GQV v Children's Guardian

[2025] NSWCATAD 205

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GQV v Children’s Guardian [2025] NSWCATAD 205

Hearing dates:

5 May 2025

Date of orders:

15 August 2025

Decision date:

15 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
K Stubbs, General Member

Decision:

(1) The decision of the respondent dated 18 September 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed.

(2) The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable–– circumstances of allegations –weight of evidence of risk – current risk – evidence of behaviour that could harm children

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Evidence Act 1995

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

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

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v Office of the Children's Guardian [2014] NSWCATAD 111

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

Children's Guardian v CXZ [2019] NSWSC 1083

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

M v M (1988) 166 CLR (HCA)

Makita v Sprowles NSWCA [2005] 305

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

R v Commission for Children and Young People [2002] NSWIRComm 101

Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GQV (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
C Chiam (Respondent)

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

File Number(s):

2024/00364558

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

Pursuant to s 64 (1) (b) and (c) the Tribunal makes an order in respect of the paragraphs marked ‘Not for Publication’ being: [52] – [58] inclusive.

(b) prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c) prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCCC). The clearance was refused following a risk assessment. The applicant applied for a WWCCC on 1 February 2021 and the respondent notified him that a risk assessment would take place because of Police charges brought in 2020. During the course of the risk assessment further charges were brought in 2023 and these were incorporated into the risk assessment. These matters related to allegations concerning domestic violence and aggressive and threatening behaviour with an intimate partner and later another intimate partner.

2. In September 2024 the respondent completed their risk assessment and refused the applicant’s WWCCC. Because he had applied for a WWCCC in 2021 he was free to work with children whilst the risk assessment took place. As at the date of the decision on 18 September 2024 the applicant was immediately barred from working with children for five years in accordance with the operation of the Legislation.

3. The above matters occurred because after applying, pursuant to s 15 (4) of the Child Protection (Working with Children) Act 2012 (the ‘Act’) the respondent conducted a risk assessment of the applicant, as there was evidence in records of matters relevant to the safety of children.

Background

4. On 25 July 2024 the respondent sent the applicant a Notice of Proposed Refusal and provided a statement of Reasons for Proposed Refusal. The applicant was invited to make submissions prior to any final decision to refuse the application for a WWCCC. After receiving submissions in response to the notice of proposed refusal, the respondent finalised their assessment and after considering all of the evidence and material they had obtained in the assessment, refused the applicant’s application for a WWCCC on 18 September 2024.

5. On 2 October 2024 the applicant applied for administrative review by the Tribunal.

6. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is a real and appreciable risk to the safety and wellbeing of children and young persons. In accordance with s 30 (1) of the Act as we have found that the applicant poses a risk of harm to children, standing in the shoes of the administrator at s 18 (2) of the Act, we are unable to grant a WWCCC. As such the Tribunal is not strictly required to undertake the additional process of s 30 (1A) and be satisfied on the available evidence that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant person was engaged in any child-related work, and whether it is in the public interest that he currently be permitted to work with children un supervised.

7. As a result of this finding the decision of the respondent will be affirmed.

Further Background

8. The Applicant in these proceedings is referred to as "GQV". GQV is the applicant's pseudonym used in these proceedings in conformity with the order previously made in the proceedings under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 24 October 2024 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

9. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

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.

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.

10. The Notice of Refusal under s 18 (2) of the Act was issued on 18 September 2024. The section provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment (under Division 3) unless the Children’s Guardian is satisfied that the person poses a risk to children.

11. GQV stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed on 2 October 2024 at the Divisional NCAT Registry was lodged within the required period and as a result his application for administrative review has clearly been received within time and the Tribunal has jurisdiction.

12. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

13. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

14. Under s 27 (1) of the Act a person whose clearance is refused by the Children’s Guardian may apply to the Tribunal for a review. The section provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

The application for administrative review

15. The grounds of the substantive application (in summary) are:

The applicant has not made any offence related to children sine the last incident 2020.

The applicant shows extreme remorseful [sic] & believe applicant does not pose a threat to children.

The applicant has been undergoing treatment with psychologist and developing solid strategies to manage behaviour.

The applicant was working in the family social context and demonstrated professional boundaries without any offence until 18/9/2024 when OCG made decision to refuse applicant’s WWCC application.

16. Further and more detailed grounds were provided in written material submitted by GQV.

17. The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant (GQV), poses a risk to the safety and well being of children. In reaching this position the Tribunal is required to traverse section 30(1) and determine whether or not GQV is a risk of causing harm to children. If the Tribunal so determines that GQV is not a risk then s 30 (1A) of the Act must also be traversed (notwithstanding the language of s 18) and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining the applicant’s current risk.

The working with children legislative scheme

18. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

19. The safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.

20. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

21. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

22. Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). GQV was subject to a risk assessment as outlined above.

23. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

24. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act provides:

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.

25. In addition if the Tribunal considers that an applicant is not a real and appreciable risk to the safety and well being of children, the Tribunal must be satisfied that a reasonable person would allow the applicant to have unsupervised access to their children in a work setting, and that granting the clearance would be in the public interest. However, like the Guardian’s role prior, the Tribunal must grant the clearance unless an applicant poses a risk to children.

Burden of Proof

26. The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

27. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

28. An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.

29. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'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". ...'

30. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

31. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

32. We note that since the cases referred to above ‘risk’ has been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

The hearing

33. The matter was heard over one day. The applicant gave evidence at the hearing. No other witnesses were required for cross examination at hearing.

Written Evidence

Applicant’s written material

34. The applicant filed a number of written items in support of his application.

1. Exhibit ‘A 1’: bundle of documents filed with the application for administrative review,

2. Exhibit ‘A 2’: MPF File containing the 2020 Police ERISP (Record of Interview).

3. Exhibit ‘A 3’ Further material (mixed with submissions) October 2024.

4. The applicant also filed detailed written submissions.

Respondent’s written material

35. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31 of the Act. The respondent also filed detailed written submissions dated 20 March 2025. .

1. Exhibit ‘R 1’ documents produced under s 58 of the Administrative Decisions Review Act 1997 (402 pages) filed 21 November 2024.

2. Exhibit ‘R 2’ further documents produced under s 31 of the Act filed 21 March 2025 (21 pages).

Brief history of relevant matters

36. GQV is a parent of three young children and until the time of his WWCCC refusal was employed in an area assisting families, predominantly couples as well as children peripherally. GQV came to the Tribunal acknowledging that irrespective of custody issues, his children were financially dependent on him.

37. In 2020 Police charged GQV with domestic violence offences concerning an assault on his partner (who was in her second trimester of pregnancy at the time). GQV pleaded guilty and the Court made a finding of offence proven without proceeding to a conviction. GQV was placed under a Conditional Release Order.

38. In 2023 GQV was charged with common assault of another partner. The Court again found the offence proven without proceeding to a conviction and placed GQV under another Conditional Release Order.

GQV’s evidence at hearing

39. In evidence in chief GQV adopted as true and correct his statement filed on 11 October 2024.

40. In cross-examination GQV was asked when was the last time he spoke to his treating expert Dr D’Silva. GQV advised that he had last spoken to him before Christmas and had seen him when he signed off on the report in May 2024. GQV said that he worked for the (not for profit organisation - the ‘NFP employer’) from 2018 until 2024 when his clearance was refused. Part of his role was to assist parents returning to the workforce when their children were of school age. GQV said that his role as the head of a team was to assist staff in delivering the program. In this role GQV said that it would be rare for parents to attend with their young children but it did occur occasionally. The Tribunal notes that GQV’s role did not appear to involve child related work as set out in the Act and the Regulation being the Child Protection (Working with Children) Regulation 2013. In addition the work was not unsupervised work with children in that adults were always present, being clients and occasionally colleagues. The Tribunal noted that GQV had previously stated that he required the clearance for that role but also apparently for any role within the NSW Department of Communities and Justice (DCJ) that he may seek in future.

41. GQV was asked about some of the material in the s 58 documents held by the respondent. GQV explained that much of that material related to minor workplace disputes and managerial matters. He also conceded that much of the material that he submitted that was reproduced in the s 58’s omitted self referencing alcohol use. However GQV advised that there was evidence in his material of raising alcohol issues with Dr D’Silva, GQV agreed that he first raised this as an issue in 2023 after the second Police matter where he was charged. He said that he raised it with an employment counsellor as an issue as he was not being treated by Dr D’Silva at that time. GQV said that the employment assistance program (EAP) person that he saw was not a psychologist. GQV said that he had not consumed alcohol since Christmas day 2024, but when he does drink (prior to 17 months ago), he only has one drink when drinking socially.

42. GQV advised that he had been utilising alcohol up until 2023 and at that time he did not see it being an issue. He said that he did not realise that his alcohol use was excessive until 2023. GQV said that it was not just the death of his father at that time (where he could not visit prior to his death due to Covid 19 restrictions on international travel), but that there were a lot of other issues impacting on him at that time.

43. The Tribunal listened to a number of recordings of the Police interviews during GQV’s cross examination. At one stage GQV was granted a Certificate under the Evidence Act 1995 in respect of some of his evidence under cross examination and this was clearly noted on both the transcript and the file.

44. The Tribunal heard the recording in open session where in respect of the 2020 assault GQV stated that he had a few drinks being 3 to 4 beers and appeared somewhat evasive in answering the Police questions. These observations do not count against GQV in these proceedings noting that the matter is not a disclosure for the Tribunal’s purpose and GQV is not in breach of any duty. However, we observe his lack of candour at that time but also observe that he was in Police custody with all of the attendant stressors that such circumstances would ordinarily entail at least for a first offender.

45. During the ERISP (Electronic Record Interview Suspected Person) a number of matters are conceded by GQV. He concedes that the victim of the 2020 incident was 5 months pregnant, admits to drinking alcohol prior but could not remember how many drinks he had. GQV said that the victim said something to ‘trigger’ his anger and that he pushed the victim as a result. He could not recall where he pushed the victim, but in the recording refers to pushing the victim on her arms. Before the Tribunal GQV conceded that he pushed the victim on the shoulders. He said that the victim was trying to get in the front door. It was suggested to GQV that he pushed the victim quite hard which GQV denied.

46. GQV agreed that the victim tried to move away from him and then he put his arm around her neck. GQV suggested that this was done to stop the victim from falling. It was suggested to GQV that such an explanation was a lie but GQV disagreed and denied putting his arm around the victim to place her in a headlock. GQV stated that he has a poor memory of the matter and cannot recall pressing his key into the side of the victim’s face.

47. In respect of the statement purportedly made by him to the victim ‘I can kill you both’, GQV agreed that he might have said those words after hearing the recording and that he yelled at the victim after releasing her. His memory was poor and he agreed that it was possible that he used the key and said the words as outlined by the victim. GQV said that he lost control and believed that alcohol played a part.

48. GQV said in evidence that at the time in 2020 he was not aware that pushing someone was an ‘act of violence’. He did not agree with the Respondent Counsel’s suggestion that he lost control of his anger. GQV said that he did not recall the matter concerning the key and did not recall saying that he was going to kill both the victim and her unborn child.

49. In respect of the 2023 incident GQV said that the victim (a different individual to the 2020 victim) wanted to end their 10 year relationship and break up. GQV said that he did not wish to end the relationship. GQV said that he wanted to go somewhere away from the residence with the victim to talk. They went outside and the victim wanted to go back inside. GQV said that in that context he held the victim and then slapped her. In evidence before the Tribunal GQV conceded that he knew that this incident was an incident of domestic violence. Again GQV’s evidence to the Tribunal was that he ‘lost control’ when he slapped the victim because she said that she did not wish to go to another location. GQV put much of his behaviour in the 2023 incident down to alcohol consumption.

50. GQV denied causing any red mark on the victims arm and said in evidence that the victim was capable of causing marks on her arm and bruising herself (self-inflicted) and that she also had a skin condition which caused marking.

51. GQV then gave evidence about matters for which he was given a Certificate under the Evidence Act. Whilst that evidence was given in open session we have decided that it is appropriate to restrict the publication and broadcast of that evidence in accordance with s 64 (1) (b) and (c) of the NCAT Act.

Confidential Evidence

52. [Not for publication]

53. [Not for publication]

54. [Not for publication]

55. [Not for publication]

56. [Not for publication]

57. [Not for publication]

58. [Not for publication]

End of Confidential Evidence

59. The Tribunal asked a number of questions of GQV consistent with the provisions in s 36 of the NCAT Act. GQV was asked to clarify what he was referring to in his written submissions around paragraph [16] whereby he comments on the DCJ risk of harm reports. GQV said that ‘A’ (victim) feels psychologically damaged due to his behaviour. As a result she is ‘defensive’ towards him and suggested that she may exaggerate things. When the Tribunal asked whether he was suggesting that this victim exaggerated his behaviour towards her he confirmed this was the case.

60. In closing when asked by the Tribunal why he needed a clearance, GQV confirmed that he wanted the WWCCC for other possible reasons other than his work for the NFP, such as potential work for DCJ and related work.

GQV’s submissions

61. Both the applicant and respondent provided written submissions. Oral submissions were made at hearing. GQV made brief oral submissions concerning his risk. He submitted that as a father to three children he is aware of the significant responsibility and described it as a big responsibility to those children.

62. GQV submitted that he does not believe that he is a risk to children and also referred to his circumstances of coming to Australia as a young man. In written submissions he set out his version of the two criminal incidents, those matters being explored in some detail during his cross examination.

63. GQV made reference to the protective factors and set out how he had committed to ongoing counselling through engagement with a treating doctor and his employer’s EAP program. GQV also referred to the beneficial aspects of the Conditional Release Order (CRO), which provided a valuable opportunity for reflection on past behaviours. His written submissions referred to the profound harm that violence towards children can cause including serious psychological effects.

64. GQV referred to his training attainments in the areas of domestic violence, child safeguarding and how at the time of preparation of his submissions he was awaiting acceptance into the Men’s Behavioural Change Program.

65. GQV then moved through the s 30 criteria that the Tribunal must consider and referred to the actions of the respondent being in some manner questionable in his case. Paragraphs [20] – [23] refer to these matters which in our view appear to be in part a misunderstanding of how a person can continue to work with children while a risk assessment occurs unless the Children’s Guardian imposes an Interim Bar (which was not the case here). His submissions questions why the respondent let him work with children during the three to four year assessment is he was such a risk. GQV referred to his references and the report of Dr D’Silva and relied upon them.

Respondent’s submissions

66. In oral submissions the respondent relied upon four grounds as to why the Tribunal should refuse the clearance. There were: the criminal offending, GQV’s use of alcohol, other incidents referred to in the material from DCJ and the relevance of that conduct especially in the context of GQV’s previous NFP work.

67. The respondent submitted that there were a number of basis to accept the facts in respect of the criminal matters. The guilty pleas, and the evidence in cross examination coupled with the victims’ versions. The push, hit, slap and headlock were all submitted as occurring and that even on his own evidence GQV did push ‘A’ with some force as he needed to stop her from falling.

68. The respondent submitted that the skin condition and self harm evidence of GQV concerning one of the victims should be disregarded as there was no corroborating evidence, or evidence generally other than GQV’s self serving evidence on this point.

69. The respondent submitted that there was a real and appreciable risk that GQV may act violently towards children. They submitted that when GQV drinks alcohol he loses self control and that this submission was supported by the evidence.

70. The respondent noted that following the 2020 incident the conditional release order expired in November 2022. Four months after that expiration GQV reoffended in 2023. In addition even after extensive counselling GQV offended again. The respondent submitted that counselling was not sufficient to prevent GQV reoffending.

71. The respondent submitted that GQV’s evidence that he did not understand or know that certain actions constituted domestic violence and crimes of assault, that such evidence is not credible.

72. Treatment for alcohol use was not referred to in most of the material and references only arise since August 2024. The respondent submitted that there was nothing in the October 2020 report and Dr D’Silva first makes reference to it in the August 2024 report despite treating GQV for some years. The respondent noted that Dr D’Silva was not available for cross examination at hearing and as a result less weight should be placed on the evidence of the doctor as it had not been able to be tested.

73. The respondent submitted that a reasonable person would not allow GQV to work with their children. Reference was made to CSW v Children’s Guardian [2017] NSWCATAD 326 where the Tribunal stated at [136]:

In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases in our view a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent’s submissions as to weight).

74. The respondent submitted that it would be open to the Tribunal to find that a reasonable person would not allow their children to have direct contact with GQV, contact that was not directly supervised.

75. The respondent conceded that granting a clearance might be in the public interest but that such a position would be unlikely to arise if the Tribunal found that GQV was both a risk and that the reasonable person would not allow GQV to engage win child related work with their child.

Consideration

76. Having set out the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

77. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

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

78. GQV’s application to the Tribunal is brought about by an adverse risk assessment. There are no offences disqualifying GQV from obtaining a WWCCC. The adverse risk assessment was triggered by GQV’s 2020 offending. The offending was serious especially having regard to the circumstances whereby the victim was mid term in her pregnancy.

79. Since that time a further matter occurred which is very similar in nature. The second victim was also in a relationship with GQV and like the first victim, was a victim of a domestic violence incident.

80. GQV’s actions have been considered as serious domestic violence, involving physical violence and serious threats. The violence was repeated with different victims over a relatively short interval noting the expiry of Court imposed conditions.

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

81. It is clear that the matters referred to under s-30 (1) (a) cover a period of time in very recent years as all of it occurred in the last five years. The 2023 offending is particularly recent and raises significant concerns due to its repeated nature. The respondent submitted that whilst there were no records of adverse conduct since 2023 caution should be applied when considering the likelihood that GQV has engaged in misconduct. The respondent submitted that the Tribunal should hold real concerns as to the possibility of subsequent offending.

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

82. GQV was approximately 38 years old when the 2020 matters occurred and 40 or 41 when the 2023 matter 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.

83. In respect of the trigger matters the victims were adult women. They were vulnerable because they were women and GQV is a man. The evidence establishes that he was physically taller and stronger than the victims. The victim in the 2020 incident was five months pregnant. This made her and the unborn child especially vulnerable bearing in mind the physical nature of the assault.

84. Both victims were vulnerable because they were in a relationship with GQV, and the 2023 victim was ostensibly assaulted because she wanted to end the relationship. The 2020 victim was of similar age to GQV at that time with the 2023 victim some seven or so years older. Her daughter in her early to mid 20’s was present.

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

85. At the time of the 2020 offence the difference in age was negligible being one year or less. In respect of the 2023 offence the victim was a middle aged woman some seven years older that GQV,

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

86. The victims were not children.

(g) The person's present age.

87. GQV was 42 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

(h) The seriousness of the person's criminal history and the conduct of the person since the offences occurred.

88. GQV’s criminal history concerns the matters set out above and causing the adverse risk assessment. As noted above there is no evidence before the Tribunal that GQV has offended since 2023.

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

89. GQV provided a report and material from Dr D’Silva. Unfortunately that material did not address all issues around alcohol use, partially it would appear because GQV did not raise the issue of alcohol until fairly recently. The August 2024 report refers to alcohol issues but suggests that they were transient issues brought about by localised factors such as grieving. The 2024 report does not raise alcohol as a factor even though in the evidence before the Tribunal alcohol was clearly a factor and attributed by GQV as explaining his behaviours in part.

89. The DCJ reports intersect the period between the two charge matters. They are reports which mainly arise from observations and reports of GQV’s behaviour. We note that for the majority of behaviours it was with women and around or in the presence of children, being the behaviours of concern. The currency of all of these matters from 2020 to 2023 elevates the risk of GQV repeating aspects of his behaviour. The DCJ reports reference violent behaviour in the presence of children in addition to other matters.

90. Whilst Dr D’Silva opines that GQV will not reoffend, we note that there are limitations to that opinion based on the currently available evidence. The absence of consideration of alcohol use up until 2023 is a factor. Conversely there is limited independent information from Police and DCJ material around alcohol use. As is often the case much of the clinician’s opinion would be based on GQV’s self reporting. The report has a lack of detail as to how it reaches its conclusions, especially in respect of managing alcohol use. Consistent with the finding of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 for that reason alone it is open to the Tribunal to place limited weight on Dr D’Silva’s reports.

91. Whilst the regime is not intended to be punitive to applicants, as we observed GQV’s evidence he appeared to only show insight into the nature and wider circumstances of his behaviour at times. At other times in his evidence the issue concerned him rather than the impact of his behaviour on others. In our view there was at least some lack of insight on how his behaviour harmed others, and particularly how it might have harmed children (from the DCJ reports) or could harm children if it was to be repeated in the presence of children.

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

93. At the time of hearing the applicant remained subject to an Apprehended Violence Order (AVO). There is no other relevant evidence or matters to consider under this criteria.

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

94. As noted GQV tendered the reports of Dr D’Silva who initially appears to have been commission in respect of sentencing for the 2020 matter. We have referred to the doctor’s material above.

95. Personal professional references were also provided. Neither of these were able to attest to GQV’s work directly with children. His own statements refer to the types of matters that would lessen his risk. In our view these statements were not supported by GQV’s oral evidence as noted at [92] above. They appear as an appropriate written response to what is best practice concerning keeping children safe from harm and do interpose the objects and paramount consideration of the Act to his own personal attributes.

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

96. There is no material obtained under s 36A.

(k) Any other matters that the Children's Guardian considers necessary.

97. The respondents concerns in their submissions are set out above. In summary they maintained that GQV remains a risk to the safety of children and the repeated behaviour in a fairly recent timeframe elevates the current risk.

Findings

98. The necessity to make findings on adverse matters was set out in part in BKE v Children’s Guardian [2015] NSWSC 523 and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406.

99. We have decided that we do not need to embark further on an examination of the evidence of each allegation and make findings. This is particularly so when we are unable to test the evidence further. The significant matters have been adjudicated on by the Local Court. Whilst there are significant matters amounting to allegations of conduct of concern, noting the DCJ reports, GQV’s explanations are at times believable and at others somewhat implausible, such as thinking that the staff who spoke to him at the Hospital were not security staff.

100. Some of the Evidence for which GQV was given a Certificate under the Evidence Act raises further concerns about his risk.

101. In our view, the real issue from a risk assessment perspective is the nature, similarity and frequency of the matters over a recent period of time. We do not accept that when one looks at the period of time (over 3 years in the last five years) the ‘adverse matters’ are spread out.

102. In our view there is no need to make positive findings on any remaining allegations. In that regard we adopt the position we set out by the Court of Appeal at [104] below where a rote consideration of each matter is not required, rather a consideration of what can be ascertained in the context of risk.

103. In the case of CXZ v Children’s Guardian [2020] NSWCA 338 the Court considered the protective rather than punitive nature of the Act and the working with children scheme.

104. At [46] of CXZ in reference to the High Court’s approach in M v M, Simpson AJA observed:

46. In the High Court the allegations of sexual abuse were treated as “central to the case” (p 71). The Court recognised, however, that (in circumstances where the relevant legislation enjoined the court to regard the welfare of the child as “the paramount consideration”), the court could not be “diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse” (p 76). In that context, the Court said (p 77):

“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegations as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. ...

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”

105. The paramount consideration therefore remains in determining matters to welfare of children and not being focused on determinative conclusions about specific allegations.

106. Our substantive role, to assess risk, and whether specifically the applicant poses a risk to the safety and well being of children and young people. We have based our consideration on all of the evidence provided at hearing and in in documentary form.

107. As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.

108. The case of Children's Guardian v CXZ [2019] NSWSC 1083 (which is the precursor to the Court of Appeal case of CXZ outlined above), addressed the matter of how the Tribunal should consider risk when there are numerous adverse matters, or issues which were given weight in determining that an applicant or holder of a clearance was a risk to the safety and well-being of children.

109. At [294] in Children's Guardian v CXZ [2019] NSWSC 1083 the Court observed that the Tribunal needs to consider the cumulative effect, and to do so in the following manner.

294. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).

295. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.

110. In these proceedings we find that the main issue as to risk concerns GQV’s behaviours towards women and persons in situations that he wishes to exert some type of control over. We note that outside of these situations and circumstances GQV’s occupational and broader social functioning appears unproblematic on the available evidence. However in situations where he seeks to maintain power and control, issues arise. It is precisely in these types of situations that the potential for harm to even more vulnerable individuals such as children can arise.

111. For that reason our focus is not so much on whether matters were made out (as referred to at 295 of CXZ above at [109]), but the import of the applicant’s behaviour and how it points to current and future risk.

112. We note the observation of Young J in the case of 'V', at [42].

'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". ...'

113. When the totality of matters are considered is the risk greater than the risk of any adult preying on a child? Those matters arose in the fairly recent past where there is in our view insufficient time elapsed and remedial action (especially in respect of admitted behavioural triggers such as alcohol), to lesser the risk to a level below real and appreciable at present.

114. Based on a consideration of all of the evidence, we are satisfied that GQV currently poses a real and appreciable risk to children as referenced by Young J in ‘V’. In our view, on the evidence and material before us, and having regard to the weight of evidence, based on consideration of all the circumstances as set out above, we find that GQV does currently pose a risk to the safety and well being of children and young persons.

115. We note in making this preliminary finding that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act.

116. In reaching this position we note that it is a protective jurisdiction, and that the interests of the safety and well being of children override any other interests. However that is not the end of the matter. Whilst we are not required to address section 30 (1A) having made the finding that we have, we do consider it in light of the available evidence.

Section 30 (1A) consideration and findings

117. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition, the section requires that the making of the order be in the public interest.

(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.

118. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order.

119. The matter of GQV’s recent offending was the live issue in the hearing and addressed above concerning risk. In our view if a reasonable person was to review the evidence adduced including the material for which a Certificate was given, in that light we conclude that they would have significant concerns about GQV having unsupervised contact with their child.

120. It is arguable that the granting of the clearance to GQV would be in the public intertest, as it would enable him to rejoin his former productive role. However, having made findings under s 30 (1) that GQV poses a risk, and s 30 (1A) (a) that the reasonable poison would not allow GQV to engage in child related work with their child where the work was unsupervised by another adult, on balance it would appear contrary to the public interest to grant the clearance.

Conclusion

121. For the reasons set out above, we reach the following conclusion.

122. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant currently poses a risk to the safety and wellbeing of children, and as a result a risk of harm.

123. The evidence also establishes that we are not satisfied, in accordance with s 30 (1A) (a) that a reasonable person would allow his or her child to have direct contact with GQV that was not directly supervised by another person while GQV was engaged in any child-related work, and we so find.

124. As we have made the finding that we have in the paragraphs above, we are not required to make a finding that granting GQV a WWCCC would be in the public interest in accordance with s 30 (1A) (b) as ss (a) and (b) are conjunctive.

125. It therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

126. The application will therefore be dismissed.

Orders

1. The decision of the respondent dated 18 September 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed.

2. The application is dismissed.

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

Registrar

Decision last updated: 15 August 2025