GQH v Children's Guardian

[2025] NSWCATAD 236

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GQH v Children’s Guardian [2025] NSWCATAD 236

Hearing dates:

20 May 2025

Date of orders:

23 September 2025

Decision date:

23 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
M Maher, General Member

Decision:

The decision of the Children’s Guardian dated 30 August 2024 to refuse to grant the applicant’s working with children check clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW — Child protection — Risk assessment triggered by presence of records under cl 1(2)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 —Tribunal to assess whether applicant poses a risk to the safety of children.

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Domestic and Personal Violence) Act 2007

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

Legislation Cited:

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

BFX v Children’s Guardian [2014] NSWCATAD 115

BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179

BHY v Children’s Guardian [2015] NSWCATAD 91

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

BKV v Children’s Guardian [2015] NSWATAD 65

BQK v Children’s Guardian [2015] NSWCATAD 265

Briginshaw v Briginshaw (1938) 60 CLR 336

BZU v Children’s Guardian [2016] NSWCATAD 3

CHB v Children’s Guardian [2016] NSWCATAD 214

CKU v Children’s Guardian [2017] NSWCATAD 36

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

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

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

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

CXZ v Children’s Guardian [2020] NSWCA 338

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

DAI v Children’s Guardian [2017] NSWCATAD 308

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

DYH v Public Guardian [2021] NSWCATAD 136

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

McDonald v Guardianship and Administration Board [1993] VR 521

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

Smith v Commissioner of Police [2014] NSWCATAD 184

Tilley v Children’s Guardian [2017] NSWCA 174

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

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

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

Cases Cited:

ADMINISTRATIVE LAW — Child protection — Risk assessment triggered by presence of records under cl 1(2)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 —Tribunal to assess whether applicant poses a risk to the safety of children.

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GQH (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Sukkar, Counsel (Applicant)
L Geddes, Counsel (Respondent)

Solicitors:
Crimcorp Defence Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/000339438

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order was made on 10 October 2024 under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

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

REASONS FOR DECISION

Introduction and overview

Introduction

1. The applicant sought administrative review under s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) of the decision of the Children’s Guardian made on 30 August 2024 to refuse to grant a working with children check clearance to him on the grounds that he poses a risk to the safety of children (“the Refusal Decision”).

Overview

2. The applicant had applied for, and been granted, a clearance on 17 April 2021. He had nominated “Clubs and Other Bodies” as the relevant child related sector, in connection with his volunteer rugby league coaching activities with children, including his own son, at their local rugby league club (“the Club”).

3. On 21 September 2022, the applicant was informed that, due to the presence of new records concerning proceedings pending against him, the Children’s Guardian would be conducting a risk assessment. In the meantime, he was subject to an Interim Bar and was required to immediately stop any paid or volunteer work which required a clearance.

4. The new records prompting the risk assessment were that the applicant had been charged with intentionally choking a person without consent, intimidation with intent to cause fear and physical harm, and common assault on 19 and 20 August 2022. The victim was the applicant’s daughter, aged 10 at the time.

5. The charge of intentionally choking a person without consent was withdrawn and the applicant pleaded guilty to intimidation and common assault. He was convicted in the Local Court, with two Community Correction Orders (“CCOs”) imposed. He successfully appealed his sentence in the District Court where he received a twelve-month CCO which expired on 4 July 2024 without any breaches. An Apprehended Domestic Violence Order (“ADVO”) was made to protect the victim and it expired on 29 August 2024, also without any breaches.

6. Initially, the risk assessment recommended that a clearance be granted. However, this was overturned when considered at an internal case review meeting within the office of the Children’s Guardian. It was determined that the clearance was not supported having regard to the seriousness of the offence and the significant impact that the applicant’s behaviour would have had on the child, as well as the recency of the offence, the CCO and the ADVO. The Children’s Guardian was satisfied that the applicant poses a risk to the safety of children and that a reasonable person with knowledge of all of the relevant facts would not allow him to have unsupervised one on one contact with their child.

7. After completing its risk assessment, the Children’s Guardian advised the applicant on 30 August 2024 that his application for clearance was refused and he was barred from working with children for five years in accordance with the operation of the legislation.

8. The applicant filed his application for administrative review on 12 September 2024, seeking orders that the Tribunal set aside the Refusal Decision and direct the Children’s Guardian to re-issue him with a clearance. He submitted that he does not pose a risk to the safety of children, arguing that the offence was an isolated incident and that he had shown significant insight into his behaviour. His treating Psychologist who reported that the applicant had voluntarily engaged with therapy concluded that the applicant was “well and truly capable of working with children”.

9. The Children’s Guardian opposed the application and sought an order that the Tribunal affirms the Refusal Decision and that the application be dismissed.

10. On the evidence before us, we have decided that the correct and preferable decision is to affirm the Refusal Decision. Our reasons follow.

Non-publication order

11. Due to the sensitive nature of these proceedings and to protect against the identity of any alleged victim being disclosed, an order was made on 10 October 2024 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) that the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings (except for expert witnesses and officers of government agencies) is prohibited. The applicant’s name has been anonymised. To further protect against the identity of any alleged victim being disclosed, these Reasons do not identify geographic locations.

Material and evidence before the Tribunal

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

1. Affidavit of the applicant sworn on 19 December 2024 (marked for identification as A1);

2. Affidavit of BN sworn on 12 December 2024 (marked for identification as A2);

3. Outline of submissions filed on 28 March 2025 (not marked);

4. Supplementary written submissions dated 19 May 2025 (not marked).

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

1. First bundle of evidence, filed on 28 October 2024 (marked for identification as RB-1);

2. Further bundle of evidence and evidence in reply, filed on 14 February 2025 (marked for identification as RB-2);

3. Further bundle of evidence, filed on 20 February 2025 (marked for identification as RB-3);

4. Further evidence comprising video interviews, filed on 20 March 2025 (marked for identification as RB-4);

5. Further evidence comprising notes made by Mr Sam Albassit, the applicant’s treating Psychologist, filed on 20 March 2025 (marked for identification as RB-5);

6. Written submissions dated 15 April 2025 (not marked).

Oral evidence

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

15. BN also gave oral evidence and was cross-examined during the hearing.

16. Mr Albassit, Psychologist, was cross-examined during the hearing on his reports dated 4 July 2023 and 6 August 2024.

Note regarding admission of Consultant Psychiatrist’s clinical letter

17. A clinical letter dated 8 August 2023 from a Consultant Psychiatrist who saw the applicant at the request of his treating general practitioner was included in the s 58 bundle of documents relied upon by the Children’s Guardian. The Consultant Psychiatrist had been required to be available for cross-examination, but had declined to attend the hearing. It was submitted on behalf of the respondent that no great significance ought be attached to the clinical letter other than that it corroborates other documents. The applicant made no objection to this proposition and the Tribunal accepted the inclusion of the report in the s 58 bundle of documents on that basis.

Issue for the Tribunal’s determination

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

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

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

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

21. The Tribunal has regard to the material before it, including material that may not have been before the Children’s Guardian, and the applicable law: YG at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children’s Guardian [2015] NSWCATAD 91 at [14]. This includes the oral evidence given by the applicant during the hearing, as well as the evidence of a witness (BN) and Mr Albassit.

What orders the Tribunal can make

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

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

23. In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof.

Full disclosure of relevant matters is required

24. However, the applicant has a statutory obligation under s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application.

Background leading to the application for administrative review

25. The applicant was 37 years of age at the date of the hearing. He married his now ex-wife in September 2010, and they have three young children. The applicant separated from his ex-wife in June 2022 and they were divorced in May 2024. Their eldest daughter is now aged 13, their second daughter is aged 11 (soon to be 12) and their son is 9 (soon to be 10). The applicant and his wife share the co-parenting of their children who live with their mother and stay with their father each weekend, from 5pm on Friday evening to 5pm on Saturday.

26. The applicant currently lives by himself. He has two sisters and two brothers, and his parents are still alive and live together.

27. He has a background in finance and works in logistics, and has a stable employment history.

28. In 2020, the applicant experienced difficulty in his life, associated with an investment of a considerable amount of superannuation money with a friend who owned businesses and subsequently sold them without the applicant’s knowledge and disappeared. The applicant tried, unsuccessfully, to recover his losses which were intended to provide for his future and that of his children. At that point in time, he experienced emotional and financial distress. His job was also under threat during the Covid-19 pandemic.

29. When his son started playing rugby in 2021, the applicant enrolled to be a volunteer in activities with the Club. After being granted a clearance in April 2021, he held positions of a trainer, team manager and coach with the Club.

30. As noted above, in June 2022, the applicant separated from his wife and they began their co-parenting arrangements.

31. On Friday, 19 August 2022, the applicant picked up his three children from their mother’s home and drove them to his home. The allegations that became the subject of charges and ultimately a conviction against the applicant are described in more detail under the heading “Consideration” in these Reasons. Briefly, it was alleged that at around 7pm on Friday evening, the applicant disciplined his elder daughter by putting socks in her mouth and taping her mouth shut whilst he was on top of her stomach area and she was unable to move and unable to breathe (“the first assault”). The victim managed to rip the tape off and spit out the socks, and kicked her father. The following day, Saturday, at around 9am, the victim was kneeling next to a small table when the applicant pinched her left shoulder for around 9 – 10 seconds and then pushed her head down which caused her chin to hit the table, causing her pain and bruising (“the second assault”). The applicant returned the children to their mother during the evening of 20 August 2022 where the victim disclosed to her aunt and grandmother what had occurred.

32. One week later, on 26 August 2022, the victim’s aunt and grandmother reported the incidents to police and provided written statements.

33. On Sunday, 28 August 2022, the police obtained a version of events from the victim’s mother who stated she did not see any injuries on her daughter’s chin on the day of the alleged second assault and she did not see any bruising develop on the days afterwards.

34. On 29 August 2022, the applicant attended the police station where he was arrested and cautioned. He declined to be interviewed.

35. On or around 29 August 2022, an ADVO was issued against the applicant, for the protection of his eldest daughter, expiring on 29 August 2024.

36. On 21 September 2022, the Children’s Guardian emailed the applicant, advising that as part of their continuous checking of police and workplace information, new records relevant to the safety of children had been identified, prompting further assessment of his clearance. An Interim Bar was imposed under s 17(1) of the Act pending the outcome of the respondent’s risk assessment. The applicant was invited to provide information to assist in the assessment.

37. The new records prompting the risk assessment were noted to be that the applicant had been charged with three offences: (1) Common assault (dv) contrary to s 61 of the Crimes Act 1900 (NSW); (2) Stalk/intimidate intend fear physical etc harm (domestic) contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); (3) Intentionally choke etc person without consent (dv) contrary to s 37(1a) of the Crimes Act 1900 (NSW).

38. By a Family Court of Australia (“FCA”) Order dated 18 October 2022, the applicant was restrained from discussing the criminal proceedings against him with or within the presence or hearing of his children. Under the same Order, the FCA varied the conditions of the ADVO to permit the applicant to have face to face contact with his daughter on the condition that his other two children were also present. We note that these restraints were discharged under an FCA Consent Order dated 11 December 2024.

39. On 20 February 2023, the applicant submitted a reference from his employer, a professional reference from his mental health counsellor, as well as his Curriculum Vitae. On 8 March 2023, the applicant submitted a reference from the secretary of the Club where he had been a volunteer coach. On 4 April 2023, he submitted a letter of apology (dated 23 March 2023) which appears to have been intended to address the Local Court Magistrate, and another reference from his employer.

40. A sentencing assessment report prepared for the Local Court proceedings on 31 May 2023 recommended that the applicant be referred to a psychologist for assessment and ongoing management of his underlying mental health, referral to an appropriate parenting course, and contact with Community Corrections to engage in cognitive behaviour therapy to help him manage stressful situations.

41. In proceedings before the Local Court, the charge of intentionally choking a person without consent was withdrawn. The plaintiff pleaded guilty to common assault and stalk/intimidate intend fear physical etc harm (domestic) and was convicted on 31 May 2023.

42. The applicant successfully appealed the severity of his sentence in the District Court which set aside two CCOs imposed by the Local Court. His sentence was reduced to a CCO for 12 months from 5 July 2023, expiring on 4 July 2024.

43. As a condition of the CCO imposed by the District Court, the applicant was required to complete the treatment plan attached to the report dated 4 July 2023 prepared by Mr Albassit.

44. On 6 July 2023, the day after the District Court severity appeal, the applicant submitted three documents to the Children’s Guardian. Those documents comprised a copy of Mr Albassit’s report dated 4 July 2023, a copy of the CCO issued by the District Court and a copy of a Certificate of Completion (issued by an entity known as “impulsivity”) of online psychoeducational courses he had undertaken on 6 July 2023 in “Impulsive, Destructive and Explosive Anger Management” and “Psychology of self control. Core impulsivity crash course”.

25. On 29 May 2024, the applicant provided a copy of the FLA Consent Order dated 18 October 2022 which provided that he could only spend time with his eldest daughter in the presence of the other two children. He also provided a document from the National Rugby League (“NRL”) National Safety Education Scheme certifying him as a qualified Leaguesafe Trainer, a document from Mental Health First Aid Australia accrediting him as a Standard Mental Health First Aider, and a document from the NRL certifying him as having completed “Child Safety – Patrons of the Game”.

26. Upon having his application for clearance refused, the applicant immediately advised the Club and withdrew from volunteer activities. His affidavit evidence, also reinforced by his oral testimony, is that the refusal of his application for clearance impacted him greatly as he is heavily involved in his children’s extracurricular activities. His evidence is also that his passion is for coaching children and he is disappointed that he cannot contribute to the community through those volunteer activities.

27. On 17 July 2024, in a telephone call, a Risk Assessment Officer advised the applicant that the Children’s Guardian was proposing to refuse his application for a clearance. The applicant was given 15 days to provide any other information he wished to be considered.

28. On 7 August 2024, the applicant’s legal representative in these proceedings provided a letter in support of his application for clearance.

29. On 30 August 2024, the Children’s Guardian notified the applicant that his application for clearance had been refused on the grounds that his criminal offences for which he was convicted are serious, violent, child related, and relatively recent. The Children’s Guardian also noted that the FLC order made on 18 October 2022 regarding contact with his daughter on the condition that the two other siblings were also present, remained a concern. In considering the reasonable person test, the Children’s Guardian was not satisfied a reasonable person with knowledge of the seriousness and impact on the child of the applicant’s behaviour and knowing that the applicant cannot have unsupervised one on one contact with his daughter would allow their child to have direct unsupervised contact with the applicant while engaged in child related work.

30. On 12 September 2024, the applicant filed his application for administrative review seeking orders that the Tribunal set aside the Refusal Decision and direct the Children’s Guardian to re-issue him with a clearance.

Applicable legislation and legal principles

Protective jurisdiction of the Act

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

3 Object of Act

The object of this Act is to protect children—

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

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

Paramount consideration

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

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

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

The Tribunal’s jurisdiction is protective, and not punitive

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

54. The protective jurisdiction of the Act was emphasised in CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ) per Simpson AJA at [58]:

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

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

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

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

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

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

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

Child-related work requires a WWCC clearance

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

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

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

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

Risk assessment under s 15(4) of the Act

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

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

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

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

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

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

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The approach to fact finding and the assessment of risk

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

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

76. The approach to fact finding as explained in BKE at [33] has been approved by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[45] and in CXZ per Simpson AJA at [57]:

“The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

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

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

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

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

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

Civil standard of proof

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

Consideration

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

81. In determining whether the applicant poses a risk to the safety of children, we are obliged to consider the evidence under s 30(1)(a)-(k) of the Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar: s 30(1)(a) of the Act

82. We extract from the Police Facts Sheet a description of the incidents on the evening of Friday, 20 August 2022 and the following day:

“At about 7.00pm on Friday the 19^th of August 2022 … victim was playing within the living room when the accused as told the victim she was being silly and told her to go to the bedroom and to put her hands on her head and stay quiet.

The accused told her if she doesn’t do this that he would put socks in the victim’s mouth and tape up her mouth.

The accused has then grabbed 3 or 4 pairs of “BONDS” branded socks which are black in colour with the “BONDS” logo being in white and put them inside the victim’s mouth. The accused has then used clear tape which is approximately 25mm – 50mm in width and taped the socks over her mouth with the tape covering both sides of her face.

At the time the victim was laying upon the bed within the bedroom and the accused was on top of the victim and she was unable to move and also unable to breathe.

The victim then spat out the socks and removed the tape from her face.

The victim began crying and the accused told the victim she could come out once she says sorry.

The victim then exited the bedroom and said to the accused “I’m sorry” and returned to her siblings within the living room.

About 9.00am on Saturday the 20^th of August 2022 the victim was within the living room with her sister [name] and brother [name].

The victim was playing games with her sister and brother where the victim was being mean to her sister [name]. [The sister] then left the living room and shortly afterwards the accused entered the living room.

The victim was kneeling next to a small child’s table, the accused has then pinched the left shoulder of the victim for approximately 5-10 seconds and then pushed the victim’s head down which caused the victim’s chin to hit the table. The victim stated that this caused a bruise to her chin the day afterwards.”

83. Reports provided by the Department of Communities and Justice (“DCJ”) noted additional information that was not contained in the Police Facts Sheet. In particular, DCJ’s notes record that the applicant had spat in the direction of the victim (it would appear that this was a reference to the first assault) and had threatened the children by saying “Don’t you dare tell anybody.”

84. Additionally, the DCJ reports noted an allegation that on one occasion when their father was living with them, he had shut a draw on the victim’s foot on purpose as a form of discipline and her foot dripped blood.

85. Another allegation is that the children said they were unhappy going to stay with their father because he is critical and punitive, especially to the eldest child. They reported that he had weighed both his daughters on the Friday evening, telling the older child that she was a “skeleton” and she needed to gain a kilo by the following weekend or he would make her drink a protein shake. In a written statement made by the children’s aunt, it was alleged that the victim told her aunt that the applicant had said he would “shove protein shakes down [her] mouth”. It is alleged he told his younger daughter that she was too fat and she needed to lose a kilo by the following weekend. The DCJ report noted that the girls were sad when talking about this and the younger girl was distressed and quite anxious, and worried about what would happen.

The victim’s account

86. During the hearing, the Tribunal listened to and observed the victim’s account of the events as recorded in her police interview six days after the offences took place. Her description of the intimidation and assaults upon her are consistent with the Police Facts Sheet, and are consistent with the reported matters in the DCJ records with the exception that the Facts Sheet and the child’s interview do not record that the accused spat in the direction of the victim. Additionally, we note that the victim described on a number of occasions how she felt during the first assault. She said she was feeling “very, very scared” and was crying a lot, and that she felt “really scared” that her father would do it again. When the accused was lying on her stomach, she said she felt “very scared”, saying she struggled to breathe and was panicking and shivering, her heart was beating fast and she was scared she would smother on the socks that were on the top of her tongue and filling her cheeks, and she said she wanted her mum.

87. With respect to the second assault the following morning, the victim said she was being silly and joking with her younger sister. She was drawing on a small table alongside her brother when her father pinched her left shoulder for around 5 – 10 seconds so that it hurt, and then put his hand on her head and pushed her head down so that her chin banged on the table. She said that it hurt badly, and there was a bruise the following day.

88. Towards the end of her recorded interview with police, the victim asked whether her dad was going to “get in trouble”.

The applicant’s evidence

89. In his submission dated 13 February 2023 to the Children’s Guardian, the applicant denied the conduct and disputed its seriousness:

“The charges are not true and this is something that has been completely blown out of proportion, I would never do anything to put my kids or any kids in jeopardy…”

90. Subsequently, in his letter of apology (23 March 2023) to the Local Court, the applicant apologised for his conduct and said that there was no “exact reason” for his behaviour, however, he was adapting to numerous changes in his life. He referred to “overstepping the boundaries” as a father when it came to reprimanding his daughter for her actions, and that he genuinely meant her no harm and was seeking to teach her how to improve her behaviour and attitude. He said that, upon reflection, he realised the consequences of his actions:

“Since then, I have self-reflected on my actions, and I am the one who has learnt the lesson regarding the consequences of my actions and aware of the mental implications this may have had on my daughter. I have continued to better myself and my relationship with my daughter building a solid path for our future.

I am very lucky not to have hurt my daughter physically nor mentally through my actions. I am also lucky that I have not damaged my relationship with all 3 of my beautiful children whom I cherish and adore. It was very embarrassing for me going through the justice system and have great regret about putting myself in that position. I promise you that it will never ever happen again in the future.”

91. On 29 May 2024, the applicant made verbal submissions during a phone call with an officer of the Children’s Guardian regarding his application for clearance. According to the respondent’s records:

“He didn’t minimise or deflect blame, and appeared to understand and accept the gravity of his behaviour. He detailed specific steps he has taken to address the behaviour, and openly reflected on how this has helped.”

92. The Sentencing Assessment Report dated 31 May 2023 records that the applicant “took responsibility for his offending and did not attempt to dispute the police facts”. The report notes that he recognised his actions as “extreme” and unacceptable.

93. When giving his oral testimony before this Tribunal, the applicant said that he felt very remorseful, stupid and embarrassed, that he had over-stepped the mark and that it should never have taken place. He acknowledged that his daughter was put in a vulnerable position. He said that he found a period of around 6 to 8 weeks when he could not see his daughter due to the ADVO, to be very difficult but he thought his relationship with his daughter is stronger today. He also said that he was fortunate that his relationship with his daughter was not impacted.

94. Under cross-examination, the applicant readily acknowledged that he had committed both the first and the second assault. When asked if he had intended to cause fear, he said that it was about fear and discipline, and showing his daughter what bullying feels like. He denied that he had intended to cause harm, and said that his intention was not to hurt her. He repeatedly said that he had no malice in his intention. When asked what he thought the difference was between doing something with malice, and doing something without malice, the applicant said it was about how “rough” the conduct was. He also acknowledged that he had initially thought the charges were blown out of proportion, but then has been fully accountable for his conduct.

Tribunal’s assessment

95. We have disregarded the allegations in DCJ’s records that the applicant spat in the applicant’s direction and shut a drawer on her foot. We find the allegations that the applicant weighed his daughters, finding fault with them, and then threatened them with consequences, are not groundless. This indicates controlling behaviour by the applicant and is conduct that intimidates young girls into thinking their bodies are flawed, and that consequences will flow unless they adjust their bodies to a perfect state. This may be harmful to their emotional and psychological well-being. We have given a small amount of weight to these allegations.

96. In light of the applicant pleading guilty to the offences, his written acknowledgment to the court and his resulting convictions, as well as his oral testimony before this Tribunal, there is no doubt that the conduct occurred. It is therefore not necessary to embark on a fact-finding exercise to evaluate the accumulated weight of the allegations and make a finding as to whether the conduct occurred.

97. However, the surrounding circumstances of the assaults as well as the applicant’s conduct itself are pertinent to our consideration of the seriousness of the offences. We are obliged to consider questions of risk that may be indicated by all of the facts: CFW at [15].

98. The applicant’s conduct was violent and frightening. It was dramatically disproportionate to the child’s behaviour that he had apparently sought to discipline. Filling her mouth with socks and taping over her mouth was dangerously risky to her physical, emotional and psychological health and wellbeing. The child could have been unable to breathe and lose consciousness, or in a worst case scenario, lose consciousness and not regain it before medical treatment became available, and lose her life. The impact upon her psyche, feeling so afraid and thinking she may swallow a sock, and wanting her mum, cannot be dismissed lightly. He certainly posed a risk to the safety of his own child, and her younger brother who witnessed both the first and the second assault. Arguably, the younger sister was impacted by the events as well, as she appears to have been made aware of them when they were disclosed to their aunt and grandmother.

99. The second assault suggests that, with only relatively minor sibling agitation that apparently caused him to be angry and physically hurt his daughter, he may have been harbouring simmering resentment towards her. Certainly, his conduct is another example of the applicant’s disproportionate response to the child’s behaviour, demonstrating anger and loss of emotional control.

100. Based on his explanation of malice in terms of how “rough” a person’s conduct is, and accepting his evidence that he held no malice towards his daughter, we are left with the understanding that the applicant’s perception is that the level of violence of his conduct was low. We find this comment disturbing for a number of reasons. First, it is difficult to reconcile his assertion that he held no malice towards the child when his physical and mental cruelty was so objectively serious that he must have intended to hurt her and harm her. He thought about what he would do, he threatened to do it, and then he carried out the threatened action. Second, at the very least, it contradicts submissions made on behalf of the applicant that his actions were extreme and went beyond the parameters of reasonable parental discipline. Third, it demonstrates an attempt to minimise the conduct and indicates that he has not fully accepted responsibility for it. Fourth, it demonstrates a lack of insight into the seriousness of his conduct and a lack of insight into the impact upon his daughter. Indeed, his evidence is that he believes his conduct had no impact, physically or mentally, on his daughter.

101. It was suggested to the applicant that the remorse he has is for the consequences for himself. He insisted it was about the relationship with his child.

102. In our overall assessment of the applicant’s risk, we place a substantial amount of weight on the seriousness of the offences. We also place substantial weight on statements he has made that suggest minimisation of his conduct since they demonstrate he has not fully accepted the seriousness of his actions, and that he has limited insight into his conduct and the impact it had, and may continue to have, upon his daughter. We accept that the applicant is deeply remorseful for his conduct, but in our assessment, the consequences for himself appear to loom larger than his consideration of the consequences for his child.

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

103. Three years have elapsed since the time the applicant committed the offences.

104. Since that time, he has complied with the CCO without any breaches, and the ADVO has expired, also without breach.

105. There have been no further allegations in the nature of the applicant’s convictions, or any other charges or allegations against him.

106. To his credit, the applicant has stable employment and has undertaken a number of remedial actions towards his rehabilitation which have already been noted. They include completing the treatment plan attached to the report of Mr Albassit, discussed below, as required under a condition of the District Court CCO. He also completed a Positive Parenting Program course, as well as psychoeducational courses dealing with anger manager, self control and impulsivity. Additionally, he obtained certificates from the NRL in national safety education, child safety and mental health first aid.

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

107. The applicant was aged 34 at the time of the offences.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim: s 30(1)(d)

108. The victim was 10.

109. The victim was vulnerable for a number of reasons. First, as a child of 10, with her parents having been separated, she was entirely dependant upon her father when she stayed with him, for her care and protection. At the time of the assaults, there were no other adults in the house that the victim could have reached out to, for help. Second, given the father/daughter relationship between the applicant and the victim, there was a power imbalance, with the applicant in a position of authority over his daughter and she trusted him for her welfare and safety.

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

110. The age difference between the applicant and the victim is 24 years.

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

111. The victim was the applicant’s own child and he was therefore aware of her age.

The person’s present age: s 30(1)(g)

112. The applicant is currently 37 years of age.

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

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

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

114. It the applicant were to repeat his offending behaviour with respect to a child, including his own children, there is no doubt that it could cause physical and/or mental and/or emotional harm and/or psychological harm.

115. Assessing the likelihood of the applicant repeating his offending behaviour is not without some difficulty. He has acknowledged that his behaviour was extreme and unacceptable, has expressed deep remorse for his conduct and has undertaken remedial work with his treating psychologist as required by the CCO. However, we note the Tribunal’s caution with respect to assessments by psychiatrists and psychologists in CKU v Children’s Guardian [2017] NSWCATAD 36, at [106]-[107]:

“[106] The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179, at [67] and BKV v Children’s Guardian [2015] NSWATAD 65, at [99]; BQK v Children’s Guardian [2015] NSWCATAD 265, at [65]-[66]; BZU v Children’s Guardian [2016] NSWCATAD 3, at [91]-[92].

[107] In essence, expert witnesses in this Tribunal have stated that prediction of a relatively uncommon behaviour such as violent or sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.”

116. The Consultant Psychiatrist’s letter dated 8 August 2023 provides no assessment of the likelihood of the applicant repeating his offending conduct, other than to opine that it was an “impulsive act”. This opinion appears to have been made on the basis that the applicant had no prior criminal history. We have given negligible weight to the opinion.

117. The applicant relies upon the reports of his treating Psychologist, Mr Albassit, dated 4 July 2023 and 6 August 2024. Mr Albassit did not conduct a formal risk assessment, and used the Structured Clinical Interview for DSM-V (SCID5) to assess the applicant’s historical and current mental health conditions against the major DSM-5 diagnostic criteria.

118. Mr Albassit used a DASS 21 questionnaire with the applicant, in order to identify aspects of emotional disturbance and assess the degree of severity of any core symptoms of depression, anxiety or stress. The applicant returned a reading in the “severe” range for all three sub-groups. In Mr Albassit’s opinion, the applicant had been exhibiting symptomatology of Persistent Adjustment Disorder with mixed anxiety and depressed mood for approximately two years. The symptoms included mood swings, increased irritability, agitation, excessive anxiety and worry over everyday events or problems. In Mr Albassit’s opinion, the applicant’s psychological state at the time of the offences significantly contributed to his behaviour which he described as “reckless and impulsive”.

119. Mr Albassit designed a treatment plan for the applicant that he considered would negate the risks of further offending. In his further report dated 6 August 2024, he confirmed that the applicant had completed the treatment plan and was discharged from therapy in June 2024 after demonstrating positive change. He said the applicant’s symptomatology associated with his diagnosis of Adjustment Disorder did not progress to a more significant condition.

116. Mr Albassit acknowledged that, as a psychologist, he is not qualified to provide medical diagnoses, but he had the benefit of the Consultant Psychiatrist’s clinical letter. Contemporaneous notes of the applicant’s consultations with Mr Albassit include observations that he was “able to recognise triggers better - applying mindful techniques – staying present” and “Mood good focused – happier – psychoeducation courses assisted a lot”.

117. In our view, Mr Albassit restricted his opinion on whether the applicant poses a risk to the safety of children to his diagnosis of Adjustment Disorder, stating: “[The applicant] does not pose a risk to the safety of children by any reason associated with the previous diagnosis provided above.” He gave a further restricted opinion on the applicant’s risk by stating “there is no risk in respect of his mental health [our emphasis] that I can identify that would pose a risk to any child’s health and well-being”. Under cross-examination, Mr Albassit said that, based on what the applicant has done to rehabilitate, and because he has good support around him, the applicant does not pose a risk to the safety of children. However, Mr Albassit again acknowledged that he had not done a formal risk assessment.

118. On balance, since no formal risk assessment was conducted with the applicant, we have only given a moderately small amount of weight to Mr Albassit’s opinion in the applicant’s favour.

119. The applicant is to be commended for completing the court-ordered treatment plan. However, apart from engaging with a counsellor shortly after his marriage faltered, there is no evidence before the Tribunal that the applicant has, by his own volition, engaged in ongoing therapeutic counselling. There is also no evidence from the Consultant Psychiatrist (or any other qualified practitioner) to confirm whether the applicant’s medical diagnosis of Persistent Adjustment Disorder has, in fact, resolved. Without the protective environment of ongoing counselling, there remains a risk that the applicant’s symptomatology may return if faced with stressful circumstances, and he may suffer from a lack of impulse control. Taking those matters into account, and having regard to the extreme nature of his conduct in response to relatively minor irritation, there has not been a sufficiently long period of time since the applicant completed his therapy, to provide the Tribunal with confidence that, using self-regulation techniques, he will be in control of his emotions and impulsivity.

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

124. The applicant is subject to parenting orders made by the FCA.

125. The Tribunal understands that there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

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

126. The application is supported by a number of character and professional references from his employer, family members and friends.

127. Additionally, BN, a friend of 10 years’ standing who is also involved in the Club, has sworn an affidavit in these proceedings. BN said that he had read the Facts Sheet and was shocked to learn that the applicant had been convicted of common assault and stalking/intimidation in relation to his daughter. BN described the applicant as a “good, honest and compassionate” man. BN’s affidavit evidence is that based on his experience and time with the applicant and the children during coaching sessions, the children had never looked uncomfortable and had always been enthusiastic with the applicant as their coach. He added that the children would seek his feedback and guidance regarding their skills, and comfortably approached him for advice without fear or concern. He attended the hearing to give evidence and be cross-examined. He said that he would leave his children unsupervised with the applicant. We have given a moderate amount of weight to BN’s evidence in the applicant’s favour.

128. The applicant’s ex-wife provided a detailed personal letter in support of the applicant. To her mind, the incident came as a complete shock, as she said that her ex-husband had never been abusive or violent in any way. She said the incident was out of character and that her ex-husband was disgusted in himself. She also said that his relationship with his daughter had flourished and was stronger than it had ever been. Additionally, she described his ongoing role in their children’s lives during the week and during holiday periods, and said that she is comfortable with her children being with their father, either individually or together in a group:

“[The applicant] continues to go above and beyond for his children ensuring they have the best of everything, whether it’s their education technology, or way of life.”

129. Since the children live with their mother for most of the time, she is well-placed to observe their behaviour and adjustment to living under a co-parenting arrangement. Although she initially thought the incidents had been blown out of proportion, she has recognised that they were, indeed, significant. We have placed a moderate amount of weight on her positive statements about the applicant.

130. A personal character reference from the Club’s secretary refers to the applicant’s dedication and commitment as a volunteer, helping out in the canteen for many hours. In her opinion, he is a well respected member of the community. This reference makes no mention of the offences and does not contribute greatly to our assessment.

131. Personal references from three sets of parents of children who play with the Club attest to the applicant’s role in coaching and training their sons. The references contain similar wording, and make no reference to the offences. Other than to note that these parents hold the applicant in high regard, their references do not contribute to our assessment.

132. The applicant’s employer who has known the applicant for 10 years provided two references, the first in support of the clearance application in which he described the applicant as “a very genuine person” who wants to help children and younger people grow and develop. His second reference described him as ethical and a “good-natured person”. He said he was surprised to learn of the charge before the court which he described as a “domestic dispute”. He said that he had observed the applicant to be calm and engaging with his children, ensuring their needs come first. We have given a small amount of weight to this reference in our assessment of risk.

133. A reference from a relative of the applicant who is also a counsellor with experience in community services said that he was shocked and saddened to hear about the applicant’s offences. He said that the applicant had always shown compassion toward his own children and toward his nieces and nephews. His observation was that the eldest daughter is very fond of her father. We have given a small amount of weight to this reference in our assessment of risk.

134. A reference from the applicant’s sister described the applicant as patient and understanding, and a cherished figure in the lives of her four daughters. She regarded the applicant’s conduct as being out of character for him. We have given a small amount of weight to this reference.

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

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

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

136. The Children’s Guardian submitted that the applicant’s affidavit evidence, that he believes his actions did not impact upon his daughter, either physically or mentally, demonstrates that he lacks insight into the gravity of his actions.

Overall evaluation of risk

137. In determining whether the applicant poses a risk to the safety of children, we have considered the seriousness and recency of the offences against him, as well as the circumstances surrounding the offences and his overall conduct before and after the offence.

Factors in favour

138. There are a number of factors weighing in the applicant’s favour. They include:

1. that the applicant has no prior criminal charges or convictions against him, and the incidents appear to be isolated and out of character;

2. the applicant has no subsequent criminal charges or convictions, or allegations against him;

3. the applicant pleaded guilty, demonstrating a level of acceptance of accountability for his conduct;

4. the applicant’s subsequent reflections demonstrate he has insight into the seriousness of his conduct;

5. the applicant has expressed remorse for his conduct and regret at the consequences flowing from his conduct;

6. the applicant has completed therapeutic counselling, as required under a condition of his CCO;

7. the CCO and the ADVO have both now expired, without any breaches having occurred;

8. the applicant enjoys stable employment and pro-social and family relationships.

Factors against

139. There are a number of factors that outweigh the factors in favour of granting a clearance. They are:

1. that the offences for which the applicant was convicted were objectively very serious, violent, and child related;

2. that the offences are very recent;

3. that the child was vulnerable, being dependant upon the applicant for her care and protection in circumstances where he was in a position of authority and she trusted him;

4. that on the basis of the totality of the evidence, the applicant has only accepted limited responsibility for his conduct;

5. that the applicant has very little insight into the impact of his conduct upon the victim, believing that his daughter has not been affected, either physically or emotionally;

6. that the applicant’s expressions of remorse relate predominantly to the consequences for himself;

7. that the expiry of the CCO on 4 July 2024 and the expiry of the ADVO on 29 August 2024 are very recent;

8. that having only completed the court-ordered therapeutic treatment plan as required under the CCO in June 2024, the applicant’s rehabilitation has not been time-tested.

Conclusion

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

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

Orders

1. The decision of the Children’s Guardian dated 30 August 2024 to refuse to grant the applicant’s working with children check clearance is affirmed.

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

Registrar

Amendments

08 October 2025 - Coversheet, Orders - typographical error in date corrected.

After paragraph 138 - Subsequent paragraph numbering corrected.

typographical errors corrected.

Decision last updated: 08 October 2025