided by the applicant about his house does not suggest that the house is unsafe for children”. As such, DCJ were not satisfied that the relevant threshold for the definition of risk was met.

31. Included in the respondent’s bundle of documents are copies of the police records for the history of apprehended violence orders (AVO) in the applicant’s name. As at 18 January 2023 the records reveal there were 3 inactive orders, namely an interim order made on 2 April 2022, an interim order made on 9 April 2020 which had expired, and an interim order made on 2 May 2022. It was noted that there was an active interim order made on 16 August 2022, due to expire on 13 February 2023. The active order was a nationally recognised domestic violence order in favour of the applicant's former partner and their three children. According to the updated records as at 22 January 2024, this interim order became a full order on 13 February 2023, with an expiry date of 12 February 2025.

32. The respondent provided further material from the NSW Police, being records from the NSW Police computerised operational policing system (COPS) recording a summary of complaints and outcomes for certain events where the applicant was said to be the “person of interest”. These events are as follows:

1. 87143160 (19 May 2022); an allegation of possible breach of an AVO made by the applicant's former partner (the complainant) against the applicant, which the complainant was advised did not constitute stalking. No further action was taken.

2. 92545486 (29 July 2022); an allegation that the applicant has been stealing mail from the complainant’s mailbox. This complaint was later withdrawn and no further action was taken.

3. 86842872 (22 February 2022); an incident where police observed children in the back seat of a car being driven by the applicant where the children were not properly restrained. This incident was the subject of further enforcement action and reporting, as detailed below, and there were a number of infringement notices issued.

4. 88016054 (9 April 2022); an allegation made by the applicant's former partner, as complainant, that she met the applicant in the front yard as part of a custody exchange of the children, the applicant snatched her phone and then later, when dropping off the children, the applicant drove off aggressively while she was still hugging one of the children and his driving was erratic. It is noted that the police were unable to determine that there was concern for the welfare of the children others without speaking to all of the parties. This complaint was later the subject of criminal charges.

5. 41811269 (7 July 2010); an allegation made by a person who described the complaint is a domestic violence incident where the complainant claimed that she and the applicant had been in a sexual relationship and that he was controlling and had physically assaulted her in the past. The complainant was seeking an AVO although the record of the complaint noted that the complainant had refused to leave the applicant's place of employment after he had asked her to leave. The complainant made a second report to police, stating that she was in fear of the applicant. It was noted that the complainant had been dealt with under the Mental Health Act on two previous occasions. It is also noted that the complainant became upset on several occasions and appeared to be possibly mentally unstable. No further action was taken.

1. 86530750 (22 February 2022); a complaint by the applicant's former partner about the applicant’s care of the children. The police spoke to the applicant after he pulled into a petrol station on the way to his former partner’s house and observed that the children were not properly restrained in the car. They also observed that one of the children did not have a nappy and was soiled. The record reveals that there was an internal referral to DCJ, but no further investigation was undertaken. This record is referred to in more detail later in these reasons.

2. 87730156 (14 April 2022); a further complaint from the applicant's former partner about the children's living conditions. The record notes that the police attended the applicant’s premises on 13 April 2022. The report includes details about other potential offences that were considered by the police at that time, the details of which are set out in more detail below.

33. A summary of the applicant’s criminal records as at 6 May 2024 show the following:

1. On 6 December 2022 the applicant came before the court on charges of stalk, intimidate and intend fear or physical harm and assault occasioning actual bodily harm (domestic violence) and contravening a prohibition or restriction in a domestic violence matter. None of these offences related to the children. The applicant was found not guilty after hearing and the charge in relation to the contravention of the AVO (domestic) was withdrawn.

2. On 13 February 2023 the applicant was convicted of six offences, being common assault (domestic violence, not child related), contravening an apprehended domestic violence order (ADVO), possessing a prohibited drug, supplying cannabis, possessing an unregistered firearm, failing to keep a firearm safely and possessing ammunition without holding a licence, permit or authority. The applicant was sentenced to an aggregate term of imprisonment of 18 months which was to be served by intensive community correction order. In relation the drug possession offence, the applicant was convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with no other penalty. On the charge of possessing ammunition without a licence, the Court imposed a fine of $600 and the weapon/ implement was forfeited to the Crown.

34. The applicant appealed a number of these convictions and sentences. The transcript of the judgement of Judge Coleman SC dated 2 August 2023 was provided by the respondent.

35. Judge Coleman SC found that there was legal error in rejecting the applicant's version of events on the common assault conviction and therefore upheld the appeal. The conviction for common assault was quashed. The appeal against the conviction for contravention of the ADVO was unsuccessful but his Honour found that this was complicated because of the orders of the FCFCA, which provided for communication between the parties in relation to access and parenting matters. His Honour found that there was a deterioration in the conversation between the applicant and his former partner but, on the proper construction of the FCFC orders, the orders allowed a level of communication in relation to the children. Despite this, he was satisfied beyond reasonable doubt that there had been a breach of the ADVO because the communications had gone beyond what was permissible. He dismissed the appeal against the conviction. On the appeal against the severity of the sentence imposed, which was a conditional release with a conviction for 12 months subject to supervision, his Honour found that the offence was at the lower end of objective seriousness. He found that the contravention was a technical breach, but it was not excused and made an unconditional release order for a period of 12 months, with no conviction,

36. In relation to the appeals from the severity of the sentence imposed in respect of the firearms and drug offences, Judge Coleman SC noted that the applicant had pleaded guilty but not at the earliest opportunity. His Honour found that the police attended on the applicant's property, described as a shack, where he lived with his partner and their children and where his children from another relationship were visiting. It was noted that when the police attended the property to serve and arrest the applicant in respect of other matters, there was a strong smell of cannabis, and the police observed the barrel of a rifle sticking out from a bag on the shelf. After conducting further searches, the police found that on a different part of the property there were 30 cannabis plants being grown weighing a total of 4.19 kilograms. The police also found ammunition for the weapon in the glove box of a vehicle on the property.

37. His Honour noted that objectively, firearm offences and possessing ammunition without a licence are serious offences, especially when the firearms were not being securely stored and where children may have access. His Honour noted the multiple references about the applicant’s good character. He also noted the explanation provided by the applicant that he had been poisoned in 2018, had received a pacemaker and, following research about the positive effects of cannabis oil, was using the drugs for this condition. His Honour took the applicant’s evidence on face value although did not regard it an appropriate or mitigating factor and considered that specific and general deterrence and denunciation of the conduct of the applicant were appropriate.

38. As such, Judge Coleman SC imposed an aggregate term of imprisonment for possessing an unregistered firearm with an indicative term of four months. He imposed a fine for the possession of the ammunition and did not disturb the fine imposed by the Local Court. On the failure to keep the firearm safely, his Honour imposed an indicative term of four months and for the supply of a prohibited drug, imposed an indicative term of six months. Accordingly, an aggregate term of imprisonment of 10 months was considered to be appropriate. Having regard to the sentencing assessment report, his Honour found that the sentence should be served by way of an intensive corrections order, which would aid rehabilitation. The court therefore varied the sentence imposed by the Local Court from 18 to 10 months. On the possession charge, his Honour imposed no further penalty. He confirmed the penalty imposed in relation to the possession of ammunition without holding a licence. The court imposed the condition, that the applicant must abstain from taking drugs, other than those prescribed by a medical practitioner. It was noted that the sentence would expire on 1 June 2024.

39. The respondent also provided documents from the Commissioner of Police, NSW Police Force, which included fact sheets, attendance notices and extracts of evidence provided at the criminal trials referred to above. As the criminal trials were finalised through court proceedings and appeals, it is unnecessary to refer to this evidence in any detail. However, included in this evidence was a copy of orders made by FCFCA in relation to the applicant and his former partner dated 8 June 2022. The orders note that the applicant and his former partner have equal shared parental responsibility for the care welfare and development of their three children, the children live with the mother and that they are to spend alternate weekends with the applicant. The orders also note that the former partner is restrained from allowing the children to be left in the care or presence of a named person known to her. There were further orders made about evidence, expert reports and communication between the parties.

Material provided by the applicant

40. The applicant provided statements sworn on 3 May 2024 and 11 June 2024. He was also cross examined on this evidence during the hearing and this is referred to below.

41. The applicant’s statements include a combination of evidence and submissions. He attaches other evidence to his statements, including character references and reports from a psychologist. It is relevant to consider these matters in detail because these statements and submissions disclose the applicant’s view about the various charges, convictions and allegations made against him that have been relied on by the respondent.

42. The applicant states that he has been a wrestling coach in Jui Jitsu for youth and adult competitors for 20 years and decided to return to coaching after time parenting the children as a sole carer. He notes that he was refused a WWCC clearance because of recent charges which a rose at a time his eldest child was staying with his mother. The applicant raises concerns about the presence in the house of the mother's partner, who the applicant states is known to police and DCJ.

43. In summary, the applicant states as follows:

1. He was acquitted of all violent charges and the mother fabricated assault allegations to gain advantage in family court proceedings to have the children returned to her care.

2. He was arrested for possession and supply of drugs and firearms after the children's mother borrowed his cabin for a week. He was living in a neighbour’s three-bedroom home. The applicant alleges that it was the children's mother who was growing the drugs using his cabin for this purpose. When he returned to the property to clean it up, the police came to his property to arrest him for “false” alleged assault claims. He regrets that the children were exposed to the marijuana which he attempted to clean up. While he “had a good idea” what the cabin was being used for he turned a “blind eye” This was against his morals and he was trying to assist the children's mother to move on with her life even, after she had attempted to poison him in 2018. She told him that cannabis oil would help with his heart condition and would give her the financial means to move on with her life.

3. The applicant has never taken recreational drugs in his life and has always taken an anti-drug stance.

4. The applicant agrees that the firearm belonged to him but states that the rifle was left on the property with other belongings from the previous owner in a shipping container. He wanted to hand up the firearms, but the children's mother asked him to leave the firearms on the site in case they were needed. The applicant stated that he compromised by leaving the firearms in the neighbour’s lock box and then forgot about it. He further states that the mother of the children told him that a friend of hers had reported the firearms and because she did not want the neighbour to get in trouble, she took the firearm off the neighbour’s property and put it on his land on a shelf off the ground that was inaccessible to children.

5. He denies that his children have not had adequate shelter and nutrition and states that when the police arrived to arrest him, the cabin on the property was not his home at the time and that they had driven down from a neighbouring property. He accepted that the children were dirty, and it was an outdoor setting. However, he and his partner were living in a neighbouring property in a modern 3-bedroom one bathroom house at that time.

6. The applicant states that he is currently living in a four-bedroom, two-bathroom house in [Regional Location] and hopes to begin coaching youth competitors again. He has the care of his stepdaughter who competes at a high level and would like to coach her. On the issue of the car restraints, the applicant denies the accuracy of the police report and states that all children were restrained correctly with the exception of the one of the children who did not have tight shoulder restraints in place or an anchor point. The applicant explained that the mother of children borrowed his car seats, stating that she would pick the children up. She called him to come to meet her outside town as an emergency. He did not want to do so but she begged for him to do this, and he borrowed his current partner’s seats which did not have a proper anchor. He said that his action in driving the children in the car without proper anchors was out of character. The applicant states that in hindsight he “prioritised” the mother's well-being over the children's normal care.

7. The applicant states that he has been involved in full time study and attached a transcript of an academic record for the period 25 July 2023 to 25 July 2024 which showed that he had completed six subjects in a Certificate IV Nutrition with the Fast Training Academy Pty limited.

8. The applicant denies that he breached an ADVO and states that this was due to clerical oversight by his lawyers in relation to the use of a parenting app from the FCFCA. The applicant states that he has completed a parenting course and provides evidence of a certificate awarded on 6 March 2024 stating that he had successfully completed a “parenting after separation course”.

9. The applicant notes the final AVO is granted automatically when there is a breach of an AVO and the fact that the AVO includes reference to his children is a technicality. He will take steps to remove this when he is able to resume employment with his WWCC clearance.

10. The applicant notes that the intensive corrections order is only in place until June 2024 and this order had nothing to do with concerns about the children's well-being. He also notes that following his conviction for contravention of the ADVO, the applicant was sentenced to non-conditional, not conditional release. The applicant states that the supervision order has been suspended and provided evidence of this from a senior community corrections officer.

11. The applicant states that he takes responsibility for the incidents and that he is extremely regretful of his actions and involvement but states that, without trying to shift any blame, some of the situations came about because his former partner was trying to gain advantage in family court proceedings.

12. The applicants submits that the failure to be able to undertake coaching of children has impacted his ability to earn a living and has prejudiced he stepdaughter and her aspiration's in the sport.

13. The applicant states that there is some confusion about reports of the children's well-being in the mother's household that were attributed to reports relating to his care (referring to the DCJ reports).

14. The applicant submits that not only would he be unable to work in the industry as a coach, but he would be unable to act as a referee without a WWCC clearance.

44. The applicant provided a letter from his neighbour dated 24 March 2024 which stated that, during 2022, the applicant was the caretaker for his property while he was away for work in Victoria. He provided a number of references that were used for the criminal proceedings in either the Local or District Court proceedings. Each of the references is dated in or about December 2022. The referees state that they have known the applicant for some years in various capacities. They state that the charges seem out of character and that the applicant is of good character and a good father. There are also comments on his ability as a trainer and coach.

45. The applicant also provided references to support his applicant for the WWCC clearance. There is a reference from a young man who the applicant had been training since he was a 15-year-old. He had reached national and international levels of competition through this training. He described the applicant as a “pillar in the community”. The applicant provided an undated reference from a person who describes the applicant as a good friend. The person states that he has known the applicant since 2006 and they worked closely together in martial arts. He states that the applicant is a masterful coach. The referee is very critical of the children's mother. According to this witness, he “knows the truth” of the domestic violence claims and states that they are “categorically false” and that the applicant’s conduct with his children is impeccable. Finally, the Tribunal was provided with a letter from a person who has known the applicant in his role as a coach. He states that the applicant has outstanding coaching abilities and that they would be extremely fortunate to have his coaching experience within the team.

46. The Tribunal was provided with a reference from the applicant’s partner, although she did not give evidence at the hearing. She said that she met the applicant in 2021 and they are currently in a relationship. She states that the children have been predominantly raised by the applicant and she believes that the domestic violence allegations made by the mother against the applicant are false. She believes the applicant has a gentle and caring nature and that he is an advocate of nonviolent communication.

47. The applicant provided a psychological report from Joseph Kokotovic, registered psychologist, dated 28 April 2024. The report notes that the applicant attended an appointment on 27 April 2024 for the purposes of a mental health assessment. It is noted that the applicant presented in a positive calm mood and that he was well groomed and appropriately dressed. He spoke in a normal rate and expressed himself clearly. According to Mr Kokotovic, the applicant did not display any behavioural or thought content abnormalities during the session. His cognition was not formally examined. It is noted that the applicant reported he had been in a relationship with his former partner, with whom he had three children. He described the relationship is “challenging, difficult and extremely stressful” because of his former partner’s mental health issues, most likely causing her to engage in erratic and manipulative behaviours. The applicant reported that his former partner neglected her parental duties which including leaving the children for extended periods of time and that she had attempted to poison him, necessitating his hospitalisation. The applicant told Mr Kokotovic that after raising concerns for his children, his former partner made allegations against him in retaliation. The applicant reportedly told Mr Kokotovic that he was placed on an AVO but he had accidentally breached the AVO after using an app without permission. The applicant told Mr Kokotovic that after the “difficult unfortunate circumstances” regarding his relationship with his former partner, he lost his working with children clearance.

48. Mr Kokotovic stated that the applicant does not have any current significant concerns regarding his mental health and recommended that additional information regarding his current psychological state should be considered in the review for obtaining a WWCC clearance. Mr Kokotovic did not give an opinion about the applicant’s risk of re-offending.

49. The applicant provided a further report from Mr Kokotovic dated 28 May 2024. This report noted that the applicant had also attended for assessment on 18 May 2024. The applicant reported that in February 2022, while his children were in his care, his former partner called him and sounded extremely stressed. He came to her assistance as an emergency and used his new partner’s car seats. One of the seat straps did not reach the anchor point but he nonetheless proceeded. The applicant reportedly told Mr Kokotovic that the police were there at the destination, and he feels that his former partner arranged the incident to discredit his character. The applicant also reported that one of the officers was a friend of his former partner. The applicant acknowledged to Mr Kokotovic that he should have securely fitted the child car seats properly before driving and that he would in the future. In relation to the criminal charges, the applicant repeated the matters raised in his statement about the circumstances leading to him having a firearm in the house and in relation to the drugs charges.

50. Mr Kokotovic also reports that the applicant regrets giving his former partner access to his cabin, and he is strongly against the use of illicit drugs. Mr Kokotovic again undertook testing of the applicant to assess his current mental health and found that he was not experiencing any psychological distress and that he does not present with any psychological diagnosis. It was recommended that additional information be provided by the applicant in relation to his criminal charges and the ADVO breach and that his current psychological state should be considered in his review for obtaining a WWCC clearance. Mr Kokotovic did not give an opinion about the applicant’s risk of re-offending.

44. The applicant provided a tenancy agreement dated 27 May 2024 which expires in November 2024, revealing that he and his partner currently rent a four-bedroom house.

Evidence at the hearing

52. The applicant gave evidence that he was originally the primary carer for the two older children and that the mother of the children looked after the youngest child. He said that when the youngest child was born he and the child's mother were not together. He said that from 2015 to 2021 he was the principal carer for the oldest child, and he was also the principal carer for the middle child from 2018 to 2021. After orders were made by the FCFCA in June 2022, he saw the children every second weekend, but he has had no contact with them since September 2022. The applicant said that the house on his property was burned down several years ago and he had rebuilt two small cabins on the lot. From time to time, he was living in the neighbour’s house when the neighbour was not living there. He and his partner now lived in [Regional Location] which they were renting until at least November 2024.

53. The applicant said that he and the children's mother had been separated although they were still having a sexual relationship and this may have occurred 3 or 4 times over the years. He believed that the assault charges were fabricated by the child's mother to compromise the custody of the children. He said that this issue had not yet been resolved through the FCFCA.

54. The applicant was asked about the relationship with another woman referred to in the complaint about domestic violence which was made to police in 2010. He said that he did not recall the allegation that he was controlling and denied that he had a anything other than a very brief relationship with the person who made the complaint. He believes that the police did not proceed with any action against him at that time because the allegations were “outlandish”.

55. The applicant was cross examined about the messages that were the subject of the contravention of the ADVO. He said that the negative messages that he had sent to his former partner had to be read in context. The applicant was also questioned about the circumstances leading to him driving the children without appropriate child restraints. He said that his former partner begged him to meet her and that it was an emergency. He realises that he should have said no and when he saw his former partner with a friend there he was confused and drove to the petrol station, where the police inspected his vehicle. He said that his former partner had the child seats and that there was only one seat that was not properly anchored. This was the child seat for the youngest child. The applicant confirmed that there were four children in the car, two in a booster seat which he said did not require to be anchored. He believed that it was acceptable for his two older children to be in booster seats but accepted that the youngest child, who was two years old at the time of the incident, was only in a standard child seat.

56. The applicant was taken to the police report of the incident that occurred on 22nd February 2022 (86842872) as follows:

Police observed a child in the backseat not correctly restrained. Upon further investigation of the actual seats themselves police found the following.

19 month old seated in the rear behind the driver. The child was in a 5 point harness, however, only had the waist straps of the seat clicked in and the child was laying on the shoulder straps. The seat itself was not anchored to the vehicle which caused the seat to move freely.

Child seated in the middle rear seat of the vehicle approx 5 years old. The child was in a booster seat, however only a waist strap across the waist of the child, the seat was not anchored to the vehicle. In fact upon further inspection, the vehicle did not have any anchor points at all.

Child, three years of age seated in the rear behind the passenger. The seat was the shell of a 5 point harness. The child was asleep, laying on the straps, so it was completely undone. The seat was not anchored to the vehicle. The driver stated it was done up when I stopped and told police the child seated in the middle must have undone the belt.

Police believe the driver had a normal car seat belt around the child and seat, which does not comply. It is impossible for another child to undo the five point harness straps and tuck them behind the child as he slept.

57. The applicant said that he did not agree with this police report and it was wrong. He also said that he believed it was enough for a 5-year-old child to sit in a booster seat and he disagreed with the description of the seat that the two-year-old child was sitting in. He accepted that the youngest child was not properly restrained but did not agree that this was the case with the other children, three of which were his own children, and one was the child of his partner. He said that the choices that he made taking the children out on that day were made under duress and pressure from his former partner. He agreed he did not know the relevant legislation about child restraints. He nonetheless believes that the statement made by the police was false because the police officer was a friend of his former partner.

58. The applicant was taken to another police report and was asked about the fact that the youngest child did not have a nappy on and had urinated on her legs. He said that he was waiting to change the nappy on the park bench. When asked about the statement said to have been made in the police report that he lived in a homemade shack in the bush and living conditions were tough, the applicant said that this was not the case. He disagreed with the record.

59. The applicant said that he accepted the transporting the children without appropriate restraints was inappropriate, but he considered this was an emergency situation for his former partner. He was asked why he just simply did not call the police if there was an emergency in relation to his former partners safety and he said that his former partner did not trust the police. He did his best in a difficult situation. He could not explain why taking the children with him, rather than leaving the children at home with his current partner, would assist in this situation.

60. The applicant was cross examined about the event recorded by police for event number 87730156. Relevantly, the record states as follows:

Early morning on Wednesday 13th April 2022, several police attended the applicants address at [location]. The applicant was present at [the location] with [his son]. The applicant immediately ran towards a shack at the location where [current partner] and the two children were present. It was evident [the applicant] was telling [current partner] to hide all the illicit drugs inside the location. The police quickly made their way to the front door and arrested the applicant for domestic violence offences.

……………….

Police subsequently obtained a crime scene warrant and searched the property the following day. A large amount of illicit drugs was located throughout the shack which appeared to be the only living quarters on the property. It was evident that the children were exposed to this as the drugs were all over the tables, in amongst the clothes and under the bed. A strong odour of cannabis lingered through the tiny shack and a long rifle was located on an open shelf at a height the two older children could reach. No person has a firearm licence and the firearm was not registered.

…………

Living conditions were totally inadequate. The tiny shack had one bunk bed for the entire family, a tiny space for a few clothes. No children's clothes were seen. There was one bench and a tiny camping fridge with all with nil staples and adequate food.

61. The applicant said that the conclusions drawn by the police as set out in the report were not correct, he had been living at a neighbouring house.

62. In relation to the firearm issue, the applicant said that he had been waiting for an amnesty. He only discovered the firearm in 2020 but agreed that he had taken no steps to hand in the rifle after he found the rifle in 2020. His former partner encouraged him to keep it. He repeated the evidence in his statement about the firearms and the drugs. He tried to clean up the cabin when he saw the cannabis because of his concerns. He said that his former partner had tried to poison him, although he did not report this to police at the time. The applicant was asked whether he had undertaking research into the appropriate restraints for children in car seats. He said that he had not done this because he did not need to do so. He said that the car seats now had two anchor points. The applicant said that he wanted the WWCC so that he could generate further income is part of his coaching.

63. The applicant was asked about a police record of event 47127908. This was a report that was made on 13 November 2011. The complaint was made by an adult female and was related to an earlier report by the same complainant (refer event no. 41811269).

64. According to the complaint, she met the applicant in 2009 when he became her martial arts instructor. They began an intimate relationship and in the early stages of the relationship, she was pressured to leave her job, change her diet and to wear certain clothing. She also stated that the applicant would encourage young people to leave school and begin spending all their free time at the gym. She attended a martial arts competition and while she was there, she observed the applicant with a young person. She did not know any other particulars of the young person, but she looked about 15 years old. The complainant said that the applicant and the young female were extremely affectionate. The complainant raised concerns about whether the young female was under the control of the applicant. The report records that investigators attended the gym and spoke with the applicant. He confirmed that he was in a relationship with the young female but did not divulge to what extent. It was noted that investigators had identified the young female and her parents and would attempt to speak to them about the allegation in the near future. The case was suspended on the basis of insufficient evidence.:

65. The applicant was asked about this complaint. He agreed that he did have a relationship with a 17-year-old that he was coaching but it was not a sexual relationship. He was 28 years old at the time.

Findings

66. There is evidence that numerous complaints have been made to police about the applicant, but most have been made in the context of acrimonious disputes between the applicant and his former partner, the mother of his children.

67. There is one complaint made to police by another person over 12 years ago that the applicant is controlling, and she feared for her safety. This complaint was not further investigated by police and the records suggest that the complainant had mental health issues. This does not mean that her complaint has no substance. However, we have insufficient evidence to draw any conclusion about this complaint, although we note that the applicant accepted in his evidence that he had a brief relationship with the complainant. Accordingly, we cannot dismiss the complaint as a complaint without any foundation.

68. While there have been numerous complaints to DCJ about the applicant’s care of his children, principally from his former partner, there is no evidence that action has been taken by authorities about this. We make no findings about these matters. We also note that the evidence about whether the applicant was living at his neighbour’s property is equivocal.

69. There are currently family law proceedings before the FCFCA about the custody and care of the applicant’s children. These issues have not yet been resolved but we do not have sufficient evidence before us to form any view about these matters. There is no dispute that the applicant does not have custody of his children and he has not had access since about September 2022. This was his evidence. He says that this is because of the current ADVO. The Tribunal has no evidence before it to explain why the orders have remained in place in relation to his children and whether the access orders made by the FCFCA in June 2022 also remain in place.

70. There is evidence that when the children were living, or at least staying, with the applicant they were living “off the grid” for periods of time. This does not, on its own, evidence a risk to the safety of children. Despite this, there are several matters, established on the evidence, which are relevant to these issues. These matters are as follows:

1. There are several interim ADV orders that have been made against the applicant, with a final order made on 13 February 2023. We infer that at the time the order was made, there was evidence to support the making of this order by a court in line with the legislative provisions set out in the Crimes (Domestic And Personal Violence) Act 2007 NSW, which require the court to be satisfied, on balance, that a person who has or has had a domestic relationship with another person has reasonable grounds to fear or in fact fears the commission of a domestic violence offence against that person: s 16(1).

2. The applicant contravened the ADVO, which he describes as “technical”. Relevantly, on appeal the District Court did not disturb the conviction, even though it found that the family court orders complicated the matter. The Court nonetheless found that the communications of the applicant were beyond those that were allowed. The contravention was found to be objectively at the lower end of seriousness, but the Court still imposed a 12-month intensive corrections order.

3. The applicant committed firearm and drug offences for which the court imposed, in the aggregate, a 10-month intensive community corrections order. Children were present in the cabin where the drugs and firearm were found. In his evidence to the Tribunal, the applicant attempted to minimise his role and blame his former partner. We do not accept the credibility of this evidence. It is inconsistent with the police records of the events and there is no evidence that this was raised by the applicant in the proceedings before the Local Court or on the appeal to the District Court. Notably, the evidence that was given to in the criminal proceedings is that the applicant sought to use drugs for medicinal personal purposes. As such, the applicant was either not being truthful in his evidence to the Court or he is not being truthful in his evidence before this Tribunal. This raises concerns about the credibility and the reliability of the applicant’s evidence more generally in these proceedings.

4. There is evidence that the applicant transported his children without appropriate child restraints. He disputes the extent of the breach reported by police in the police report, although his evidence about the restraints in place, together with his evidence about his knowledge of the relevant laws, is vague and unconvincing. Accordingly, we prefer the evidence contained in the police report. We also note that the applicant sought to place the blame on his former partner and alleges that she orchestrated these circumstances, leading to the offence, and collaborated with a police officer. This is a serious allegation to make which has not been substantiated. Furthermore, the explanation that the applicant gave that he would rush to the assistance of his former partner, taking all of the children in the car with him when he knew that they were issues with the child seats, is implausible. He did not explain why he could not have left the children at home with his current partner.

5. There is no evidence that the applicant has physically harmed his children, or other children, but there is evidence that the applicant has exposed children to risk in relation to the matters arising from the firearm and drug offences and the evidence about the unsafe transportation of the children on the roads. Nothing happened to the children in either of those matters but the risk of something happening was nonetheless very significant. These matters took place approximately two and a half years prior to the hearing and, while the applicant has had the opportunity to reflect on these matters, particularly in the context of the current application, he did not impress the Tribunal with evidence of remorse or contrition about these issues. In contrast, he attributed blame to others and for the furthermore communicated these issues to the psychologist.

71. The applicant provided character references, directly in support of his application and, previously, in support of his sentencing appeals before the court. Some of these references carry little weight because they are from long term friends who either accept the applicant’s version of the relevant events or do not know the detail of these matters.

Consideration

Submissions

72. The applicant submits that he has not been convicted of any offences of violence and there is no evidence that he has committed harm or that he is a risk of harm to the safety of children. Many of the issues that have been raised relate to disputes with his former partner and fabricated evidence that has been designed to compromise his claim for custody of the children. There are explanations for the offences for which he has been convicted, which he submits are at the lower end of the scale in objective seriousness. He regrets transporting the children without proper restraints, although denies that it relates to all of the children, and submits this was done under duress and pressure from his former partner. The applicant submits that there is good reason for him to have a WWCC clearance so he can recommence his coaching career, and, in particular, focus on coaching young people. He seeks an order that he be granted a WWCC clearance.

73. The respondent submits that the decision under review should be affirmed because there is evidence that the applicant poses a real and appreciable risk to the safety of children. Relevantly, the respondent submits that when each of the matters set out in s 30 of the WWC Act are considered, the evidence, in aggregate, leads to a conclusion that the applicant poses a risk to the safety of children. It is therefore not necessary to consider the two supplementary case s 30(1A) but even if this were the case, it is submitted that the Tribunal would find that a reasonable person would not permit their child to have direct, unsupervised contact with the applicant in the course of any child related work. It is further submitted that it is not in the public interest for the applicant to be granted a clearance.

Approach to findings of fact and assessment of risk

74. The task of the Tribunal is to determine whether the applicant poses a risk to the safety of children which is defined to be a real an appreciable risk.

75. The respondent submits, and we accept, that the correct approach to fact finding in the context of assessing risk is the approach explained by Beech-Jones J (then of the Supreme Court of NSW) in BKE v Office of The Children's Guardian [2015] NSWSC 523 as at [33] follows:

….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.

76. This approach was cited with approval by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174, the Court of Appeal (per Basten JA with Meagher and Leeming JJA agreeing) at [35].

76. In CXZ v Children’s Guardian [2020] NSWCA 338, the Court of Appeal (per Simpson AJA and McCallum JA) also agreed with the approach of Beech-Jones J in BKE, stating at [57] and [58]:

57.   ……The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. 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.

58.   It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

78. Having regard to these authorities, we have made the findings of fact referred to above and have assessed the evidence before us, at the time of the decision, to form a view about whether GJA poses a real and appreciable risk to the safety of children.

79. As required by the WWC Act, we have made our assessment by reference to the mandatory consideration set out in s 30(1), as set out below.

Section 30 matters

Seriousness of any matters that caused a refusal of a clearance or imposition of an interim bar (s 30(1)(a))

80. The matters that resulted in the refusal of the applicant’s clearance and the imposition of an interim bar are the matters outlined above, namely, the criminal offences for which the applicant was convicted and sentenced, the ADVOs and the reports made by police on two separate occasions, where police observed that the applicant was travelling in his car with his children not adequately restrained and where the police observed that children were present in the cabin when firearms and drugs were discovered.

81. These offences were the subject of appeal. With the exception of the charges of stalk, intimidate and intend fear or physical harm and assault occasioning actually bodily harm, which were dismissed on 6 December 2022 after hearing, and the common assault charge, which was overturned on appeal, the applicant was convicted of five criminal offences. While some of the offences were considered objectively to be at the lower end of seriousness, Judge Coleman SC observed that firearm offences and drug offences are serious matters where deterrence and denunciation was an appropriate consideration in sentencing.

82. The applicant was not charged with any offences relating to travelling with the children inadequately restrained but he was issued with two infringement notices.

83. The children were not harmed in relation to these two matters, but they could have been, and we find that both matters posed a serious risk to their safety.

84. The applicant submits that none of the matters for which he was convicted are offences of violence, but this submission fails to acknowledge that is a current ADVO in place which is not only in favour of his former partner but their children. An ADVO, by its nature, includes elements of violence or violent behaviour. We accept that the conduct which gave rise to the contravention of the ADVO was at the lower end of seriousness, but it was still a contravention. An ADVO is protective in nature, and it is for this reason that Judge Coleman SC made his observations about the importance of strict compliance.

85. We therefore find that the seriousness of the conduct which resulted in the refusal are matters that support the contention that the applicant poses a risk to the safety of children. This is particularly so given that these matters involved the applicant’s children and another child who were exposed to the risk of harm. In our view, this risk to safety is not remote or speculative, it is real and appreciable, and it was fortunate that the children did not sustain any injuries as a result.

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

86. Much of this conduct occurred during 2022, just over two and a half years ago but it is still relatively recent. Since the conduct, including the convictions and sentencing, the applicant has attended a parenting course but there is little evidence that he fully appreciates the seriousness of his actions or that he is remorseful about the potential impact on his children. He has not taken any steps to apprise himself the law in relation to the proper travel restraints for his children and he has sought to blame his former partner for the circumstances leading to the incident.

87. We have found that the applicant’s explanation about why he did this to be unconvincing. The applicant’s action was not only unsafe but potentially reckless in that it is apparent he did not turn his mind to issue or consider it important for the children to have proper child seat restraints. In relation to the firearm and drug offences, the description of the circumstances leading to the charges make it clear that children were exposed to the potential risks of the firearms (which were not secured or licenced) and large quantities of drugs. There is no evidence that the applicant seriously considered the potential impact of this exposure on the children at the time. The applicant blamed his former partner, but this was not an issue that was raised before the Court by way of defence or mitigation the only issue raised in mitigate before the District Court was that he was considering using cannabis for medicinal purposes. As already noted, this is inconsistent with the evidence that the applicant now gives in these proceedings.

88. Accordingly, this is a consideration that tends to support the contention that the applicant poses a risk to the safety of children.

The age of GJA at the time the offences or matters occurred and his age now (ss 30(1)(c) & (g))

89. At the time the applicant was charged and committed the offences and was issued with the infringement notices, he was approximately 37 years old. This is not a case where the applicant was young and immature. He should have had sufficient experience to understand the significance of his conduct. This is a matter that supports the contention that the applicant poses a risk to the safety of children. The applicant is now two years older, yet we are not satisfied that there is evidence he understands the importance of the issues that have been raised against him. This is also a matter which is relevant to the consideration in s 30(1)(i) of the WWC Act

The age, age difference and any evidence about the vulnerability of the victim and knowledge the victim was a child (ss 30(1)(d)-(f))

90. We accept that the criminal offences for which the applicant was charged do not involve offences against children. Despite this, it is relevant to note that the children were present and potentially had access to the firearm and the drugs. The children were young, under 10 years old, they were vulnerable and the applicant knew or must have known this. It is also relevant that the children were present during the police raid on the cabin, which must also have had an impact on the children.

91. In relation to the inadequate child restraints, the youngest child was about two years old. There is no dispute that the applicant knew the ages of the children and must have known, or should have known, as the adult and father of the children, their vulnerability. The applicant did not appear to turn his mind to the importance and relevance of this issue. Notably, the applicant gave evidence that he prioritised what he felt was some obligation to his former partner, who he accuses of fabricating evidence against him, ahead of his children and the children of his current partner. This raises concerns about the applicant’s conduct at the time and the potential for repetition, which is addressed below.

The seriousness of GJA's criminal history and the conduct since the matters occurred (s 30(1)(h))

92. The applicant does not have an extensive criminal history, although there is a history of ADVOs, and complaints to the police involving the applicant's former partner and at least one other woman. As already noted, the current ADVO is not only in favour of the former partner but the applicant’s children. We do not know the circumstances of this but infer that the court found that there were reasonable grounds to make the order.

93. Overall, this factor tends to weigh in favour of a finding of risk, although not strongly so.

Likelihood of repetition and impact on children of such repetition (s 30(1)(i))

94. One of the concerns in this case is that the applicant does not appear to take responsibility for his conduct and seeks to shift blame to his former partner. He expresses regret about the incident in relation to the child seats, but he does not accept the police report, and in fact refutes it, but was not able to explain how he had adequately secured the car seats or what the relevant laws were in relation to child restraints. The police report notes that one of the straps was not fastened it was hanging loosely, suggesting that it had not been fastened. The explanation given by the applicant to the police was that one of the children must have loosened it. The police described this as unlikely given the description of where the children were sitting and how the seatbelts were placed. As already noted, we prefer the evidence contained in the police report.

95. This is not a case where the applicant acknowledges the issues and explains why this conduct will not reoccur. To the contrary, he denies much of the seriousness of the conduct alleged and has furthermore obtained a psychologist report which relies on the evidence that he has given about the events. There is no evidence that he is raised the more serious issues with the psychologist or that he sought assistance about how this could be avoided for the future. As already noted, the psychologist provides not opinion about future risk.

Any order that is enforce in relation to GJA (s 30(1)(i1))

96. There is currently an ADVO in place which expires shortly. On the face of this is a significant current order restraining the applicants access to his children which is relevant to this consideration.

Any information given by GJA in relation to the application (s 30(1)(j))

97. The applicant provided an explanation for how the various offences and incidents arose. For the reasons we have outlined earlier, we do not accept his explanations and further note that the fact he seeks to shift the blame suggests the applicant does not take responsibility for his previous convictions and other matters that have potentially exposed his children and another child to the risk of harm.

98. The applicant has provided character references, but they are of limited value for the reasons previously outlined. The applicant has provided two reports from a psychologist. The reports disclose that the applicant has provided the psychologist with a narrative that shifts the blame of the offending. It appears that the applicant's engagement with the psychologist is superficial, and the psychologist does not provide an opinion about whether or not the applicant poses a risk to the safety of children. The psychologist’s report advocates in favour of the applicant, simply recommending that further information be obtained. On balance this information does not assist the applicant.

Information obtained in relation to s 36A (s 30(1)(j1))

99. No information was obtained under s 36A of the WWC Act. As such, this is not relevant.

Any other matters the respondent considers necessary (s 30(1)(k))

100. The respondent submits that, in addition to the applicant’s history of criminal charges and allegations, he has been the subject to various reports to DCJ that suggests he has a history of engaging in behaviour which is otherwise harmful to children. We have carefully considered the reports provided by DCJ as referred to above. While these reports raise concerns, it is relevant to note that there is no evidence DCJ have taken action against the applicant. Accordingly, we do not find that this is a matter that weighs in favour of the contention that the applicant poses a risk to the safety of children.

Conclusion

101. The issue for determination is it whether GJA poses a risk to the safety of children.

102. The risk must be real and appreciable and not remote or speculative. The determination of this matter is a question of fact, and the assessment must be made at the time of our decision. Evidence of the conduct of the applicant in the past may be relevant to the question of whether an applicant does or does not pose a real and appreciable risk to the safety of children. Examining past conduct, in the context of the mandatory considerations set out in s 30(1), provides the Tribunal with guidance in relation to its approach to fact finding on what is a predictive and forward-looking assessment. The WWC Act establishes a scheme which is protective in nature. The protection of children is a paramount consideration.

103. Having regard to the material before the Tribunal considered in its totality, on balance, we are satisfied that GJA poses a risk to the safety of children. Given this finding, it is unnecessary to consider the supplementary tests.

Orders

104. The Tribunal affirms the decision under review.

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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: 28 January 2025