GLB v Children's Guardian

[2025] NSWCATAD 126

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GLB v Children’s Guardian [2025] NSWCATAD 126

Hearing dates:

31 January 2025

Date of orders:

03 June 2025

Decision date:

03 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
J Herberte, General Member

Decision:

The decision of the Children’s Guardian dated 30 October 2023 to cancel the applicant’s working with children check clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27(2) of Child Protection (Working with Children) Act 2012 — Applicant was given a working with children check clearance in 2020 despite conviction for intimidation and assault of an adult in 2019 — Report of charge of domestic violence offences in 2023 caused clearance to be cancelled and an interim bar imposed — Subsequent criminal proceedings in 2024 found applicant not guilty of domestic violence charges — Tribunal to assess whether applicant poses a 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)

Crimes Act 1900 (NSW)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BFX v Children’s Guardian [2014] NSWCATAD 115

BHY v Children’s Guardian [2015] NSWCATAD 91

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

Briginshaw v Briginshaw (1938) 60 CLR 336

CHB v Children’s Guardian [2016] NSWCATAD 214

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

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

Commissioner for Children and Young People v IK [2005] NSWSC 1136

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60

DYH v Public Guardian [2021] NSWCATAD 136

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162

McDonald v Guardianship and Administration Board [1993] VR 521

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Smith v Commissioner of Police [2014] NSWCATAD 184

Tilley v Children’s Guardian [2017] NSWCA 174

VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789

YG & GG v Minister for Community Services [2002] NSWCA 247

ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GLB (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
H Atkinson (Respondent)

Solicitors:
Crown Solicitor (Respondent)
Applicant (Self-Represented)

File Number(s):

2024/00268057

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited. This order was made on 15 August 2024 under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. The applicant sought administrative review under s 27(2) of the Child Protection (Working with Children) Act 2012 (NSW) (‘the Act’) of the decision of the Children’s Guardian made on 30 October 2023 to cancel his working with children check clearance on the grounds that he poses a risk to the safety of children (‘the Cancellation Decision’).

2. The applicant had previously applied for a clearance, having nominated “education” as his child-related employment. He was granted a clearance on 23 March 2020 despite his previous convictions in 2019 after pleading guilty for “common assault” and “stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence)” against an adult.

3. Subsequent to having granted the clearance, the Children’s Guardian was notified on 31 May 2023 of new information about the applicant. Because records relevant to the safety of children had been identified, the Children’s Guardian conducted an assessment under s 15(3) of the Act.

4. An Interim Bar was imposed under s 17 of the Act on 24 July 2023 because the Children’s Guardian determined there was a likely risk to the safety of children if the applicant engaged in child-related work while the assessment took place.

5. At the time of the risk assessment, the applicant had criminal charges pending against him following allegations made by his wife of domestic violence towards her and their two children. On 25 July 2023, the applicant asked the Children’s Guardian to hold off making a final decision until his Court hearing on 11 July 2024.

6. After completing its assessment, the Children’s Guardian advised the applicant on 30 October 2023 that his WWCC clearance had been cancelled under s 23(1) of the Act and that he was barred from working with children for five years.

7. The domestic violence charges included allegations by his wife that he had physically assaulted her, threatened to kill her, and engaged in controlling and threatening behaviour towards her which impacted upon their two children. She alleged that he controlled their finances and also threatened her that if she ate, the children would also not eat. The applicant’s wife also alleged that he had engaged in conduct where he sexually touched their daughter in an inappropriate manner and had physically harmed their son.

8. In what appears to be a somewhat bizarre aspect to this case, the applicant’s wife alleged that the applicant demanded that she return to Bangladesh, leaving the two children in Australia. She further alleged that the applicant and his father had arranged for her brother in Bangladesh to be kidnapped and tortured unless she agreed to return to Bangladesh and leave the children in Australia.

9. After learning of her brother’s alleged kidnapping on 7 April 2023, the applicant’s wife fled the marital home with her two children the next day, and sought refuge. Records of the Department of Communities and Justice (DCJ) contain a report entered on 8 April 2023 of sexual assault and psychological harm to the couple’s daughter, with the father named as the perpetrator. DCJ referred the case to Police for investigation.

10. The applicant’s wife provided a detailed account of the alleged abuse to Police on 27 May 2023.

11. The applicant participated in an interview with Police on 30 May 2023, denying all allegations of threatening to starve the children if his wife ate and denying that he had physically assaulted his wife or threatened to kill her. He denied touching his daughter inappropriately and assaulting her. He asserted that the allegation that he and his father had orchestrated a kidnapping of his wife’s brother was completely untrue and without any evidence.

12. As a result of the allegations, the applicant was charged with “common assault” under s 61 of the Crimes Act 1900 and “stalk/intimidate intend fear physical etc harm (domestic)” under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The applicant was served with a provisional Apprehended Domestic Violence Order (ADVO), with his wife and their two children named as the persons in need of protection. In criminal proceedings in the relevant Local Court in July 2024, the applicant was found not guilty and the charges were dismissed.

13. After being acquitted of the charges, the applicant sought orders that the Tribunal set aside the Cancellation Decision and direct the Children’s Guardian to re-issue him with a clearance.

14. The respondent submitted that the applicant posed a real and appreciable risk to the safety of children, and sought orders to have the Cancellation Decision affirmed.

15. Mindful of the recency and seriousness of the allegations made by the applicant’s wife precipitating her dramatic exit from the marital home and an investigation by Police resulting in the applicant being charged (although found not guilty according to the criminal standard), the paramount consideration under s 4 of the Act to protect children from abuse is upheld in finding on the balance of probabilities the possibility that the allegations in this case are not groundless, and that the correct and preferable decision is therefore to affirm the Cancellation Decision.

16. Our more detailed reasons follow.

Prohibition order

17. Due to the sensitive nature of these proceedings and to protect against the identity of the applicant and any alleged victim being disclosed, an order was made on 15 August 2024 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) that the publication or broadcast of the name of any person mentioned in these proceedings (except for expert witnesses and officers of government agencies) is prohibited. The applicant’s name has been anonymised.

Material and evidence before the Tribunal

18. The following material was filed on behalf of the applicant in support of his application:

1. A statement by the applicant dated 12 September 2024 addressed to the Tribunal (marked for identification as “Exhibit A1”);

2. Another statement by the applicant dated 12 December 2024, largely in the same terms as the previous statement but with reference to a letter of support from a psychologist (marked for identification as “Exhibit A2”);

3. Letter of applicant’s solicitor dated 11 July 2024 confirming the applicant was found not guilty in a criminal matter concerning allegations against him by his estranged wife (marked for identification as “Exhibit A3”);

4. Court Order Notice dated 12 July 2024 confirming the applicant was found not guilty in the criminal matter concerning allegations against him by his estranged wife (marked for identification as “Exhibit A4”);

5. Photographs of a Pandemic Hero Award 2020 presented to the applicant and political/social events in which the applicant participated (marked for identification as “Exhibit A5”);

6. Character reference of LM dated 13 September 2024 (marked for identification as “Exhibit A6”);

7. Character reference of MC dated 10 September 2024 (marked for identification as “Exhibit A7”);

8. Letter from AS, General Psychologist, dated 10 December 2024 (marked for identification as “Exhibit A8”).

19. The following material was filed on behalf of the respondent:

1. a bundle of documents filed on 9 September 2024 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (marked for identification as “Exhibit R1”);

2. further bundle of documents filed on 21 October 2024 (marked for identification as “Exhibit R2”);

3. record of applicant’s sessions with AS, General Psychologist, on 25 November 2024 and 6 December 2024 handed up during the hearing (marked for identification as “Exhibit R3”);

4. Email correspondence between the Crown Solicitor’s Office and AS, the applicant’s General Psychologist on 17, 24 and 28 January 2025 handed up during the hearing (marked for identification as “Exhibit R3”);

5. Written submissions dated 28 January 2025 (not marked).

Oral evidence

20. The applicant gave oral evidence and was cross-examined during the hearing.

The Hearing – Procedural matters

21. Since the applicant was self-represented, the Senior Member explained a number of matters to assist him in understanding the role of the Tribunal and how the hearing would proceed. The matters that were addressed as a preliminary step, before hearing the applicant’s evidence and allowing both parties to make submissions, are set out below.

Hearing the application

22. An application under s 27 of the Act involves a merits review and not a review in which the applicant must show that the Children’s Guardian’s decision was wrong. The Tribunal undertakes a review of all the evidence before it, to decide whether or not the applicant poses a risk to the safety of children. The applicant indicated that he understood the Tribunal’s task.

Standard of proof and burden of proof

23. The Tribunal’s decision is based on the totality of the evidence and according to the civil standard of proof, that is, “on the balance of probabilities”. This is not the same as the standard that is applied in criminal proceedings, where the prosecution must prove a defendant’s guilt “beyond a reasonable doubt”. The applicant said that he understood the difference between the civil and the criminal standard of proof.

No presumption that the applicant poses a risk to the safety of children

24. In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children.

Full disclosure of relevant matters is required

25. The applicant has a statutory obligation under s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application. The applicant indicated that he understood this requirement.

The basis on which the psychologist’s letter was admitted into evidence

26. Before opening oral submissions were made, the Children’s Guardian addressed the Tribunal on the issue of the letter dated 10 December 2024 from AS, General Psychologist, in support of the applicant’s request to have a clearance.

27. The respondent referred to email correspondence between the Crown Solicitor’s Office and AS on 28 January 2025 and the record of the applicant’s sessions with AS on 25 November 2024 and 6 December 2024, confirming that:

1. the applicant did not provide any briefing material relevant to the preparation of the Psychologist’s letter of support (10 December 2024);

2. the letter in support of the applicant’s asserted suitability to hold a clearance was based entirely on information provided by the applicant to the Psychologist.

28. The respondent noted that the Psychologist was not available for cross-examination.

29. The respondent submitted that the Psychologist’s letter was not an expert report and that only limited weight ought to be attributed to it.

30. The applicant made no objection to the Psychologist’s letter not being admitted as an expert report.

31. The Tribunal accepted the respondent’s submission as being an appropriate assessment of the basis on which the Psychologist’s letter would be admitted into evidence. Subject to hearing the applicant’s oral testimony, the Tribunal noted that an appropriate amount of weight may be afforded to the Psychologist’s letter.

Key arguments submitted for the applicant’s case

32. In oral submissions, the applicant denied the allegations against him by his estranged wife, arguing that they were fabricated and unsupported by any evidence, and that this was demonstrated by the Magistrate’s decision in the criminal proceedings against him concerning those allegations, in which he was found to be not guilty.

33. He argued that he is not a risk to the safety of children and that he is a respected member of the community, as evidenced by the character references and Psychologist’s letter provided in support of his application.

34. He contended that he has become a victim because of his estranged wife’s false allegations against him, as a result of which his professional life has been made very difficult because of the respondent’s decision to cancel his clearance.

The respondent’s case

35. The respondent’s case, generally summarised, was that the applicant poses a risk to the safety of children because he has demonstrated a variety of violent and controlling behaviours against not only his wife and children, but also against a former tenant.

36. The respondent acknowledged that it was possible the Tribunal may find the wife’s allegations were unfounded. However, it was contended that on the balance of probabilities, having regard to the totality of the evidence, the allegations were not groundless. The respondent argued that the possibility that the alleged conduct did occur was enough for the Tribunal to favour the respondent’s position and find that the applicant does pose a real and appreciable risk to the safety of children, applying the test in CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ) per Simpson AJ.

37. The respondent also argued that a reasonable person in full knowledge of the applicant’s criminal history (including knowledge of the wife’s allegations and the subsequent charges laid against the applicant which were dismissed in the criminal proceedings) would not allow him to have unsupervised access to their child. Accordingly, the respondent contended that the reasonable person test in s 30(1A)(a) of the Act could not be satisfied.

38. The respondent submitted that the applicant only had a limited need for a clearance since he is usually engaged in teaching adults and not children. The respondent submitted that the public interest test in s 30(1A)(b) of the Act was not satisfied and further submitted that the public interest is served by excluding the applicant from participating in child-related work.

Background leading to the application for review of the Cancellation Decision

39. The applicant is 43 years of age and an Australian citizen, of Bangladeshi descent.

40. He described himself professionally as a teacher. His oral evidence was that he has qualifications in information technology and has entered into a contract with a company to provide teaching services to students domestically and internationally, but requires a clearance in order to undertake that work. According to the applicant’s verifying employer, a Registered Training Organisation (RTO), he was engaged in a subcontract capacity as a Trainer and Assessor and had signed a contract, but had not engaged in any work with that entity.

41. The applicant owns real estate property in Australia as an investment and has managed real estate tenancies on behalf of a landlord (or possibly more than one landlord). In the past he has also worked as a taxi driver and an Uber driver.

42. In August 2018, the applicant married his wife in an arranged marriage. The ceremony took place in Bangladesh.

43. Around 6 weeks after the marriage ceremony, in September 2018, the applicant moved to Australia. He returned to visit his wife in Bangladesh from time to time. During most of 2021, the applicant resided in Bangladesh, returning to Australia in December 2021.

44. He has two children, a daughter who is now aged around five and a half, and a son who is around two and a half years of age.

45. On 21 April 2019, the applicant attended upon a property on behalf of a landlord to meet with a potential tenant of the property. An argument between the potential tenant and the applicant escalated into a situation where the Police were called. The applicant was observed to be holding a hammer and was subsequently charged with common assault and stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence). This incident is considered in more detail under the heading “Consideration” in these Reasons.

46. On 25 June 2019, the applicant pleaded guilty to the charges in the Local Court. He was convicted and sentenced to a 2 year Conditional Release Order under s 9(1)(a) of the Crimes (Sentencing Procedure) Act1999 (NSW) commencing on 16 July 2019.

47. The respondent’s records show that on 29 January 2020 the applicant applied for a working with children clearance. On 19 March 2020, the applicant’s conviction for the 2019 offences was noted by the respondent.

48. On 23 March 2020, the respondent issued a clearance after assessing the applicant as not meeting the criteria for risk assessment because the victim of the 2019 offences was not a child and the applicant had no trigger or disqualifying offences as specified in Sch 1 or 2 of the Act.

49. In February 2023, the applicant moved his family to Australia, having rented a three-bedroom property which he furnished for them to live in. His wife looked after the children and undertook domestic duties including cooking and laundry, while the applicant worked outside the home.

39. On 8 April 2023, the applicant’s wife fled with the two children and lived in a refuge before moving to accommodation described as “long term stay” in or around January 2024.

40. On various dates throughout April, May, June, July and September 2023, the applicant’s wife made statements to DCJ and the Police, alleging that the applicant had always been controlling and had physically assaulted her and the children. These matters are also considered in more detail under the heading “Consideration”.

41. On 27 May 2023, the applicant’s wife provided a typed statement of allegations to Police.

42. On 30 May 2023, the applicant attended the Police station where he was arrested and cautioned. He participated in an electronically recorded interview, denying all allegations, and explained that there had been ongoing marital issues. He was charged with “common assault domestic violence related” under s 61 of the Crimes Act 1900 (NSW) between 22 February 2023 and 8 April 2023. He was also charged with “stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence)” under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) between 22 February 2023 and 8 Aril 2023.

43. At the time of the Tribunal hearing, we understood that the applicant had not been in direct contact with his wife or children since the date that she fled the marriage on 8 April 2023, and he does not know where his wife and children now reside. Any contact is arranged through their respective lawyers.

44. The respondent’s records show that on 31 May 2023, the applicant received a continuous check event (CCE) which disclosed the allegations against him of ongoing domestic violence, assault, sexual abuse, and kidnapping, with an understanding that the victim and her children had been removed to a refuge.

45. On 20 July 2023, as a result of the CCE, the respondent proposed undertaking a risk assessment.

46. On 24 July 2023, the respondent advised the applicant that a risk assessment would be undertaken to decide whether he should continue to hold his clearance. The applicant was subjected to an Interim Bar while the assessment was being done and he was asked to provide information for the respondent to consider before making a final decision.

47. On 25 July 2023, the applicant advised the respondent that his next court date for his criminal proceedings was 11 July 2024. He said that he had been greatly affected by the Interim Bar, asserting that he had lost good contracts for work as a result. He asserted that he was the victim of his wife’s “lies” and asked for the respondent to lift the Interim Bar. The respondent again asked the applicant to put forward his submission for consideration. However, the applicant did not submit any further information for consideration.

48. On 30 October 2023, the respondent wrote to the applicant, advising that his clearance had been cancelled pursuant to s 23(1) of the Act.

49. On 11 July 2024, the Local Court found the applicant not guilty of the offences with which he was charged and dismissed the matter, along with the AVO. The applicant immediately advised the respondent of this outcome and filed his application for administrative review on 19 July 2024.

50. For completeness, we note that applications for administrative review must be made within 28 days of the decision of the Children’s Guardian. Technically, the applicant was required to file his application by 28 November 2023. However, this matter was not raised by the respondent during the hearing before this Tribunal.

Reasons for seeking a clearance

62. We understand that the applicant has qualifications in teaching, in particular, Information Technology. As previously noted, we also understand that he had signed a contract to provide teaching services as a sub-contractor with an RTO. According to notes made by the Children’s Guardian following email correspondence with the RTO, courses usually involve students who are over 18 years of age although younger students (16-17 years of age) are sometimes in attendance, as well as vulnerable people. For that reason, as a matter of policy, the RTO requires its teachers to have a WWCC clearance. Although it was not entirely clear from the applicant’s own testimony, or the Psychologist’s letter, we understand that his contract with the RTO was terminated on 25 July 2023. We understand that without a clearance, the applicant will not be eligible to deliver teaching services for the RTO.

Applicable legislation and legal principles

Protective jurisdiction of the Act

63. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3:

3 Object of Act

The object of this Act is to protect children—

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

Paramount consideration

64. The paramount consideration in the operation of the Act is set out in s 4:

4 Safety, welfare and well-being of children to be paramount consideration

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

The Tribunal’s jurisdiction is protective, and not punitive

65. Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act is protective, and not punitive, in nature: DAI v Children’s Guardian [2017] NSWCATAD 308 (DAI) at [8]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 (AYU) at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26].

66. The protective jurisdiction of the Act was emphasised in CXZ per Simpson AJA at [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.”

Definition of “children”, “child abuse” and the meaning of “risk to the safety of children”

67. “Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.

68. The words “child abuse” appearing in s 4 above are not defined in the Act. The Tribunal stated in BFX v Children’s Guardian [2014] NSWCATAD 115 at [29] that the words would be aptly described as “maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence”.

69. The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]:

“One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely ‘to the safety of children’…”

70. His Honour’s consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children’s Guardian [2018] NSWCATAD 28 at [30]; BKE v Office of Children’s Guardian [2015] NSWSC 523 (BKE) at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ per Basten JA at [26].

Child-related work requires a WWCC clearance

71. Under s 8(1) of the Act, a worker must not engage in child-related work unless the worker holds a clearance. A worker who is subject to an interim bar must not engage in child-related work: s 8(2) of the Act.

72. Work that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work is defined as “child-related work” for the purposes of the Act: s 6(1) of the Act.

73. Under s 6(2)(g) of the Act, child-related work includes a worker who is engaged in education (including private coaching or tuition of children) that involves direct contact with a child or children and that contact is a usual part of and more than incidental to the work.

Test to be satisfied that a person is not a risk to the safety of children

74. Under s 18(2) of the Act, the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless satisfied that the person poses a risk to the safety of children.

Risk assessment under s 15(4) of the Act

75. In making an assessment, the Children’s Guardian may consider the matters set out in s 15(4) of the Act. The Children’s Guardian does not limit its consideration to offences involving children because some offences or behaviours might have an impact on children in the community or home. This is clearly advised to applicants applying for clearance.

76. If the Children’s Guardian is not satisfied of risk based on the s 15(4) matters alone, the ‘reasonable person’ and ‘public interest’ tests set out in s 15(4A) of the Act must be considered:

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

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

77. If the person fails either the ‘reasonable person’ or the ‘public interest’ test, clearance will not be granted.

Issue for the Tribunal’s determination

78. On the fundamental issue, i.e. whether the applicant poses a risk to the safety of children, the Tribunal must determine what the “correct and preferable” decision is: s 63(1) of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), namely whether the applicant poses a risk to the safety of children.

79. For the purpose of determining an application for administrative review, the Tribunal exercises all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (in this case, the Children’s Guardian): s 63(2) of the ADR Act

80. However, in exercising those functions, the Tribunal must not simply “stand in the shoes” of an administrator. The Tribunal does not conduct a review of the Cancellation Decision. The Tribunal reviews the application for clearance ‘de novo’ (meaning ‘afresh’ or ‘again’). As explained in DYH v Public Guardian [2021] NSWCATAD 136 at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator’s decision:

“The effect of these two subsections is sometimes characterised as the Tribunal being required to “stand in the shoes” of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 (‘YG’) at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77.”

81. The Tribunal has regard to the material before it, including material that may not have been before the Children’s Guardian, and the applicable law: YG at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children’s Guardian [2015] NSWCATAD 91 at [14].

What orders the Tribunal can make

82. The Tribunal may make orders that include an order to affirm the Cancellation Decision or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration: s 63(3) of the ADR Act.

Mandatory matters for the Tribunal’s consideration under s 30(1) of the Act

83. In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below:

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.

Further considerations under s 30(1A) of the Act

84. In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act:

(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.

First limb of the two-part test under s 30(1A)(a) - the “reasonable person” test

85. The first limb of the two-part test is known as the “reasonable person” test. It requires the application of an objective standard based upon the views of the “reasonable person”. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY at [26].

86. The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 (VQB) at [36], the Tribunal held that an objective test was called for by the legislation:

“… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.”

87. The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children’s Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said:

“In order to properly consider this test, a ‘reasonable person’ would need to know about the disqualifying offence, the circumstances surrounding the offence, the applicant’s entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.”

Second limb of the two-part test under s 30(1)(b) - the “public interest” test

88. The second limb of the two-part test is referred to as the “public interest” test. The notion of “public interest” was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]:

“The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.”

89. Accordingly, in proceedings under the Child Protection (Working with Children) Act 2012, the “public interest” must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.

90. When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]:

“In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.”

91. The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75].

92. If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children.

The approach to fact finding and the assessment of risk

93. In recognition of the protective jurisdiction of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal is bound to follow the decision in BKE at [33] when assessing risk:

“Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

94. The approach to fact finding as explained in BKE at [33] has been approved by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 (Tilley) at [34]-[45] and in CXZ per Simpson AJA at [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. [emphasis in original] 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.”

95. Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither “well founded” nor “groundless”, the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].

96. A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children’s Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison:

“The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.

The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”.”

97. In determining the application, the Tribunal is required to consider “the totality of the evidence”: BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before it: CYY at [69]-[71].

Civil standard of proof

98. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is, on the balance of probabilities, and not the criminal standard: CFW at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.

Consideration

99. In evaluating the evidence before us, we respect the decision of the Local Court Magistrate who decided the 2023 charges against the applicant according to the criminal standard of proof. However, in proceedings before this Tribunal, the allegations are assessed according to the civil standard, on the balance of probabilities, subject to the Briginshaw principle.

100. In evaluating the evidence before us, it is not necessary to find that the offences or the alleged conduct occurred. It is sufficient to conclude that it is possible that the alleged conduct occurred before then proceeding to consider whether, based on the allegations, the applicant poses a risk to the safety of children.

101. There were difficulties in assessing the evidence in this case. We acknowledge the paucity of the evidence concerning the kidnapping allegation that appeared to contribute towards the applicant’s wife’s decision to leave the marital home. However, balanced against that, the evidence demonstrates that the Police took the allegations seriously enough to liaise with the Department of Foreign Affairs and Trade (DFAT) and INTERPOL. We also acknowledge that the evidence given by the applicant’s wife concerning her allegations against the applicant of physical harm, controlling behaviour and intimidation was directly contradicted by him. There was no independent corroborative witness evidence to support either of the protagonists’ assertions about those allegations. However, a report was made to DCJ contemporaneously with the applicant’s wife’s disappearance, with a lengthy interview involving the applicant’s wife and daughter on 16 June 2023. During that interview, the applicant’s wife described the applicant’s conduct in considerable detail. In a further interview on 25 July 2023, she gave a consistent and detailed account of the applicant’s alleged conduct. We acknowledge the difficulties associated with not being able to test the applicant’s wife’s allegations in these proceedings. We also acknowledge the potential loss of accuracy in some of the evidence due to language and cultural barriers, despite interpreters being engaged.

Mandatory considerations in s 30(1)(a)-(k) of the Act

102. In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act.

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: s 30(1)(a) of the Act

103. In considering the seriousness of the offences that caused the cancellation of the applicant’s clearance, we looked at the allegations made by his wife in 2023, as well as the applicant’s convictions in 2019. In relation to each incident, we note that the applicant was charged with the same offences, namely, “Common Assault” under s 61 of the Crimes Act 1900 (NSW) and “Stalk/intimidate intend fear physical etc harm (personal)” under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The circumstances of each incident were entirely separate, and have no factual connection. The common thread between the incidents is, however, that both sets of allegations accused the applicant of engaging in threatening behaviour, inciting fear in the victims for their own safety (and, with respect to the 2023 allegations, fear for the safety of the children and other family members).

Alleged 2023 Offending Conduct

104. The allegations made against the applicant by his wife included that he engaged in patterns of abusive power and control against her, that he deprived her of essential needs (food, money and clothing), hid her passport, forced her to not eat for days under threats of depriving the children of food if she did eat, physically and sexually assaulted her, and that he had arranged for her brother to be kidnapped and tortured if she refused to relinquish the children to him and refused to return to Bangladesh. She also alleged that the applicant had physically harmed her son by purposely dropping him on his head and pushed him off a kitchen bench towards her. Further, she alleged that the applicant had inappropriately touched their daughter on her breasts and vagina.

105. In an interview with the applicant’s daughter on 8 April 2023 (the day that the applicant’s wife sought refuge) the daughter made no disclosures. However, she did not appear to have the ability to differentiate between truth and lies. In a further attempt to build rapport with the daughter on 16 June 2023, DCJ caseworkers considered she was not engaged, possibly due to her lack of language, and so the interview did not proceed.

106. During the interview with DCJ caseworkers on 16 June 2023, the applicant’s wife asserted that the applicant had no interest in her son, believing the boy was not his child, and said that the applicant was only interested in their daughter. She gave a clear description of the applicant’s behaviour with their daughter:

“…one time she was nude laying on the bed and my ex-partner was standing on the side of the bed – he was smiling and telling her to lay down – I have some work with you – fortunately I saw this and took my daughter – I know he is a very bad person and he can do anything to my children – I was so afraid – I told everything to the police – they asked me the whole thing when I came from Feb – April 2023 – I gave the police a lot of information – about how the father touches her whole body and rubbing her vagina.”

107. When asked whether the applicant had placed his penis on the daughter’s vagina or head, his wife corrected the information previously reported by a neighbour to DCJ, stating:

“no he never did – the police asked if he pushed his penis to her and I say no but after half an hour the police said I said yes - but this never happened – both times I said no – this never happens.”

108. Upon further questioning about the applicant’s behaviour with his daughter, his wife said:

“my daughter sitting with both legs bent in front of her – watching tv – that man would grab her body – always he would keep his hand on her vagina and would always keep his hand over her vagina and on her inner thigh – he did it lots of times but he never pushed his penis to my daughter. I am telling the truth with what ever happened with my child – it’s my intention to only tell you the truth.”

109. The investigation of the alleged sexual assaults upon the daughter was suspended following her mother’s decision that the child not be interviewed further. DCJ’s reports noted that since both children were considered to be in the safe care of their mother, protective action by DCJ could be ceased.

110. In a further interview with DCJ caseworkers on 25 July 2023, the applicant’s wife again described the applicant touching her daughter on top of her clothes on her upper chest and vagina. She said that, at the time, the applicant was only half-clothed, wearing a sarong, and her daughter was lying on the bed. She said that this conduct had never happened in Bangladesh, as there were a lot of people around, and that it only occurred in Australia. She said that it happened 3-4 times.

111. The applicant’s wife also alleged that the applicant wore a traditional dress called a “ludi”, in such a way that his penis was exposed in front of the children. She explained that the “ludi” is worn by men at home and when sleeping. She asserted that the applicant exposed his penis to her mother and the children frequently, despite asking him to stop.

112. The allegations that the applicant sexually assaulted his wife on five or six occasions were contained in Police records. The first alleged occasion in March 2023 was described in the following terms (noting that the applicant is described in the Police records as the “POI”):

“POI requested the complainant to come into his bedroom. POI told complainant to lay down and “open your clothes” before he pushed his penis inside her vagina. POI placed his chest over complainant’s mouth/nose restricting her breathing ability. – Whilst doing so, POI held complainant’s wrist over the top of her head forcibly. Complainant attempted to make excuses to leave (i.e. the baby is crying) however POI responded “let’s just finish, after that you will do”.

113. Whilst no specific dates were provided, the applicant’s wife alleged that the incidents as described took place on 5 other occasions, four times in March and once in April. She advised the Police that she did not see a doctor or go to a hospital in relation to any of the incidents alleged. We note that a Senior Constable who investigated the sexual assault allegation determined in July 2023 that no sexual assault had occurred. There is no reasoning provided to the Tribunal for this apparent Police determination and no weight is placed upon it. Otherwise, the Police continued to investigate the allegations of domestic violence.

114. The applicant’s wife alleged that the applicant had physically assaulted her by twisting her arm and strangling her, and that he threatened to kill her. In her written statement to Police on 27 May 2023, she alleged the following:

“[The applicant] stopped me from eating food for one week sometime in March 2023. [The applicant] said to me, “If you eat your children will starve, if you don’t eat, I will buy food for your children.” I stopped eating because I was worried my children would be hungry. [The applicant] stayed home watching what I was doing and stopped buying food as he had control of the money. [The applicant] stopped me from buying clothing and stopped giving me money. [The applicant] told me many times that I should go back to Bangladesh and leave the children with him, however I refused.

Since arriving in Australia [the applicant] has treated me poorly and told me that he would kill me. He physically assaulted me by twisting my arm and strangling me.”

115. In a further supplementary written statement dated 8 September 2023, the applicant’s wife said that the applicant said he would harm her if she did not return to Bangladesh. She gave an account of the applicant saying to her that he had been in Australia for approximately 20 years and that he knew how to “get away with it”. She also said that in the last ten days of March 2023, the applicant again told her to leave the children in Australia and move back to Bangladesh, and said that if she did not, he would harm her. She refused and said that the applicant reached forward and grabbed her right wrist with his left hand, twisting her right arm behind her back. She said this lasted for around 30 seconds. She noticed three finger marks on her right wrist but did not take photos or see a doctor.

116. In further allegations, the applicant’s wife asserted that the applicant and his father had facilitated the kidnapping of her brother in Bangladesh. The motivation behind the kidnapping was asserted to be an attempt to persuade her to return to Bangladesh without the children. In her statement to Police dated 27 May 2023, she recounted an exchange with the applicant on 7 April 2023, saying that she had heard a conversation between the applicant and his father in which the father confirmed that the brother had been kidnapped, and the applicant said to his father: “Ok do more, I only need these children”. After this phone call, the applicant told his wife to return to Bangladesh and leave the children in Australia. She said that the applicant said to her: “my father and I are doing this because I want to send you back, if you don’t go back we will do more so leave Australia to save your brother and mothers life”. The following day, on 8 April 2023, the applicant’s wife left the marital home with her children, and reported matters to the Police.

117. She told Police that after learning of the kidnapping incident on 7 April 2023, she subsequently received a phone call from her mother on 21 May 2023, saying that unknown males had ransacked the family home in Bangladesh and kidnapped the brother again. The kidnappers demanded the payment of monies and assaulted the brother over a number of days. Then, on 27 May 2023, the applicant’s wife was again contacted by her mother who said that the brother had been kidnapped yet again, with a demand for money. The mother sent the recording of a conversation regarding the kidnapping to the applicant’s wife via WhatsApp. She said that her mother had recorded phone conversations with the kidnappers and that her mother could hear her son being tortured. In her written statement, she said that she was fearful for her life and her children’s lives. The kidnappings were reported to the Australian Federal Police for investigation, and involved DFAT and INTERPOL. The applicant’s wife was observed by Police to show extreme anxiety when listening to the WhatsApp recordings made by her mother.

118. The applicant participated in an electronically recorded interview with Police on 30 May 2023, in which he denied that he had engaged in domestic violence and denied any intimidating behaviour. He referred to fasting during Ramadan in March 2023, saying that both he and his wife did the fast, but he denied threatening his wife that he would starve the children if she ate. He acknowledged that his wife did not have access to bank accounts because she had only recently arrived in Australia and they had not had a chance to attend to that, particularly as during Ramadan they don’t do much outside. The applicant emphatically denied having ever threatened to kill his wife. He said he never ever shouts to his wife, or uses bad language to her. He denied twisting her arm and strangling her. The applicant said that he thought his wife had some mental crisis or psychological issue. He said that she did not cooperate with his parents. He told Police that his mother-in-law was “psycho”, very narrow minded and negative. The applicant agreed with a comment by the interviewing officer that he had a lot of marriage issues to contend with. He conceded that he thought his wife had no intention of having a family life with him, and that she was using the applicant to come to Australia. In somewhat contradictory statements, he then said that he loved and trusted his wife and wanted to have a happy family with her. Against that, he also said that his wife was not cooperating, and was always grumpy and in a bad mood.

119. Despite his negative statements about his wife and the state of their marriage, when being cross-examined in the criminal proceedings, the applicant stated that his relationship with his wife was “really good”.

120. The applicant was found not guilty of the offences of common assault and stalk/intimidate intend fear physical etc harm (domestic) against his wife in Local Court criminal proceedings in July 2024. In considering the applicant’s statements made during his recorded Police interview and his oral evidence given in the criminal proceedings, the Magistrate concluded that his evidence could not be discounted as being unreliable or untruthful. In light of some inconsistencies in the evidence given by the applicant’s wife, and applying the criminal standard of proof, Her Honour could not be satisfied that the assault on the applicant’s wife occurred in the manner that she said it had occurred. Additionally, based on her oral evidence during the criminal hearing, the Magistrate concluded that the applicant’s wife did not express any fear.

121. We note that the allegations that the applicant sexually assaulted his daughter and physically assaulted his son, as disclosed to DCJ, have not been tested. The allegations are very serious and raise concerns about the safety, welfare and well-being of the children, particularly in light of their circumstances and vulnerabilities as very young children who are wholly dependent upon their parents for their needs. In line with the Court of Appeal decision in CXZ, the allegations are very relevant to our assessment of the applicant’s risk to the safety of children.

115. Under cross-examination in the Tribunal hearing, the applicant denied that he had rubbed his daughter on her breasts and vagina inappropriately. He denied that he had pushed his son off the kitchen bench and dropped him on his head. He denied that his wife had wanted a divorce, and denied that he had forced her to have intercourse. He denied that he had threatened that the children would not eat if she ate. The applicant agreed that his wife had left because of the alleged kidnapping of her brother.

116. The applicant said that he and his wife had “never” argued, however he said that she did not have a positive attitude and complained to the children.

Tribunal’s finding

124. Under cross-examination, the applicant sought to blame his wife for having psychological issues as the reason for her allegations. Given his statements to Police about the issues in his marriage and his negative comments about his wife’s attitude and his mother-in-law, we do not find his evidence that he had never argued with his wife to be plausible. We do not find his evidence to be a reliable account of the state of his relationship with his wife or her family.

125. On the applicant’s own evidence, the marriage appears to have been plagued with disagreement and discord from the very beginning. Based on his wife’s disclosures to DCJ and the Police, the relationship was one in which she felt fear for her personal safety and that of her children. This extended to fear for her immediate family members in Bangladesh. The applicant acknowledged to Police and this Tribunal that his wife had left the marriage after learning of the alleged kidnapping of her brother. In our view, her response (to flee with her children to a refuge) demonstrates the fear that she genuinely held for her safety, the safety of her children, and the safety of members of her family in Bangladesh.

126. We accept the submissions made by the Children’s Guardian, that the lack of disclosure by the applicant’s daughter of any sexual assault upon her is a neutral factor in considering the strength of the allegation. We note that the child was very young (around four years of age) at the time, with limited language skills. We also understand that the child had been assessed as having limited development. Additionally, the child was experiencing an unsettling time in a refuge with her mother and baby brother after having been in Australia for only a relatively short period of around six weeks.

127. On balance, we find that the applicant engaged in coercive and controlling behaviour towards his wife. We also find that the applicant has no insight into the effect of his conduct upon his wife and children. We find that it is possible that the applicant engaged in the conduct as alleged by his wife. Applying CXZ, this is relevant to considering whether the applicant poses a risk to the safety of children. In all the circumstances, taking into account the applicant’s history of threatening and violent conduct, and having regard to the detailed and consistent accounts by his wife to DCJ and the Police, we find that the applicant poses a real and appreciable risk to the safety of children.

128. We have given a moderate amount of weight to the allegations made by the applicant’s wife, in the overall assessment of the applicant’s risk.

2019 Convictions

129. The applicant was charged with “Common Assault” under s 61 of the Crimes Act 1900 (NSW) and “Stalk/intimidate intend fear physical etc harm (personal)” under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) following an incident on 21 April 2019. According to the Police Facts Sheet, the applicant was managing a rental property for a landlord and an argument ensued between the potential tenant and the applicant about the payment of two weeks’ rent. The applicant was alleged to have said to the victim “I am going to break your bones” before attending the property. The applicant was observed to be holding a hammer in his hand as he walked down the driveway to the property, following which the victim locked himself in the bathroom and called triple zero. When Police arrived at the property, they yelled at the applicant to “drop the hammer” which he did. The applicant told Police he had only brought the hammer “for self defence because they threatened to bash me”. The applicant declined to participate in an electronically recorded interview and was charged.

130. The applicant pleaded guilty to the charges and was convicted in the Local Court of both offences, receiving a Conditional Release Order for a term of two years. In a letter addressed to the Presiding Magistrate, the applicant apologised for his behaviour, saying it was wrong and that he was deeply regretful for his behaviour. He stated that the prospective tenant had said some very rude things to him and that he took the hammer with him because he was scared there might be a few people at the property who might hit him. In his letter, the applicant said that his conduct was out of character but he accepted full responsibility for it.

131. The applicant submitted two character references to the Presiding Magistrate. Both referees made the following statement:

“I am aware that [the applicant] has been charged with assault and intimidation He has says (sic) that he is pleading guilty to the intimidation charge and police are to drop the assault charge.”

132. Under cross-examination in the proceedings before this Tribunal, the applicant denied threatening the victim that he would break his bones. Instead, his evidence was that the tenant had made that threat to himself, the applicant. He said that he carried the hammer for his own self protection, and that the victim and his friends threatened to hurt him and said that they wanted to kill him. He also said that he was by himself, contrary to the Police Facts Sheet which referred to a co-accused also being charged with the same offences.

133. The applicant’s oral testimony was that the solicitor representing him made him plead guilty and did not try to help him. When asked about his letter of apology to the Court, the applicant said that he wrote the letter on the advice of his solicitor. When asked whether the letter was not truthful, the applicant again said that his solicitor advised him to write the letter. With respect to the statements by the two referees that Police had dropped the assault charge, the applicant said that there was a misunderstanding and that he passed the reference letters to his solicitor who provided them to the Court.

134. The applicant said that not everything alleged in the Police Facts Sheet was true. He repeatedly said that he pleaded guilty and wrote the letter of apology on the advice of his solicitor. When questioned about accepting responsibility for the incident on one hand, but also saying, on the other hand, that the incident as described in the Facts Sheet did not happen, the applicant said that he had not harmed the victim. The applicant said that he was a victim of the situation. He also conceded that he had been happy to mislead the court, on the advice of his solicitor.

Tribunal’s finding

135. The applicant’s oral testimony in these proceedings demonstrated that he did not accept responsibility for his conduct and that he blamed the tenant for being rude and threatening him. We place considerable weight on statements he made that seek to minimise his conduct since they demonstrate he has not accepted responsibility for his conduct, and has limited insight into his behaviour and its impact upon others.

136. More importantly, his evidence demonstrated that he was not truthful, and that he had sought to mislead the Court by providing a letter of apology and references, in order to achieve a more favourable outcome.

137. Whilst the 2019 Convictions concerned an adult victim and not a child, when considered alongside the more recent allegations made by the applicant’s wife in 2023, we cannot ignore the possibility that he has a tendency to escalate conflict by engaging in threatening and violent behaviour and that he may repeat the behaviour, with children present.

138. When considering the applicant’s overall criminal history, we have given a moderate amount of weight to his conduct which resulted in the 2019 convictions, in the assessment of his risk.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b) of the Act

139. The applicant’s wife asserted that the Alleged 2023 Offending Conduct occurred between the date when the applicant’s wife arrived in Australia, on 22 February 2023, and 8 April 2023 when she fled the marriage with the children and sought refuge.

140. Since April 2023, there is no information before us to invite comment on the applicant’s conduct. No information has been provided to assist in evaluating whether the applicant has engaged in therapeutic counselling regarding his conduct in 2019 and 2023. The applicant did see AS, General Psychologist, on 25 November 2024, seeking a letter stating that he is of good mental health, in support of his application to have his WWCC clearance restored. The psychologist provided a letter dated 10 December 2024 addressed to the Children’s Guardian and this is discussed more fully with respect to s 30(1)(j) below.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

141. The applicant was aged 41 at the time of the Alleged 2023 Offending Conduct.

142. At the time of the 2019 Convictions, he was aged 37.

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: s 30(1)(d)

143. At the time of the Alleged 2023 Offending Conduct, the applicant’s wife was aged 31, his daughter was aged 3 years and 10 months, and his son was around 11 months of age. The applicant’s wife experienced some vulnerability since she has no immediate family here in Australia. She apparently has a friend in Adelaide. Additionally, her children are still very young and entirely dependant upon her for their safety and protection.

144. At the time of the 2019 Offending Conduct, the victim was aged 19. There is no information available to suggest that the tenant was vulnerable in any respect.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(1)(e)

145. The age difference between the applicant and his wife is 10 years. As already noted, his daughter was aged 3, approaching the age of 4, and his son was around 11 months of age.

146. The age difference between the applicant and the victim of the 2019 Offending Conduct was around 18 years.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(1)(f)

147. The children involved in the Alleged 2023 Offending Conduct were the applicant’s own children.

148. We understand that the tenant involved in the incident that resulted in the 2019 Convictions was an adult.

The person’s present age: s 30(1)(g)

149. The applicant is currently 43 years of age.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

150. The seriousness of the applicant’s criminal history was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

151. If the applicant repeats the conduct as alleged by his wife towards his children, or threatens or physically assaults her in their presence, it would have a strong and traumatic effect upon them and cause them emotional, psychological and possibly physical damage.

152. Without the benefit of an independent expert psychological assessment of the applicant’s risk profile, it is difficult to assess with confidence the likelihood that he would repeat his threatening and violent conduct. Having said that, we have previously noted that the applicant’s conduct in 2019 towards a tenant and his alleged conduct in 2023 indicates that he may have a tendency to resort to threatening and violent behaviour when faced with having to deal with situations of conflict. Police records contain damning comments made on 30 May 2023 about their assessment of the applicant:

“The accused has shown a repetitive propensity for violence towards the victim. The accused behaviour appears to be intensifying and becoming more repetitive and violent…Police hold serious concerns for the safety and wellbeing of the victim and her children.”

153. We acknowledge that the Police assessment of the reported behaviour was based on the information provided by the applicant’s wife. However, there is no evidence before us that the applicant has engaged in rehabilitation or therapeutic counselling to reflect upon any potential underlying triggers for his conduct or to consider the impact of his behaviour upon his wife and children.

154. When giving his oral evidence, the applicant did not demonstrate that he has reflected upon his conduct or that he has insight into the impact of his conduct upon others.

155. We cannot therefore discount the possibility that the applicant may repeat his threatening and intimidatory behaviour in the future. If that conduct was to occur in the presence of children, it would likely cause emotional and psychological harm, and potentially physical harm.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

156. The AVO against the applicant was dismissed on 11 July 2024. The Tribunal understands that there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

Any information given by the applicant in, or in relation to, the application: s 30(1)(j)

157. The applicant provided a short letter addressed to the Tribunal dated 12 December 2024. It is notable that the applicant did not specifically address the allegations made by his wife other than to state that the court verdict demonstrated that he is “fully innocent”. He stated that he has a caring and loving close relationship with his children and that his character references are from people who have known him closely for a long time and know how much he was committed to all his family members.

Character reference from LM

158. The applicant provided a character reference from LM, a friend and fellow community volunteer who has known the applicant for more than four years. LM’s reference noted that the applicant had been found not guilty of the charge of “stalk/intimidate intend fear physical harm”. With respect to the 2023 criminal proceedings, the applicant’s oral evidence was that he explained all matters that were in the statement to Police, but could not give specific details other than to refer to his wife’s allegations about not providing groceries and not giving time to his wife and the children. He said that he told LM the Court’s verdict, that he was found not guilty.

159. With respect to the 2019 criminal proceedings, the applicant’s oral testimony was that he had given LM a brief description of the incident, explaining that the tenant had not paid the rent and had abused him on the phone. He conceded that he did not provide LM with a copy of the Police Facts Sheet. He did, however, tell LM that he was given a good behaviour bond. His evidence was that LM made no reference to those proceedings in the reference because they were not relevant. When asked if he considered it was important to disclose a conviction, especially concerning violence, the applicant said that he had covered the issue verbally.

160. In his oral evidence, the applicant acknowledged that LM had not seen him with his children.

161. LM described the applicant as a trustworthy, reliable and caring individual who had been consistently employed in the education field and was a valued member of the local community. LM’s reference noted that the applicant had received a Covid Hero Award in recognition of his “outstanding efforts” during the Covid lockdowns. Finally, LM said that the applicant gives invaluable voluntary assistance to people from overseas, helping them settle into the community, find accommodation and employment.

162. In our view, LM’s reference indicates only a limited knowledge of the applicant’s criminal history. The applicant’s oral evidence indicated that he had minimised his offending conduct in the 2019 criminal proceedings and deflected blame onto the tenant. His evidence indicated that he did not disclose to LM with any particularity the serious allegations of physical harm towards his wife and children and allegations of his controlling behaviour. He did, however, advise LM that he was not guilty.

163. In light of these observations, we only give a small amount of weight to LM’s character reference.

Character reference from MC

164. The applicant also provided a character reference from MC who has known him for almost ten years. MC stated that the applicant had shared his “family issues” with her and that the allegations made by his ex-wife were “totally false” and completely out of character, as evidenced by the Court verdict. MC’s reference said that she knew how keenly the applicant had waited for his family to relocate to Sydney as he wanted to start a family life here.

165. MC stated that the applicant has “consistently proven himself to be a kind-hearted, helpful, loyal and dedicated person” to her and in his professional life. The referee said that he was “adorable and caring” as a father to his children.

166. This reference also suffers with a lack of specificity concerning the applicant’s alleged conduct with respect to both the 2019 and 2023 criminal proceedings. In his oral testimony, the applicant could not remember exactly what he had told MC about the allegations, but said that he told her about the 2023 common assault and intimidation allegations. He conceded that he did not tell MC about his convictions in 2019.

167. When asked about whether he had disclosed the allegation of sexual harm, the applicant said that he had broadly used the words “physical harm”. His evidence was that he did not disclose the actual substance of the allegations because his wife could not provide proof.

168. We find that the applicant minimised his conduct with respect to both the 2019 and 2023 incidents, which indicates a failure to accept responsibility for his behaviour. He did not express remorse or regret, or demonstrate that he has any insight into the effect of his conduct upon either the tenant, or his wife and children. We have given the reference from MC only a very minimal amount of weight.

The Psychologist’s letter in support

169. As previously noted, the letter and notes of AS, General Psychologist, were not admitted on the basis that AS was an expert, and AS was not available for cross-examination. The information provided in AS’s letter of 10 December 2024 was based solely on the information provided by the applicant in support of the applicant’s request to have his clearance reinstated.

170. AS stated that the applicant demonstrated excellent mental health, and had no symptoms of anxiety, depression or stress. AS asserted that this view was supported by the applicant’s then recent results on the Depression, Anxiety and Stress Scales (DASS) where he scored zero in all categories, indicating no clinically significant psychological distress. AS held the view that the applicant was resilient and focused on his personal and professional responsibilities, despite having faced challenges over recent years. AS did not elaborate on those challenges, but noted that the applicant’s wife had made allegations against him, with claims of aggression and abusive behaviour. AS stated that the applicant had “never faced charges” related to those claims. This is clearly an incorrect statement, and in any event is inconsistent with AS’ consultation notes made on 25 November 2024 in which it was noted that accusations of domestic violence against the applicant were dismissed in court. AS noted that the AVO application against the applicant had been rejected.

169. With respect to the applicant’s relationship with his children, AS stated that the applicant was “actively working” with his solicitor to establish contact and visitation rights with his children. However, no evidence of those efforts by the applicant was before us. In his consultation notes made on 25 November 2024, AS noted that the applicant was feeling “a bit sad and worried about his children’s welfare”, but otherwise was “doing okay”. AS stated that the applicant showed concern for his children and disappointment in his marital situation. AS also noted that the applicant demonstrated good insight into his situation and emotional state. We note that AS made no comment on whether the applicant showed insight into the impact of the alleged behaviour upon his wife and children. AS identified no significant risk factors but this comment was not made in the context of assessing whether the applicant posed a risk to the safety of children. Overall, AS expressed the view that the applicant was coping well mentally, and was adequately managing his emotions and daily functioning.

170. Notes of the applicant’s consultation with AS on 6 December 2024 refer to the applicant’s positive mood and mental state. Any stress experienced by the applicant appeared to be related to not having a WWCC clearance, as it impacted upon his work although his employer had kept him “on the job”.

171. Under cross-examination, the applicant said he had not provided any documents to AS. The applicant said that he explained to AS that his wife had alleged to Police that he did not buy groceries or clothing and pushed the children. When asked whether he had explained to AS the allegation that he had physically assaulted her, the applicant stated that he had not harmed his wife or children. He said that he did not tell AS that his wife had accused him of strangling her and twisting her arm, and then changed his statement to say that he had passed on the information to AS. He did not tell AS that he had been accused of sexually inappropriate conduct with his daughter. At one point in his evidence, the applicant said that he told AS everything, but then recanted by saying that he only told AS the things that appeared in AS’ notes. The applicant then said he could not remember what he had said to AS. However, the applicant’s evidence was that he did not tell AS about his 2019 convictions.

172. It was evident from the applicant’s cross-examination that he had a poor recollection of precisely what information he had given to AS. The only information contained in AS’ consultation notes concerning the applicant’s wife’s allegations appeared as “His wife made complaints about him being aggressive, not buying groceries, and not looking after the children, which were proven false in court on 15th July”. It was equally evident to us that, in the interests of obtaining a letter of support from AS, the applicant had sought to minimise his conduct with respect to his 2019 convictions and the allegations made by his wife. On the basis of the consultation notes, it was apparent that AS had no knowledge of the conduct which resulted in the applicant’s convictions in 2019 and no knowledge of the allegations of physical harm to his wife or sexually inappropriate behaviour with his daughter.

173. On the basis of information provided by the applicant, AS’ notes record that the applicant’s wife returned to Bangladesh at the end of 2022 due to “reported psychological problems”. Whilst we do not have information to confirm or deny whether the applicant’s wife travelled to Bangladesh at that time, there is no evidence provided in support of the applicant’s contention that his wife suffered any psychological problems or mental illness. AS’ notes also record the applicant’s view that his wife never cooperated with his parents or family and that her attitude changed when she started complaining about childcare and other issues.

174. The amount of weight to be applied to AS’ letter and notes is heavily discounted because the views expressed are entirely dependant upon the information provided by the applicant. AS was not briefed on the 2019 convictions or the specific allegations of physical harm to the applicant’s wife or sexually inappropriate conduct with his daughter. AS also assumed that the wife’s accusations of domestic violence were false, on the basis of the information provided by the applicant and on that basis that they had been dismissed in court. However, the allegations of abuse towards the children have not been tested in any court. We also note the finding made by the JCPRP (see below) concerning the applicant’s daughter.

175. AS’ notes do not refer to the applicant undergoing therapeutic counselling, to reflect upon his conduct and reflect upon any underlying triggers for his conduct. AS’ notes make no reference to the applicant regretting his conduct or accepting responsibility for his conduct. The applicant’s primary concern appears to be his professional standing and his standing in the community. We acknowledge that, in his letter to the Tribunal, the applicant stated that he has a “very adorable, caring and loving close relationship” with his children. However, on the evidence before us, we have very little confidence that the welfare of his wife and children are matters of primary concern to him. In a letter concerning the 2023 criminal proceedings in which the applicant was found not guilty, his legal representative refers to being in touch with the applicant to discuss “parenting matters”. However, the applicant has not provided further evidence of efforts made to allow him to have contact with his children, and there is no evidence before us to demonstrate that he is sufficiently motivated or concerned about their safety, welfare and wellbeing to seek urgent orders to have contact with them, particularly given their circumstances and vulnerability.

176. On balance, we have given only a minimal amount of weight to AS’ letter of support.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

179. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

Any other matters that the Children’s Guardian considers necessary: s 30(1)(k)

180. We note that the Children’s Guardian considers that the Joint Child Protection Response Program (JCPRP) on balance substantiated a risk of sexual abuse to the applicant’s daughter given her age and vulnerability, and a risk of physical abuse to his son. The JCPRP made a further finding, that these risks would increase if contact with the applicant resumed or the children made disclosures.

Overall evaluation of risk

181. In determining whether the applicant poses a risk to the safety of children, we assessed the weight to be assigned to the allegations made by the applicant’s wife. In that exercise, we considered the recency and seriousness of the allegations, as well as the amount of detail consistently provided by her to DCJ and the Police. Her dramatic action to escape from the marriage in circumstances where she had no family support or financial independence adds weight to the credibility of her asserted fear and the allegations she made. The neighbour’s initial contemporaneous report to DCJ (the details of which were subsequently corrected by the applicant’s wife in an effort to truthfully report the allegation concerning her daughter) and the extent of the Police response and investigation resulting in charges being laid against the applicant, also lend evidentiary support for the allegations.

182. We have also considered the applicant’s previous relevant criminal record and conduct which demonstrates aggression and an underlying intent to use force to resolve a situation of conflict with others.

183. We are not satisfied that the applicant has insight into the impact of his coercive and controlling behaviour upon his wife and children, or the impact of his conduct upon the victim of his 2019 conviction.

Conclusion

184. On balance, the Tribunal is satisfied on the evidence before it that the applicant poses a real and appreciable risk to the safety of children.

185. In light of the conclusion reached, it is not necessary to consider the reasonable person and public interest tests in ss 30(1A)(a) and 30(1A)(b) of the Act.

Orders

1. The decision of the Children’s Guardian dated 30 October 2023 to cancel the applicant’s working with children check clearance is affirmed.

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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: 03 June 2025