GNS v Children's Guardian

[2025] NSWCATAD 153

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GNS v Children’s Guardian [2025] NSWCATAD 153

Hearing dates:

6 March 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
R Royer, General Member

Decision:

The decision of the Children’s Guardian on 12 July 2024 to refuse the Applicant’s Working with Children Check Clearance is set aside.

Catchwords:

ADMINISTRATIVE LAW - working with children check clearance – assessment of risk – likelihood of any repetition of the conduct

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

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

Cases Cited:

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

Commissioner for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

CXZ v Children’s Guardian [2020] NSWCA 338

ZZ v Secretary to the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

GNS (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Taylor and Whitty Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00287793

Publication restriction:

1. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

2. It is noted that 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

Background

1. On 12 July 2024 the applicant was issued with a notice of a final decision refusing a working with children check (WWCC clearance) under s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (Act) on the basis of her conduct as a foster parent to two children from 2015 to 2021. The applicant had an interim bar placed on her WWCC clearance since 23 July 2021.

2. The respondent found through its investigation that the applicant was unable to manage the children’s serious risk talking behaviours which resulted in physical and psychological harm and the children were removed in 2021.

3. The applicant claimed that while she and her husband provided a safe and loving home for the two children, there were a number of risky behaviours that stemmed from the behavioural disability of the older child (Child A) towards himself and the younger child (Child B). The applicant admitted that she made mistakes while the children were in her care and in regard to interactions with the foster organisation. She sought a WWCC clearance so that she can work with children in an educational role as well as volunteering in her church and participating in her child’s school activities.

4. On 6 August 2024 the applicant applied pursuant to section 27(1) of the Civil and Administrative Tribunal Act 2013 (NSW) for administrative review of the decision by the Children's Guardian to refuse to grant the Clearance.

5. For the reasons that follow, we are not satisfied that the applicant poses a risk to the safety of children.

Legislative Scheme

6. The object of the Act, set out in s 3 is to protect children. Section 4 of the Act states that ‘the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration’.

7. While the protection of children is the paramount consideration in the operation of the Act, the other key considerations flowing from the operation of the Act are the rights of persons to work and participate in community and society.

8. The Act sets out a scheme to protect children by requiring persons who engage in child-related work to obtain a WWCC clearance.

9. Section 15(2) of the Act provides that the Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, to determine whether the applicant poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant is subject to an assessment requirement.

10. Risk to the safety of children is defined in s 5B of the Act to be ‘a real and appreciable risk to the safety of children’. In determining whether there is a risk to the safety of children, the Tribunal must consider the matters set out in s 30(1)(a) to (k) and s 30 (1A)(a) and (b) of the Act.

11. Section 63 of the Administrative Decisions Review Act 1997 provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

Consideration of matters in s 30 of the Child Protection (Working with Children) Act

12. In determining whether a person poses a risk to children the Tribunal must consider the matters set out in s 30(1)(a) to (k) of the Act.

13. We make specific reference to ss 30(1)(a), (h), (i) and (j) as they are most relevant in this application, however we have considered each of the matters in s 30 separately and in totality.

30(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.

14. There are no offences with respect to the applicant.

The matters identified that caused a refusal of a clearance

15. The matters that caused a refusal of a clearance were broadly stated as conduct found by two external parenting capacity assessments that deemed that the children were unsafe in her care. The Department of Communities and Justice (DCJ) substantiated that the children were unsafe in her care the foster care placement ended in 2021.

16. Specifically, the respondent concluded that the applicant was unable to manage the children’s serious risk taking behaviours while in her care and that she did not adequately engage with the Out of Home Care agency, Wesley Dalmar and requested ongoing support to assist with the children which raised concerns about her capacity to care for the children. Even when additional care was provided the applicant did not engage. The respondent concluded that the children experienced physical and psychological harm and there was insufficient supervision provided by the applicant.

17. The respondent submitted that some of the allegations were considered and substantiated by Department of Community Justice. The allegation of smacking the children was not substantiated by Kids Connect Psychology in February 2021 and the Australian Childhood Foundation in April 2021.

18. The first allegation is that in 2017 the applicant threw a plastic plate which hit Child A, who was aged 5 at the time which caused a small graze under his eye. The applicant admitted that she caused a plastic plate to hit Child A in the face but stated that she did not throw it and did not intend to hurt Child A.

19. The second allegation is that in 2021, Child B attended school with a mark on his neck, a rope burn, as a result of Child A putting a rope around his neck. The respondent submitted that the applicant failed to appropriately supervise the children in light of their ages and known behaviours and failed to seek medical assistance for Child B’s injury.

20. The respondent alleges that despite there being no finding by any bodies involved with the family and contradictory statements made by the children, the Tribunal ought to find that the applicant smacked the children, whipped the children with a horse whip, gave a Chinese burn to Child A, made the children walk on bindis and was a risk to Child B in January 2021 by pulling out his tooth. The applicant denied these allegations.

21. The applicant and her husband have a biological daughter who was a child during the fostering period and was 17 years of age in 2024. There are no allegations that the applicant’s conduct towards her daughter is of any concern to the respondent.

22. In March 2013 the applicant and her husband commenced to provide foster care for Child A, who is a boy born in June 2012. In September 2015, the applicant and her husband also commenced to provide foster care for Child B, who is a boy born in August 2014. During the foster care the children were of young ages and had high care needs. During 2019 to 2021 Child A was about 8-9 years old and Child B was about 6-7 years old.

23. In late 2016 to early 2017 issues with Child A’s behaviour were identified. The behaviours included defiance and conduct that would cause harm to Child B through rough play. Child A was diagnosed with neo-natal abstinence syndrome causing Child A to suffer from headaches and nervous system behavioural responses. Child A also began to develop developmental delay and associated difficulty in learning age appropriate self-regulation skills.

24. The applicant does not dispute that in October 2017 while making breakfast she caused a plastic plate to hit Child A’s face. She admitted that it was caused because Child A was not engaging in the morning routine, she said that “he was having a meltdown”, that he was spinning in the kitchen that she tried to touch him, to redirect his behaviour, that his behaviour was escalating. She said that “the plate was released from her hand and the plate hit him”. She said that she went straight over to him, comforted him, apologised. She gave him a hug and put some paw paw ointment on the graze on his face. She spoke to the teacher when she took him to school and discussed ideas about changing the morning routine. The next month, the case manager found an occupational therapist to work with Child A.

25. In 2021 Child B had a “burn mark” on his neck. Child A was interviewed on 22 March 2021. Child A denied that he caused the graze to Child B’s neck. Child A explained that they were playing reindeers, and that Child B wanted to have a rope around his neck, which they found underneath the house. Child A stated that the applicant was inside the house and dad was at work. Child A stated that they never got smacked and his punishment was writing in his room or doing the dishes. He stated that he felt safe and that he was not scared or sad and did not think that Child B was either. He stated that if he ever felt unsafe or sad he would speak to his mum or dad.

26. Child B reported that Child A put the rope around his neck and was choking him.

27. It is not in dispute that the boys both had complex behavioural needs, and the applicant did not consider that she could adequately supervise the children. She sought home support from 2019.

28. There were a number of allegations made by the children against the applicant and her husband of physical harm while they were in foster care including smacking the children, hitting child A with a plastic plate, pulling out child B’s tooth, making the children walk on bindis, whipping with a horse whip and giving child A a Chinese burn.

29. The applicant admitted that:

1. Child A ran away from home,

2. Child A played with the gas top and stove and set paper and candles on fire,

3. the children did run across the road to a park unsupervised;

4. Child A locked the applicant out of the house,

5. the children climbed up a tree to the roof,

6. Child A threatening with a knife and

7. Child A caused child B a mark on his neck by a rope.

30. The applicant’s evidence was that these were young boys that were very physical and some things they did such as climbing and playing pranks were unremarkable.

31. The applicant also stated that she tried but could not adequately manage the behavioural issues of Child A in particular and that when she raised these concerns with the foster agency, the support was not provided, and she was assessed to be incompetent.

32. The applicant pointed to the Complex Carer Assessment which noted that the applicant was a strong advocate for the boys and that the alleged harm was caused not by the direct action of the applicant but rather by her perceived failure to protect the younger Child B from harm by Child A.

S 30(b)-(g) of the Act

33. The allegations are in regard to matters that occurred between 2015 to 2021. The Applicant was about 55 years old at the time. It has been about four years since those matters occurred.

34. The children were vulnerable due to their young age and Child A’s medical conditions.

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

35. The applicant does not have a criminal history. There has been no conduct of concern since early 2021.

36. Since the children were removed from foster care, the applicant has acknowledged and conceded that her own behaviour and lack of communication skills contributed to the breakdown of the relationship between her and the carer agency.

37. The applicant has also acknowledged that her reactions to the children were not optimum and accepts that she was ill equipped to deal with the challenging behaviours displayed by Child A.

38. The applicant has undertaken numerous personal and professional development programs since the children were removed. These include:

1. Course to identify and report children and young people at risk – statement of attainment CHCPRT025 July 2024

2. One day training by Office for Safeguarding, Diocese of Parramatta on understanding safeguarding and the child safe standards, legal compliance, risk of significant harm and reportable conduct, working with adults at risk and understanding boundaries March 2023

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

39. This is the key issue in dispute between the parties. The applicant’s submission was that there was no likelihood of any repetition by the applicant of the conduct as she was not a foster parent and all of the issues of concern occurred ONLY while she was a foster parent.

40. The applicant submitted that she was aware of Child A’s increasing aggressive behaviour towards Child B and that he was a poor influence on Child B’s behaviour. The applicant consistently reported incidents of Child B being hurt by Child A to the foster authority. The applicant engaged an Occupational Therapist for Child A whom he saw regularly until the agency cancelled the approval for his treatment. The applicant admitted that the two boys had very high physical and behavioural needs and she could not adequately manage the behaviour of Child A.

41. The applicant also pointed to her previous employment in the childcare industry with no issues raised about her conduct.

42. The respondent submitted that despite the fact that the applicant completed training courses since the children were removed does not demonstrate that the applicant has changed her behaviour and while the respondent conceded that the applicant did show some insight into why the relationship with the foster care services broke down, she was obstructive and was reluctant to appropriately engage with them. The respondent submitted that the Tribunal ought to make an inference that the applicant would continue to pose a risk to children because she is not open to accept feedback, receptive of assistance and support and is likely to construe feedback as criticism. The respondent submitted that any of the allegations are serious and could be repeated but must also be considered cumulatively.

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

43. The applicant provided numerous references from persons who are friends, colleagues as well as medical practitioners. These character references generally attested that the applicant was a caring parent.

44. There is a letter from Mr and Mrs Armstrong, who were also foster parents and friends of the applicant and her husband refer to a meeting they attended on 30 March 2021 with the foster providers. They attended as support persons for the applicant and her husband. At this meeting the issue of child A causing a rope burn on Child B’s neck was discussed.

45. Mr and Mrs Armstrong were concerned that such a minor issue had caused the foster agency to consider that the applicant and her husband posed a risk to children. Mr and Mrs Armstrong stated that children sometimes inadvertently hurt each other during play and that children play with rope. They said that it is unreasonable to expect the applicant and her husband to supervise the children at all times and that children need some autonomy to play.

46. They concluded that the children have been micromanaged to report any old incident, and that this created a situation of mistrust in the family.

47. Mr and Mrs Armstrong raised concerns that there was a failure to understand that boys play can be much more physical, particularly where there are behavioural issues at play as there were in the applicant’s home. Climbing on trees and climbing on an outdoor shelter is common for boys and similar climbing opportunities exist in parks and playgrounds. They stated that their foster kids locked them out as a prank and that some risk cannot be avoided.

48. A letter from Dr Penna, GP dated 30 June 2021 stated that she had been Child A’s doctor since his placement began and that she also provided care for Child B. Dr Penna was shocked and disappointed to hear that the children were removed from the care of the applicant and her husband as she considered that they were very caring and enthusiastic in seeking help for the wellbeing of the children. Dr Penna stated that Child A had significant behavioural issues with hyperactivity, impulsivity and oppositionality, probably related to Neonatal Abstinence Syndrome.

Section 30(1A)(a)

49. Section 30(1A)(a) of the Act states that a Tribunal may not grant a WWCC clearance unless it 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

50. A reasonable person is a fair minded observer with knowledge of the material objective facts.

51. We consider that the reference to a “child” in s 30(1A)(a) refers to a child with usual behaviours for its age. No submission was made that the reference to a “child” includes a child with serious risk taking behaviours.

Section 30(1A)(b) it is in the public interest to make the order.

52. Section 30(1A)(b) of the Act states that a Tribunal may not grant a WWCC clearance unless it is satisfied that it is in the public interest to make the order.

53. The legislative scheme in Victoria is in similar terms and decisions made as to the meaning of the terms in s 30(1A) are relevant. In ZZ v Secretary, Department of Justice [2013] VSC 267, Bell J made the following observations regarding “public interest” in regard to a provision similar to that of section 30(1A):

1. The notion of public interest if broad [206];

2. Central or main consideration is the need to protect children [202];

3. The right of a person to engage in work in their chosen field is relevant [203]-[204], see also Commissioner for Children and Young People v V [2002] NSWSC 949; (2003) 56 NSWLR 476, 483 [38];

4. The right of a person to engage in community affairs is relevant [199];

5. Rehabilitating offenders is relevant and important [202]; and

6. Once the Tribunal is satisfied that a person does not pose a real and appreciable risk to children based on factors in s 30, it would be unusual if the decision is reversed based on ‘public interest’ [209].

Assessment of Risk

54. The issue in dispute is whether the applicant poses a risk to the safety of children. As Young JA observed in Commission for Children and Young People v V at [17], all adults pose the possibility of risk to the safety of a child. The issue is assessing that risk:

Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact.

55. In carrying out its fact finding function, the Tribunal should take into account the circumstances surrounding the particular incident and the course of conduct; CXZ v Children’s Guardian [2020] NSWCA 338 [57] (Simpson AJA); BKE v Office of the Children’s Guardian [2015] NSWSC 523 [33] (Beech-Jones J).

56. This is not a case where there are significant disputed allegations. The respondent suggested that the Tribunal can go on to make findings, contrary to those made by the foster agencies that the applicant was physically violent to the children. The applicant denied the allegations that she smacked or hit the children. The children made as many statements denying the allegations as making them. We accept the applicant’s evidence and consider the allegations to be without foundation.

57. We accept that the applicant was unable to adequately supervise and look after the two foster children in her care. We accept that the initial assessment of the applicant’s suitability to be approved as a foster carer determined that she and her husband were not suitable to have children with high physical or behavioural care needs, yet both boys were in this category. We also accept that the relationship between the applicant and her husband and the Out of Home Care Agency had broken down and that this contributed to the support provided to the children and the family and the manner in which interactions occurred. We accept that the applicant was not aware of one of the assessments and had little input into other reports prepared by or organised by Out of Home Care Agency.

58. The applicant did state that she made mistakes while the children were in her care, but she did not accept responsibility for the failure of the foster care situation and the impact on the children. She placed blame on the Out of Home Care Agency for failing to provide her with adequate assistance to care for the escalating dangerous behaviour of Child A. In light of the fact that she indicated to the foster organisation that her home was not suitable to have children with high physical or behavioural care needs, we have some sympathy for her evidence.

59. The applicant readily admitted that Child A was regularly involved in risky behaviour such as trying to access a knife, using a knife to break things, lighting fires, stealing money from his sister and running away to the shop to buy lollies. Her evidence during the interviews with Wesley Mission she was following directions agreed with previous case providers and seeking additional assistance. She explained the strategies the family used to calm Child A and give him structure and control over his environment.

60. The respondent’s decision to refuse the WWCC clearance concluded that “in the absence of demonstrated insight or substantial changes since her conduct of concern, there is a likelihood of repetition.”

61. It is clear that the respondent approached this case on the basis of its concern that the applicant would in the future be unable to manage children’s serious risk taking behaviours and cause the children physical and psychological harm.

62. The underlying assumptions in this assessment are that the applicant would be managing children in the manner she was when she was a foster parent and secondly that the children would have similar behavioural issues as Child A and Child B.

63. Both these assumptions are faulty for the purposes of risk assessment. First, in terms of assessing future risk, the Tribunal must consider whether the applicant poses a risk to the safety of children and not whether if the Clearance is granted the applicant may go on to make any further application to be a foster carer. These matters are not within the Tribunal’s jurisdiction.

64. Secondly, people who have a WWCC check are not expected to be able to manage children with violent behaviours without some training and support. If the question the Tribunal asked itself was whether the applicant was able to adequately provide supervision to children with violent and dangerous behaviours, it would be an unfair bar to the applicant.

65. We consider that the applicant’s inability to adequately supervise Child A and Child B does not lead to a decision that if a WWCC check is granted, she would pose a real and appreciable risk to the safety of children.

66. We reach this conclusion on the basis of the applicant’s conduct with children prior to the care of the children in foster care as well as during foster care.

67. We consider that the statement the applicant completed in 2011 when she and her husband applied to the Department of Community Services (DCS) to become foster parents as instructive as it provides an objective assessment of the applicant’s knowledge and understanding of child safety. An excerpt from Initiating Carer Assessment is attached to the applicant’s affidavit.

68. It is the rationale made by DCS which are important. Performance criteria 21 is “Can identify their personal responses which can impact on appropriate behaviour”. The applicant met the requirement for this criteria and the rationale was:

… [the applicant’s name] parenting experiences were limited, and therefore their responses to parenting and behaviour management are still being tried. They both feel that they are not equipped with the skills to care for a child with high needs through disability or through extremely challenging behaviours, such as ADHD.

However they are open to learning new techniques, evident through reading materials in the home, trialling different strategies with [x] such as the happy/sad face chart, withdrawing favourite things.

They are not aggressive or impatient parents, and feel that they are able to present a unified front with the child in order to avoid further problems by a child winning a “divide and conquer” game plan.

69. Performance criteria 22 “Can demonstrate a range of strategies to manage challenging behaviour” The applicant met the requirement for this criteria and the rationale was:

… [the name of the applicant]’s background in working in child care centres has provided her with some valuable tools around child discipline without the use of physical punishment. She was able to identify time out, trying simple methods/strategies to address these issues for example getting the child to identify how their feelings such as the faces on the wall, and making clear plans to change the situation as doing a silly dance together or other distractions.

They are aware of strategies as time out, limiting social contact e.g. if kids are fighting separating them, giving permission to express feelings in a positive way, ignoring negative behaviours and rewarding positive behaviours when unprompted acts of kindness.

They are aware of, and willing to access counselling for the child and to attend parenting classes to improve their skills.

70. We take from this material that the applicant has a background working in childcare. There were no issues raised about her being a risk to the safety of children. Secondly that the applicant was considered to be suitable to look after children without extremely challenging behaviours.

71. Like the respondent in its decision to refuse a WWCC we accept that the applicant has no “demonstrated criminogenic risk factors” and we also give some weight to the applicant’s character references as they were aware of the removal of the children from the applicant’s care, although may not have been aware of the specific allegations. We accept that the applicant was a caring parent to Child A and Child B and did her best to manage their serious risk taking behaviour. We consider that the applicant has demonstrated insight into her past actions.

72. Despite the applicant’s desire and commitment to protect the children, she was not able to adequately manage their serious risk taking behaviour. The management of the children’s behaviour occurred in a highly specific context of fostering children with serious risk taking behaviours. As we have explained above we do not consider this finding to lead us to the conclusion that the applicant would pose a risk to children if she was granted a WWCC clearance.

73. Having considered all of the matters in s30(1), we have determined that the applicant does not pose a risk to the safety of children.

74. We now turn to s 30(1A)(a) of the Act. In the Tribunal’s view a reasonable person would know the following matters:

1. The applicant worked with children in early childhood without any issues;

2. The applicant has a child, and no issues of concern have ever been raised about her conduct;

3. The applicant with her husband commenced to foster Child A in 2013. In late 2016 to early 2017 it was identified that the child had serious behavioural issues. The behaviours escalated and became more violent from 2020.

4. In 2015 there was an incident where the applicant lost her temper with Child A and threw a plastic plate which made contact with the child’s face and left a mark on his face. She apologised and reported the incident to the teacher;

5. In late 2015 the applicant and her husband commenced to foster a second child. Child A engaged in rough play with the younger child B and encouraged Child B to engage in risky and dangerous behaviour.

6. In 2021 Child A caused Child B a “burn mark” on his neck, caused by a rope, the incident happened when the children were playing at home (outside the house) while the applicant was inside the house;

7. The applicant had difficulties controlling Child A and Child B mimicked Child A’s dangerous behaviours;

8. During the time the children were in the applicant’s care they did engage in risky behaviours;

9. During the time the children were in the applicant’s care there were disagreements and disputes between the applicant and her husband and the fostering agencies as to the best care for the children;

10. The fostering agencies found that the applicant and her husband could not provide a safe environment for the children, and they were removed in 2021.

11. Two external parenting capacity assessments concluded that the children were unsafe in the applicant’s care as she was unable to manage their serious risk taking behaviours and that they experienced physical and psychological harm.

75. We consider that in those circumstances, a reasonable person would understand that there have been no concerns about the applicant’s capacity to manage children but that she was not equipped to manage children with serious risk taking behaviours.

76. We consider that a reasonable person would allow their child to have direct contact with the applicant while she was engaged in child-related work.

77. As to the public interest, in balancing the competing interest, the protection of children is not undermined by the applicant’s desire to work with children. We find that it is in the public interest to make the order setting aside the respondent’s decision to refuse a WWCC clearance.

Order

78. The Tribunal makes the following Order:

1. The decision of the Children’s Guardian on 12 July 2024 to refuse the Applicant’s Working with Children Check Clearance is set aside.

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

Registrar

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: 27 June 2025