GNH v Children's Guardian

Case •

[2025] NSWCATAD 178

•

23 July 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: GNH v Children’s Guardian [2025] NSWCATAD 178
Hearing dates: 2 June 2025
Date of orders: 2 June 2025
Decision date: 23 July 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
Emeritus Prof P Foreman AM, General Member
Decision:

(1) The decision of the Respondent dated 3 July 2024 be set aside and substituted with a decision that the Applicant’s working with children check clearance be reinstated.

(2) The Tribunal notes and the parties agree that based on order (1), the Applicant will apply for a new working with children check clearance and the Respondent will grant a working with children check clearance noting the Tribunal’s finding in making Order (1) that the Applicant is not presently a risk to children.

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — cancellation of clearance – alleged conduct of domestic abuse — evidence charges dismissed — whether a real and appreciable risk to the safety of children — reasonable person and public interest tests

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

CXZ v Children’s Guardian [2020] NSWCA 338

DAI v Children's Guardian [2017] NSWCATAD 308

DVV v Children's Guardian [2020] NSWCATAD 237

M v M [1988] HCA 68; (1988) 166 CLR 69

McKinnon v Department of Treasury (2005) FCAFC 142

PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514

VQB v The Secretary to the Department of Justice [2013] VCAT 789

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

Texts Cited:

None cited

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

Counsel:
H Murphy (Respondent)

Solicitors:
Nikola Velcic & Associates (Appellant)
Crown Solicitor (Respondent)
File Number(s): 2024/00278907
Publication restriction: With the exception of officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

  1. On 3 July 2024, the respondent made a decision to cancel the applicant’s working with children check clearance pursuant to s 23(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The applicant, who has been given the pseudonym GNH, was granted a paid working with children clearance on 10 June 2020. He operates a business that requires him to have a clearance: first, because he supervises apprentices who are usually younger than 18 years old and, secondly, because he and his staff are often required to work on site at hospitals and schools.

  2. The applicant was notified of the cancellation by notice dated 3 July 2024. This was reportedly not long before the finals series for the under 18s team that he coached. After notification of the cancellation, GNH was required to immediately withdraw from this role and could no longer participate in his business work activities that required his presence on site at schools and hospitals.

  3. After reviewing the documentary evidence and statement of the applicant and hearing his oral evidence, we were comfortably satisfied by the end of the hearing that GNH does not pose a real and appreciable risk to the safety of children. At the conclusion of the hearing, we set aside the decision under review and substituted a decision that the applicant’s clearance be reinstated. These are our written reasons for the orders.

Background

  1. The applicant is a 52-year-old man who was married to his former partner, also the mother of his four children, in August 2000. The applicant and his former partner separated on a final basis on 15 April 2023, after several trial separations and reconciliations and after having been married for over 20 years. Three of the children are young adults and the youngest child is now 15 years old.

  2. On 20 May 2020, the applicant was served with an apprehended domestic violence order (ADVO) in favour of his ex-wife. The order included his two youngest children. He was excluded from the family home and was not entitled to have contact with his two youngest children. The applicant’s ex-wife filed an application in the Federal Circuit Court, now the Federal Family and Circuit Court (FCFC). On or about 8 June 2020 the applicant saw one of his children at the local shopping centre. The applicant contends that this was accidental but this put him in breach of the ADVO. He was charged with the breach and, after pleading guilty, he was found guilty but without proceeding to conviction. The matter was dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  3. From 20 May 2020 to approximately mid-August 2020, the applicant’s children lived with his ex-wife. The eldest two children have lived with him since August 2020. On 7 August 2020, the FCFC discharged orders previously made on 2 June 2020 limiting the applicant’s contact with the children. The FCFC ordered that the children live with the applicant’s ex-wife and that the children spend time with the applicant on nominated days and weekends during school holidays. The applicant states that his children, including the two younger children, have lived with him from September 2020.

  4. The applicant and his former partner entered into a financial agreement dated 22 December 2023. They were divorced in April 2023, and the applicant now has a new partner. The children have continued to live with him, although there are no formal orders about this from the FCFC.

  5. The applicant alleges that he and his ex-wife had a difficult and volatile relationship which commenced when his ex-wife started excessive drinking. There is some support for this allegation in the order made by the FCFC on 7 August 2020, which directed the applicant's ex-wife to do all such acts and make all such arrangements to undergo CDT testing (a blood test to detect alcohol consumption) at the request of the independent children's lawyer. The applicant was ordered to undergo psychological testing.

  6. Between March 2018 and August 2020, the applicant was charged with a number of offences following complaints made by his ex-wife. All cases, with the exception of the breach ADVO referred to above, were dismissed with the applicant being found not guilty after a hearing. In three of the cases, the court found a prima facie case was established but the charges were ultimately dismissed. The detail of these matters is set out in the outline of the evidence referred to later in these reasons. This is based on evidence which was provided either by the applicant or the respondent. These matters are not in dispute. All charges related to claims made by the applicant's ex-wife.

  7. On 10 June 2020 the applicant was granted a paid working with children check clearance. On 22 July 2020 and again on 22 March 2022, he was sent a notice of risk assessment advising that a risk assessment was required. The triggers for the risk assessment, which were not specified in the notices, appear to be the pending charges and ADVOs against him at the relevant time. In response to the first notice of assessment, the applicant provided multiple references attesting to his good character. These references were primarily from people involved, including parents, in the local sporting club where the applicant was a coach. There were also references from a former employer and work colleagues. The respondent also had regard to a NSW Police History of apprehended violence orders which recorded multiple ADVOs, all of which were either revoked, expired or varied. There was also information provided by the Department of Community Services. The applicant was not the focus of the reports. No action was taken as a result of this first assessment.

  8. The second notice of risk assessment was again based on pending charges.

  9. Following a lengthy assessment, the applicant was notified by the respondent on 23 April 2024 that it was proposed to cancel his working with children check clearance. In response to this notice, the applicant submitted information to the effect that his ex-wife had an addiction and now lives alone with almost no contact with her children, the children are known to child protection services because of concerns relating to the applicant’s ex-wife rather than him, he had never engaged in domestic abuse but was charged with a domestic violence offence in 2020 for which he was found not guilty. The applicant acknowledged that he has become hostile to people when his family experienced problems, but he has been engaged in remedial action and has been seeing a counsellor. The working with children check clearance is vital to him.

  10. After considering the information provided by the applicant and the various charges, the respondent determined that the applicant posed a risk to the safety of children because there was “credible evidence suggesting the applicant was engaged in a pattern of domestic abuse despite this only resulted in one finding of guilt” in relation to criminal charges. According to the respondent, the applicant had demonstrated hostility and aggression towards a number of individuals outside the conduct in relation to the marriage, including in his correspondence with the respondent’s staff. Further, the applicant had not provided any evidence of behavioural change or acceptance of responsibility for his conduct, and he continues to be very critical of his ex-wife which lends weight to the information contained in the police charges relating to domestic violence.

  11. The applicant was notified of this decision by letter dated 3 July 2024.

Statutory framework

  1. The WWC Act establishes a statutory scheme to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances. This is the sole object of the WWC Act as set out in s 3. 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 WWC Act.

  2. 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.

  3. 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. Section 8 provides that a worker must not engage in child-related work unless the worker holds a working with children check clearance of a class applicable to the work. Section 12 provides for two classes of working with children check 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.

  4. Section 13 provides that a person may apply to the respondent for a working with children check clearance. The application must specify the class of clearance requested. A person who is refused a working with children check 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 of the WWC Act.

  5. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the Working with Children 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)).

  6. Section 15 provides that the respondent must conduct a risk assessment of an applicant for a working with children check 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. These matters are in similar terms to the matters the Tribunal must consider as set out in s 30 below.

  7. 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. offences

  1. Schedule 2, relevantly cl (1), identifies the offences that are specified to be “disqualifying offences” for the purposes of s 18(1) of the WWC Act. Breach of an ADVO is not a disqualifying offence.

  2. Under s 22, a working with children check clearance ceases to have effect 5 years after the date it is granted, unless it is sooner cancelled or surrendered.

  3. Section 23 provides:

Cancellation of clearances

(1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children.

(2) The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance.

(3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.

(4) The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.

  1. Section 27(2) provides that a person whose clearance has been cancelled by the respondent under s 23 may apply to the Tribunal for administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act)

  2. Section 30 sets out the matters the Tribunal must consider in determining an application for review and 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.

  1. If the Tribunal is considering setting aside a cancellation, which would have the effect of enabling the person to work with children, it must also consider the supplementary tests contained in s 30(1A) which provides:

(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.

  1. Accordingly, when considering an application for review of a decision to cancel a working with children check clearance, the Tribunal must be satisfied that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations in s 30(1). Before an order can be made, the Tribunal must also be satisfied about the supplementary tests in s 30(1A) of the WWC Act.

  2. Section 63 of the ADR Act provides that in determining an application for administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may decide to affirm, vary or set aside the decision under review. If the Tribunal sets aside the decision, it may make a decision in substitution for the decision set aside or it may remit the matter for reconsideration to the original decision maker in accordance with any directions or recommendations.

Outline of evidence

  1. The respondent provided several bundles of documents containing details about the charges, the applicant’s police history checks, information from the police event or incident reports (COPs) and information from the Department of Community Services (now Family and Community Services (FACS)).

  2. The applicant provided an affidavit dated 9 December 2024, orders from the FCFC, court documents, texts with his ex-wife, documents relating to the admission of the applicant’s ex-wife to hospital where she was assessed to be a mentally disordered person on 16 September 2020, a statement from a friend about previous allegations made against the applicant, a transcript of proceedings before the [omitted] Local Court and the application made by the applicant’s ex-wife to vary or revoke an apprehended violence order dated 6 December 2021.

  1. According to the applicant, in around 2017 he and his ex-wife began experiencing stress in the family and discussed separation. They decided to stay together and undertook counselling. In the applicant’s opinion, the main cause of the difficulties in their marriage was his ex-wife’s excessive drinking of alcohol.

  2. The applicant states that an incident occurred on 11 May 2020 when he returned home from work, found the house in a mess, with empty wine bottles and spilt drink on the floor. His ex-wife was intoxicated and asleep and the children were complaining that they were hungry. The applicant states that he woke his ex-wife and told her that he was leaving the house with the children because her behaviour was unacceptable. She became irate, told him he could not leave, and called the police. The police arrived soon after and his ex-wife told the police that the applicant was a violent person. There were no charges laid at that time. However, the applicant states that on 15 May 2020 his ex-wife attended the local police station and made several untrue and damaging false statements to the police. On the following Monday, 20 May 2020, when he returned from work, his home was empty, and the police attended and served him with an ADVO. As a result of this, the applicant was not allowed to contact his children and was excluded from his home. He filed an application with the FCFC the following week. He was later allowed to see his children after further orders were made by the FCFC. Despite this, an ADVO was in place from that time until August 2020 when the applicant states that a joint custody order was granted by the court.

  3. The breach of the ADVO occurred when he was a shopping centre, and he met his son there by coincidence. His son hugged him. This breach was unintended. A further issue arose in September 2020 when he had a call from his ex-wife’s sister who said she was worried about the possibility of his ex-wife committing suicide. They attended upon the premises, administered first aid and his ex-wife was taken into residential psychiatric care at a local hospital for a period of one to two weeks. After her release, his ex-wife reported him for breach of the ADVO. He was arrested, detained, but not charged. Following this, the applicant says that he filed an application in the FCFC for sole custody. This was granted on an interim basis.

  4. The applicant states said he is a person of good character and has no criminal record, but he has been subjected to false accusations by his ex-wife. This created great stress in his life and was damaging to his mental and physical health. The process of fighting false allegations in the local court has taken a heavy toll on him and his family. His children are now doing well, and he has been their sole carer since about September 2020. After his working with children check clearance was revoked, he had to stop coaching duties as the two teams he coached were coming into the finals series. He had to explain this to all of the parents. The applicant also supervises and employs a number of apprentices who may be under 18 years of age when they start.

  5. GNH told the tribunal that the children still live with him, and they still see their mother who is now living in Australia. He said that his ex-wife was getting treatment for her alcohol problems. He has never stopped them from seeing her. He said that not having the working with children check clearance had a big impact on his business. Prior to the order made on 3 July 2024, the applicant had two apprentices working for him. Those apprentices were now over 18 years old but if he were to employ younger apprentices, this would be a problem. He also said that there were difficulties in conducting his business because his staff were required to service equipment for schools, universities and hospitals. He was unable to attend any of those facilities to provide technical support for his staff if they were unable to resolve the issue. GNH gave an example have how this impacted his work on the previous Friday, where he was required to give his staff member telephone instructions about resolving a problem, which prolonged the process.

  6. The applicant was cross-examined by Counsel for the respondent.

  7. GNH was asked whether he undertook psychological counselling after the FCFC directed this in August 2020. GNH said that he did not because they went back to court before he could organise it, and there was a three or four week waiting list.

  8. GNH was referred to a COPs report dated 15 May 2020, being the day that his ex-wife made the application for an ADVO. The applicant’s ex-wife reportedly said she had experienced emotional, financial and verbal abuse from her husband for years. GNH said this statement reportedly made by his ex-wife was not true. They had discussed breaking up prior to May 2020. His ex-wife was scared about losing the children and she had been drinking following the death of her mother. When GNH said that he was leaving the home and taking the children with him, his ex-wife went to police. GNH said before she started drinking, his ex-wife was a great mother and wife. He was asked about why there was no letter of support from his current partner or from the children. GNH said that he did not want his children or partner to be dragged into the case. His new partner was aware of the allegations that had been made and his current circumstances, but he did not want his new life to be tainted. Having to fight the previous allegations had been difficult.

  9. GNH agreed there had been arguments between him and his ex-wife, but he believed the allegations made against him were made up to give his ex-wife an advantage in the family court proceedings.

  10. GNH was asked whether he had been aggressive to his ex-wife. GNH said that there were verbal arguments, but they did not escalate to violence. He observed that verbal arguments, by their nature, were aggressive.

  11. GNH further said that his four children are very close and the two youngest children still have contact with their mother. One of the oldest children has no contact and his older son sees his mother from time to time, but does not speak to GNH about it.

  12. GNH presented as a credible witness. We formed the impression that the applicant was being truthful about his account of the various events. For instance, GNH made concessions where appropriate and answered all questions under cross examination in a way that was directly responsive. He was not evasive or vague. His oral evidence was consistent with the evidence in his written statement. Relevantly, much of his evidence about the more contentious issues was corroborated by independent evidence.

  13. The applicant provided the transcript of the hearing before the Magistrate in late 2020. The proceedings were adjourned to 2021. The applicant also provided the transcript for the resumed hearing, which included the oral judgement of the Magistrate on this day. The Court dealt with numerous matters relating to a common assault charge in March 2018, the alleged contravention of an apprehended violence order in June 2020 and four charges for the contravention of apprehended violence orders alleged to have occurred in July and August 2020. The applicant had already pleaded guilty to the unintentional breach of the ADVO arising from the shopping centre incident. All charges were dismissed following the hearing.

  14. In dismissing contested charges, the Magistrate observed as follows:

[The applicant’s ex-wife] did not present to me as a witness of truth, and I am unable to accept her version of evidence and her version of events on the evidence that I have heard before me. It is in relation to the fact that I have had regard, as the prosecution submitted to me, of the distance in time, the delay in complaint but notwithstanding that I am not satisfied of [the applicant’s ex-wife’s] is credibility in this matter.

  1. The Magistrate also noted that the applicant gave evidence in the proceedings, although he was not required to do so and made the following observation that the evidence of the applicant:

…was given in a clear and logical manner at all times and had a ring of truth to it. He made appropriate concessions, and his evidence was further corroborated by exhibit A and exhibit 4 amongst the other evidence of Mr R.

  1. The Magistrate found:

In those circumstances in relation to each one of the sequences before me, I am unable to be satisfied beyond a reasonable doubt of the elements of those charges and, Mr GNH, in relation to all the defender charges before me, you are dismissed.

  1. On the first day of the resumed hearing, the Magistrate dealt with the uncontested charge of the contravention of the ADVO by the interaction with his young teenage son at the shopping centre under s 10(1)(a) and, as already noted, made a final ADVO in favour of the applicant’s ex-wife for two years and declined to make any order in respect of the younger children.

  2. The applicant also provided a copy of an application made by his ex-wife to vary or revoke the apprehended violence order which was put in place for two years on 13 May 2021. This application was filed on 6 December 2021 and includes the following statements made by the applicant’s ex-wife:

This final ADVO is only in place because GNH hugged his son while an interim order was in place. At the time our son [X] was named on the interim ADVO. [X] who is 15 should never have been listed on any ADVO. There were never any grounds, or any complaint made to add our children. The police added him. [X] was removed from the final ADVO in court despite the breach. [X] has lived with his father as sole carer since September 2020 with his other three siblings. GNH has never been violent or abusive to me or any other person. There is simply just no reason to hold an AVO on him.

In May 2020 when the ADVO was put in place there were several external issues that had affected me personally. In addition to these personal issues I was going through a breakup and was in family court. My mother had just died and I was unable to go to her because of COVID. I was given poor advice at the time, which I now know did not help. In the past two years this has contributed to the circumstances that we find ourselves in now. These issues have now been addressed. An ADVO should not have been issued against GNH.

………..

This order was put in place by the court. I did not request any orders and I do not need them. I do not need protection from GNH. I am not now, nor have I ever been in fear of GNH. He has never assaulted me, stalked me, harassed me, or caused me fear.

  1. The Tribunal was provided with the transcript of a hearing before the Local Court on 6 April 2022 in relation to charges laid against GNH for common assault, contravening an ADVO and attempt to stalk and intimidate. At the beginning of the hearing, the applicant’s counsel told the Court that the complainant, the applicant's ex-wife, had sent a copy of an affidavit sworn in March 2022 to his instructing solicitors. It was also noted that the applicant's ex-wife attached a copy of her one-way ticket from Australia back to her home country. The prosecutor indicated that they would get instructions on the new material but, in the meantime, would rely on the evidence of two independent witnesses.

  2. The affidavit sworn 23 March 2022 of the applicant’s ex-wife was in the following terms:

  1. At the time of making the affidavit, the applicant’s ex-wife was now living in her country of origin.

  2. She did not consent to the application made against the applicant or any ADVO against him. She had applied and attended the local court on 22 December 2021 to revoke the police ADVO against GNH.

  3. The events that led to the ADVO took place in early 2020. FACS had instigated an investigation into the care of her children and she was in fear of losing her children to her husband during a custody dispute. It was in these circumstances that she made the complaint which led to the ADVO.

  4. In relation to the events that gave rise to the most recent application before the court in 2022, she and GNH had attended a dinner in an attempt to reconcile their relationship. They were discussing issues. She had been drinking. They argued because they disagreed over the children. She became upset and decided to leave the restaurant. She became more upset and, as GNH followed her, they were arguing. At some point a person who she did not know approached her aggressively and started shouting at GNH. Another lady arrived and also started shouting at GNH. When the police arrived, she told police that she did not want to make any statement as nothing had happened.

  1. The Magistrate heard the matter and, after hearing evidence and cross examination of one independent witness as well as reading the statement of another independent witness, the Magistrate stated that there was a prima facie case to answer. However, after taking into account the statement made by the applicant’s ex-partner, he stated that he could not be satisfied beyond reasonable doubt in relation to any of the three charges and dismissed all charges. The Magistrate also revoked the ADVO made on 14 May 2021.

Submissions

  1. The applicant submits that the cancellation of his working with children check clearance should be set aside and his clearance should be reinstated. He does not have a criminal record and all charges, except for the charge that he pleaded guilty to, were dismissed following a hearing. This charge was dismissed pursuant to s10 of the Crimes (Sentencing Procedure) Act. The evidence supports the contention that the applicant does not pose a risk to the safety of the children. It is further submitted that, having regard to the evidence, the Tribunal should accept that GNH satisfies both the reasonable person and public interest tests.

  2. In the written submissions, the respondent submitted that the tribunal should dismiss the application on the basis that GNH poses a real and appreciable risk to the safety of children because of his history of criminal charges for an ongoing course of conduct amounting to domestic violence. It was further submitted the reasonable person would not permit their child to have direct unsupervised contact with GNH in the course of any child related employment and it is not in the public interest for GNH to be granted a clearance. In oral submissions, the respondent maintained the contention that the application should be dismissed. The respondent noted that the tribunal had not heard the evidence of the applicant’s ex-wife. It was further submitted that victims often do not report domestic violence and sometimes retract statements if they have been in an abusive relationship. The respondent said that it was also relevant to note that GNH did not have insight about his verbal aggression.

Consideration

Does the applicant pose a risk?

  1. In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523, Beech- Jones J discussed the assessment of risks, which are, as identified in s 5B of the WWC Act, “real and appreciable risks”. His Honour refers to the High Court decision in M v M [1988] HCA 68; (1988) 166 CLR 69, where issues of risk in relation to custody disputes for children was being considered and observed at [33] as follows:

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

  1. 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.

  1. Having regard to these authorities, we have assessed the evidence before us at the time of the decision to form a view about whether the applicant poses a real and appreciable risk to the safety of children.

  2. In determining this issue, the Tribunal must have regard to the factors in s 30(1). We set out our consideration of those matters below.

The seriousness of the offences (s 30(1)(a))

  1. Section 30(1(a) provides that the Tribunal should have regard to the seriousness of the offences with respect to which the person is disqualified or any among other matters that caused refusal of a clearance or imposition of an interim bar. In this case, the applicant’s working with children check clearance was cancelled primarily because there was “credible evidence suggesting the applicant was engaged in a pattern of domestic abuse despite this only resulted in one finding of guilt”.

  2. This conclusion by the respondent was based on the applicant’s history of criminal charges. We have had the benefit of reviewing more information which has been provided by the applicant, including the transcript of the hearings before the Local Court, the findings of the Magistrates, and evidence from the applicant about the circumstances leading to the charges and the ADVOs. The charges of common assault are objectively serious, but each of the charges was dismissed after hearing. They were not simply dismissed because the Magistrate was not satisfied beyond reasonable doubt but also because the Magistrate, having heard the evidence of the complainant and the applicant, found that the complainant was not a credible witness. In the second case, while the Magistrate found that there was a prima facie case because of the evidence of the two independent witnesses, the evidence given by those witnesses is based on what they observed at the time which was open to interpretation given the circumstances. The Magistrate took into account the statement provided by the applicant's ex-wife in dismissing the charges stating that, given the affidavit of the complainant, he could not be satisfied that there was any criminal offending.

  1. There is one offence to which the applicant pleaded guilty, namely a breach of the ADVO relating to the incident with his son at the shopping mall. The applicant described the circumstances of the breach, and this account appears to be supported by his ex-wife in her application to revoke the ADVO. Breach of an ADVO is a very serious issue, however, in this circumstance, it is apparent that the Magistrate accepted the explanation given by the applicant. This is reflected in the fact that the Magistrate ordered that no conviction be recorded pursuant to s 10 of the Crimes (Sentencing Procedure) Act. In our view, this is indicative of the low seriousness of the offence.

  2. As such, we do not accept, having regard to the evidence before us, that there is credible evidence that the applicant engaged in a pattern of domestic violence abuse over many years. There is evidence that the applicant may have become verbally abusive to his ex-wife, but this was in the context of arguments between them about her drinking and the children. There was verbal abuse both ways. The evidence provided by the applicant corroborates his evidence that his ex-wife became very intoxicated at periods, and she was struggling with mental health issues. This was repeated and he became frustrated. We accept that the respondent properly sought to test these issues in cross-examination, particularly given the possibility that the applicant’s ex-wife may have recanted her allegations through pressure or in wanting to reconcile with the applicant. We agree that this may be a possibility if there is a controlling relationship. However, this is not supported by the weight of the evidence before us.

  3. We have reviewed the evidence of the independent witnesses in relation to the second case. Their evidence reveals that they observed an argument between the applicant and his ex-wife where she was intoxicated, although this may not have been apparent to them at the time. The applicant was taking keys from her bag, which she was resisting. The witnesses did not know the background between the applicant and his ex-wife or even that they were in a relationship. Their intervention was understandable. They observed the applicant to be angry and there was an altercation between the applicant and his ex-wife. Whether the application pushed his ex-wife while trying to retrieve the keys from the bag or whether she fell, is not entirely clear from their evidence. Ultimately, the case could not proceed and was dismissed because the applicant’s ex-wife, who was the complainant, was not available to give evidence.

  4. Taking into account the totality of this evidence, we are not satisfied that the history of charges, the ADVOs and the finding of guilty supports the contention that the applicant poses a real and appreciable risk to the safety of children. It is also relevant to note that the FCFC, where the children had an independent lawyer, made orders granting joint custody.

  5. Our findings in relation to this matter are pivotal to the balance of our assessment of risk by reference to the s 30 factors.

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

  1. The alleged offences occurred at least 5 years ago in the context of acrimonious family court proceedings. The offences were found not to have been proven after hearings. The applicant has had the care of his children since about September 2020, he and his ex-wife are divorced and have resolved their family law dispute, he has a new partner and has established a business with several employees. There is no evidence he has committed other offences, although there is a reference in the decision to the applicant entering into “aggressive correspondence” with the respondent’s staff. The respondent has not pointed to any particular correspondence for us to be able to make an assessment of this.

  2. This factor tends to lend weight to the applicant’s contention that he does not pose a risk to the safety of children.

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

  1. The applicant was about 47 years old when the alleged offences occurred. He is now 52. Because the charges have been dismissed and we are not satisfied that the alleged conduct occurred, this matter is neutral.

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

  1. In this case, the applicant and his ex-wife were similar ages. She was vulnerable because there is credible evidence that she had mental health issues at the time, which led to her drinking. Despite this, this factor is neutral because we are not satisfied the conduct as alleged occurred.

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

  1. We have considered this in the context of ss 30(1)(a) and (b). As noted, there is no evidence that the applicant has offended against children or that there have been any complaints in this regard. He has supervised apprentices, some who have been under 18 years old, and his children have lived with him for the past 5 years. The absence of any complaints over this period is a factor that weighs in favour of the applicant’s contention that he does not pose a risk to the safety of children.

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

  1. We accept that if there was evidence that the applicant had a history of domestic violence, there could be a serious impact on children if this was repeated in front of children. However, having regard to our findings about the alleged offences, there is no evidence to suggest that conduct of this nature will be “repeated”. The respondent submits that the applicant has little insight in relation to his conduct. We disagree. He denies the abusive conduct and the criminal courts, which had the opportunity to assess this, have not found the applicant guilty of these serious offences. As already noted, it is not simply that the criminal courts were not satisfied at the criminal standard but both Magistrates expressed concern about the complaints.

  2. Denying misconduct in circumstances where the applicant has been found not guilty of the conduct the subject of the charges does not reveal a lack of insight. However, we accept that there is evidence that the applicant may have become verbally abusive given the circumstances. The FCFC ordered him to undertake counselling. In his evidence to the tribunal, the applicant conceded that his arguments with his ex-wife were aggressive but explained that this was in the context that arguments, by their nature, are aggressive. The tribunal did not have the impression that he was making excuses but rather that he was trying to explain the circumstances at the time.

  3. We are therefore not satisfied that there is likely to be a repetition of conduct that would impact children, and this supports the applicant’s contention that he does not pose a risk to the safety of children.

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

  1. There is no current order in place and, as such, this is a neutral factor in assessing risk. Relevantly, the ADVO which was put in place on 13 May 2021 was discharged by the court in April 2022.

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

  1. The applicant provided evidence in support of his application, which we have carefully considered.

  2. As outlined above, this evidence is strongly supportive of the applicant’s contention that he does not pose a risk to the safety of children.

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

  1. There is no evidence of information obtained by the respondent pursuant to the information sharing provisions of the WWC Act.

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

  1. This is a general catch-all consideration, which has already been encompassed by the evidence provided by the respondent which is contended to be relevant to a number of the other considerations.

Conclusion on risk

  1. For the reasons outlined above, we are satisfied that the applicant does not pose a risk to the safety of children. This being the case, we must now consider the supplementary tests in section 30(1A).

Supplementary tests for the grant of a clearance

Reasonable person test

  1. Section 30(1A)(a) provides that the tribunal cannot make an order which has the effect of enabling a person to work with children unless it is satisfied that 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.

  2. The parties agree that the reasonable person test is an objective test and that the reasonable person is taken to have knowledge of the applicant’s trigger offences or conduct and the surrounding circumstances of those offences or conduct, any other criminal history and the length of time since the offences and any expert assessment was made of the applicant (DAI v Children's Guardian [2017] NSWCATAD 308 at [91]). DAI and other decisions of the Tribunal refer to VQB v The Secretary to the Department of Justice [2013] VCAT 789 in relation to similar provisions under the Victorian legislation, where the Tribunal found at [36] that the relevant provision required:

…the application of an objection standard based on the views of a reasonable person 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.

  1. This approach was also confirmed by the Supreme Court of Victoria, again considering similar provisions in the Victorian legislation, in PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 where Bell J stated at [57]:

I have strong reservations with the proposition that the reasonable person test can be equated with a ‘”pub test” for what might be considered reasonable in the circumstances’, as submitted for the Secretary and accepted by the deputy president. Having regard to the nature and gravity of the issues involved, I think that, at best, it is a distraction to apply the reasonable person test by reference to what people in a pub might consider to be reasonable in the circumstances. As was correctly stated earlier in the reasons of the deputy president, the ‘reasonable person test is an objective test ...[that] relies upon a “reasonable” person having knowledge of all of the facts and surrounding circumstances’, and it is safer simply to apply the test upon this basis.

  1. The respondent accepts that the reasonable person would have knowledge of the applicant’s criminal history, including that the applicant has not been charged with any offences since 2021. The reasonable person would also be aware that the applicant’s charges were, all but one, dismissed by the Local Court. A reasonable person would be aware of the statements made by the applicant's ex-wife traversing her previous complaints, but a reasonable person would also have regard to the prevalence of coercive control in relationships in which domestic violence is present. Noting her vulnerabilities, the reasonable person would also be aware that there is a possibility the inconsistencies in her statements are more indicative of the presence of domestic violence rather than the absence of it. The respondent submits that the applicant’s alleged conduct clearly falls short of community standards and expectations, particularly for someone tasked with caring for children and ensuring their safety.

  2. We are not persuaded by these submissions. While we agree with the legal principles, we are not satisfied that the evidence establishes that the applicant’s ex-wife recanted her allegations because of the presence of domestic violence. Not only did she provide in affidavit in support of her request that the criminal charges considered by the Local Court in April 2022 not proceed, but she previously made an application to the Local Court for the revocation of the ADVO. On that occasion she took steps to appear before the Local Court requesting the revocation. There is no evidence before us, other than speculation, that this was not of her free will. Further, the applicant’s position is corroborated by the findings made by the Local Court in the first hearing and, to an extent, in the second hearing. It is also significant that the FCFC made orders in favour of the applicant in respect of the custody of the children given the FCFC is has a child-centred mandate and the children were supported by an independent court appointed lawyer.

  3. In our view, the reasonable person, having regard to all of these matters, would allow his or her child to have direct contract with the applicant that was not directly supervised by another person while he was engaging any child related work. We therefore find that this test has been satisfied.

Public interest test

  1. The public interest test requires that the tribunal, before making an order enabling the applicant to work with children, find that it is in the public interest to make such an order. The respondent refers to the decision of McKinnon v Department of Treasury (2005) FCAFC 142 at 8-10, where the Full Court said

The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances.

  1. The respondent further submits, and we accept, that the public interest is in the interests of the public at large, not merely the individual private interests if they do not overlap with the public interest. It is however accepted by the respondent that matters which may rightly be described as private interests may still be considered as part of the public interest test insofar as they attract a broader public interest. It is the broader public interest aspect of those matters which the tribunal should consider when applying the test. For instance, the public interest in the rehabilitation of offenders may be a factor relevant to the public interest. There may also be a public interest in persons generally being engaged in work for which they possess appropriate skills and experience, but an applicant’s own interest in obtaining particular employment is not a relevant factor for the public interest.

  2. The respondent cites of Victorian Supreme Court decision of ZZ v Secretary, Department of Justice [2013] VSC 267, widely cited by this tribunal (for instance in DVV v Children's Guardian [2020] NSWCATAD 237 at [91]) where the Court said 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. Those were decisions under the Working with Children Act. Decisions of the tribunal under the Transport (Compliance and Miscellaneous) Acthave adopted the same approach in relation to the application of the public interest test. This accords with the statement of Barwick CJ in Forbes that there is a ‘public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit’ and ‘[i]t is in the public interest that a man should be able to exercise his capacity to work’.

[Citations omitted]

  1. The applicant submits, that it is in the public interest for the applicant to be able to have a working with children check clearance having regard to the passage of time since the alleged offending and the lack of any evidence of misconduct since this time, the applicant’s employment history and the importance of his role in providing a service to schools and hospitals and in promoting the skills of workers by training and supervising apprentices. It is also submitted there is a public interest in the applicant being involved in the coaching of sporting teams and his engagement with the local sporting club.

  2. The respondent submits that when considering the public interest, the primary consideration should be the safety welfare and well-being of children. We accept this proposition. However, having regard to the fact that we have found that there is no risk to the safety of children and we are not satisfied that the applicant has engaged in an ongoing course of conduct that would amount to domestic abuse, we are satisfied that there is strong evidence it is in the public interest for the applicant to be able to have a working with children check clearance. We therefore find that the applicant satisfies the public interest test.

Conclusion and orders

  1. For the reasons set out above, we are satisfied that the decision of the respondent dated 3 July 2024 should be set aside and substituted with a decision that the applicant’s working with children check clearance be reinstated.

  2. In this case, the applicant’s working with children check clearance would have expired within weeks of the hearing. This would mean that the applicant would have to again undertake the assessment process for obtaining a clearance. Having regard to the fact that this matter has now been the subject of extensive review, the tribunal invited the parties to consider how this issue may best be resolved for the future. The parties therefore agreed that the tribunal should note the following notation, order (1) being an order in the terms set out above:

The Tribunal notes and the parties agree that based on order (1), the Applicant will apply for a new working with children check clearance and the Respondent will grant a working with children check clearance noting the Tribunal’s finding in making Order (1) that the Applicant is not presently a risk to children.

  1. The Tribunal therefore makes the following order:

  1. The decision of the respondent dated 3 July 2024 be set aside and substituted with a decision that the applicant’s working with children check clearance be reinstated.

  2. The Tribunal notes and the parties agree that based on order (1), the Applicant will apply for a new working with children check clearance and the Respondent will grant a working with children check clearance noting the Tribunal’s finding in making Order (1) that the Applicant is not presently a risk to children.

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: 23 July 2025

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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BKE v Office of the Children's Guardian [2015] NSWSC 523
CXZ v Children's Guardian [2020] NSWCA 338
DAI v Children's Guardian [2017] NSWCATAD 308