GQX v Children's Guardian - [2025] NSWCATAD 230

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GQX v Children’s Guardian [2025] NSWCATAD 230
Hearing dates: 15 May 2025
Date of orders: 15 September 2025
Decision date: 15 September 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
A Limbury, General Member
Decision:
The decision of the Children’s Guardian dated 25 September 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(1)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) — Tribunal to assess whether applicant poses a risk to the safety of children.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Road Transport Act 2013 (NSW)

Cases Cited:
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFX v Children’s Guardian [2014] NSWCATAD 115
BHY v Children’s Guardian [2015] NSWCATAD 91
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Commissioner for Children and Young People v IK [2005] NSWSC 1136
CRG v Children’s Guardian [2017] NSWCATAD 295
CTE v Children’s Guardian [2018] NSWCATAD 28
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAI v Children’s Guardian [2017] NSWCATAD 308
DJY v Children’s Guardian [2023] NSWCATAD 241
Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60
DYH v Public Guardian [2021] NSWCATAD 136
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162
McDonald v Guardianship and Administration Board [1993] VR 521
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Smith v Commissioner of Police [2014] NSWCATAD 184
Tilley v Children’s Guardian [2017] NSWCA 174
VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789
YG & GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:
None cited

Category: Principal judgment
Parties: GQX (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
J Curtin, Counsel (Respondent)
Solicitors:
Walker Criminal Lawyers (Applicant)
Crown Solicitor(Respondent)

File Number(s): 2024/00368308
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 7 November 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, background and overview

Introduction

The applicant sought administrative review under s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) of the decision of the Children’s Guardian made on 25 September 2024 pursuant to s 18(2) of the Act, 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”).

Background

The applicant is 26 years of age and works as a personal trainer. He arrived in Australia in mid-2014 as a refugee under a protection visa from Pakistan, along with his mother and five younger siblings. We understand that his father is deceased. The applicant identifies as Afghani.
In his letter to the Tribunal, the applicant stated that when he first arrived in Australia, he didn’t speak a word of English and knew very little about the laws or customs in Australia. He said that he worked hard to learn the language and complete his high school education before studying at a Technical and Further Education college (otherwise known as “TAFE”) to become a fitness coach.
The applicant worked in various jobs, including general labouring work. He also worked for a supermarket for around 5 years. He is passionate about his career as a personal trainer, having been employed by a gym since August 2021.
The applicant’s employer provides memberships and services to both adults and children under the age of 18 years as well as childminding services, and has confirmed that it is a mandatory qualification for staff in all roles with the gym to have a current working with children check clearance.
The applicant applied for a clearance on 22 December 2020, nominating “Clubs or other bodies providing services to children” as the relevant child-related sector in connection with his work as a personal trainer with the gym, and asserted that he would lose his job without a clearance.

Overview

Risk assessment by the Children’s Guardian

The Children’s Guardian notified the applicant on 14 January 2021 that it was necessary to undertake a risk assessment due to the presence of records specified in cl 1(1)(a) of Schedule 1 of the Act relevant to the safety of children.
The records prompting the risk assessment indicated that in late 2014, charges of “Indecent assault person under 16 years of age” (2 counts) under the now repealed s 61M(2) of the Crimes Act 1900 (NSW) were laid against him (“Indecent Assault Charges”). The sexual offences were withdrawn in exchange for the applicant pleading guilty to a charge of Common assault (“Common Assault Charge”). In these Reasons, we also refer to the charges prompting the risk assessment as “the Trigger Offence”. As the applicant was 15, the Children’s Court Magistrate dismissed the matter with a caution pursuant to s 33 (1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
In response to the notice of risk assessment, the applicant provided a submission on 1 February 2021 (“the First WCCC Submission”), along with an employer reference. The submission stated that the applicant required a clearance to train different age groups at the gym where he worked, but did not provide any response to the request for information about the Trigger Offence.

Continuous check event disclosing charges against applicant in 2022

On 29 March 2022, whilst undertaking the risk assessment, the office of the Children’s Guardian received notification of a continuous check event concerning the applicant who was charged with “Stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence)” on 26 and 27 March 2022, with accompanying driving offences. In these Reasons, we refer to the charges as “the 2022 Charges”. At the time of the alleged conduct, the applicant was aged 23 and the complainant was an adult and the applicant’s former girlfriend. He was also made subject to a provisional Apprehended Violence Order (AVO) to protect the complainant.
On 16 November 2022, the Children’s Guardian notified the applicant that further information was required in connection with new records relating to the 2022 Charges. The applicant provided a further submission to the Children’s Guardian on 29 January 2023 (“the Second WCCC Submission”) explaining the circumstances of the 2022 Charges. The Second WCCC Submission did not disclose that, on 23 December 2022, the applicant had been arrested and charged with contravening the provisional AVO in place for the protection of his former girlfriend. He stated that he needed a clearance to train people of different ages at the gym. He provided an additional reference from his employer and four character references from persons associated with the gym.
The applicant pleaded not guilty to all of the 2022 Charges. He was convicted on 21 July 2023 of the domestic violence offence and was directed to enter into a Community Correction Order for 15 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The AVO for the protection of the applicant’s former girlfriend became enforceable for a period of two years, expiring on 20 July 2025. With respect to a charge of “Knowingly drive motor vehicle in manner that menaces another person – first offence”, contrary to s 118(2) of the Road Transport Act 2013 (NSW), the applicant was disqualified from driving for 12 months. A second negligent driving charge was withdrawn.

Further continuous check event disclosing charges against applicant in 2023

Further, on 10 August 2023, while the risk assessment was still underway, the Children’s Guardian received another notification of a continuous check event concerning the applicant who was charged with “Use carriage service to menace/harass/offend” contrary to subsection 474.17(1) of the Criminal CodeAct 1995 (Cth). The offending conduct was alleged to have taken place on 9 August 2023. The victim was the applicant’s younger adult brother. The applicant was also charged with “intentionally or recklessly destroy/damage property domestic violence related” contrary to s 195(1)(a) of the Crimes Act 1900 (NSW).
The applicant was released under s 19B(1)(d) of the Crimes Act 1914 (Cth) without proceeding to conviction and received a good behaviour bond for 12 months expiring on 15 July 2025. Additionally, he was made subject to an AVO for the protection of his brother, expiring on 15 July 2025.

Case review by the Children’s Guardian

After conducting a case review in March 2024, the office of the Children’s Guardian contacted the applicant by telephone, requesting him to provide information, in particular, regarding the Trigger Offence. On 20 March 2024, the Children’s Guardian emailed the applicant, advising that there was insufficient information to proceed with the risk assessment and attaching a letter outlining the specific information required to progress the application.
On 29 March 2024, the applicant sent an email to the Children’s Guardian explaining that English was not his first language and that he had done his best to describe everything. He attached further information, addressing the Trigger Offence which is considered under the heading “Consideration”.
In April 2024, after making inquiries of NSW Police, the Children’s Guardian received information from the Child Abuse and Sex Crimes Squad of reported allegations of domestic violence-related incidents between the applicant and members of his family on three occasions in 2019 and 2020. These matters are considered in these Reasons under the heading “Consideration”.
After making further inquiries of NSW Police about enforceable AVOs against the applicant, the Children’s Guardian became aware on 13 August 2024 of the applicant’s breach in December 2022 of the AVO in place for the protection of his former girlfriend.

Children’s Guardian refusal of clearance

On 13 August 2024, the Children’s Guardian advised the applicant that his application for a clearance was proposed to be refused, and invited him to provide further information within 15 business days. The applicant provided a further submission on 25 August 2024 (the Third WWCC Submission) with information concerning the Trigger Offences, the 2022 Charges and the 2023 Charges. He attached a letter from the applicant’s brother who had been involved in the conflict with him, resulting in the 2023 Charges. He also attached a further reference from his employer and three character references.
On 25 September 2025, the Children’s Guardian advised the applicant that his application for clearance had been refused and that he was barred from working with children for five years in accordance with the operation of the legislation.

Application for administrative review

The applicant filed his application for administrative review on 4 October, 2024, asking the Tribunal to grant him a clearance. Submissions on his behalf argued that the applicant does not pose a risk to the safety of children, that there is no evidence to suggest a likelihood of repetition of child-related offences, and that it is in the public interest to grant the clearance. It was argued that the only child-related incident in 2014 occurred when the applicant was a minor and that the applicant’s criminal history otherwise did not involve children and should not be taken into consideration. It was submitted that the applicant had completed an anger management course to learn to control his emotions. It was further submitted that the refusal of a clearance would cause undue hardship to the applicant, affecting his financial stability and rehabilitation.
The Children’s Guardian opposed the application, arguing that the Tribunal should conclude that the applicant poses a real and appreciable risk to the safety of children. Additionally, the Children’s Guardian submitted that a reasonable person with knowledge of the applicant’s criminal history would not allow him to have unsupervised access to their children in a work setting, and that granting the clearance would not be in the public interest.

Tribunal’s decision

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

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 7 November 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 including the location of court proceedings.

Material and evidence before the Tribunal

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

A bundle of documents filed on 29 January 2025 totalling 72 pages (marked for identification as “Exhibit A1”) and comprising (in the order in which the documents generally appear in the bundle):

a letter from the applicant addressed to the Tribunal concerning the Trigger Offences;

a letter dated 24 December 2024 from the applicant’s solicitor who represented him in relation to the Trigger Offences;

a personal/character reference dated 18 November 2024 from Ms EL;

the applicant’s submissions which appear to be a copy of the applicant’s Third WWCC Submission on 25 August 2024 to the Children’s Guardian regarding the applicant’s history of various incidents as recorded in his criminal history;

a professional/character reference dated 31 September 2024 from Ms MT;

a personal character reference (undated) from Ms LR;

an employer reference dated 17 November 2022 from Mr MD;

a copy of the Second WWCC Submission dated 29 January 2023;

Certificate of completion of an online anger management professional development program dated 25 November 2024;

a personal character reference dated 5 January 2023 from Mr PC;

a personal/professional character reference dated 16 August 2024 from Ms PC;

a personal character reference dated 26 June 2025 from Ms SA;

another employer reference (undated) from Mr MD;

a personal character reference dated 29 October 2025 from Ms MD;

a statement dated 24 August 2024 by the applicant’s brother in relation to the 2023 Charges against the applicant;

a further four-page letter from the applicant addressed to the Tribunal setting out the grounds for the granting of a clearance together with submissions on the consequences of the applicant not being granted a clearance;

a professional/personal reference dated 2 December 2024 from Mr JP;

a professional/personal reference dated 11 December 2024 from Ms TP;

a professional/personal reference dated 5 November 2024 from Mr AM.

Written submissions dated 9 May 2025 prepared by the applicant’s legal representative in these proceedings in reply to the respondent’s written submissions and attaching a number of documents and references, all of which appear to be also contained in Exhibit A1 (not marked).

Letter dated 7 May 2025 from Ms TP, confirming the mandatory qualification for employees of the gym to have a working with children clearance (marked for identification as “Exhibit A2”).

The following material was filed on behalf of the respondent:

documents filed on 20 November 2024 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (marked for identification as “Exhibit R1”);

further bundle of documents filed on 1 April 2025 (marked for identification as “Exhibit R2”);

written submissions dated 2 May 2025 (not marked).

Oral evidence

The applicant attended the hearing by audio-visual link and gave oral evidence and was cross-examined during the hearing.

Issue for the Tribunal’s determination

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”).
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.
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 postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 (‘YG’) at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77.”

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.

What orders the Tribunal can make

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 Children’s Guardian for reconsideration: s 63(3) of the ADR Act.

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

In determining the application, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof. 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.

Applicable legislation and legal principles

Protective jurisdiction of the Act

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

The safety, welfare and well-being of children and, in particular, protecting them from abuse, is 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

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].
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”

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

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

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. Generally, child-related work, including voluntary work, involves providing services for children and young persons under the age of 18 where the work involves being face to face.
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.

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

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

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.
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.

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

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

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

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].
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.”

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

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 (ICM) 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.”

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.
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.”

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].
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

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.”

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.”

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].
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”.”

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

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

We acknowledge the cultural sensitivity surrounding the applicant’s arrival in Australia as a refugee on a protection visa in June 2014, along with his mother and siblings in June 2014. In saying that, we accept that the applicant had only a limited understanding of Australian law and customs in 2014, as submitted on his behalf.
We also note, from records provided by FACS (now the Department of Communities and Justice (“DCJ”)) that the family’s relocation from Afghanistan to Australia was most likely associated with a history of trauma. DCJ noted that the Department would work with the family to provide support, migrant services, orientation in relation to legal rights and behaviour, and would assist them to access legal services if required.
We also note that the applicant drew the attention of the Children’s Guardian to the fact that English was not his first language. We understand that the language barrier may have caused some confusion concerning some of the information provided to the Children’s Guardian. For instance, the applicant’s employer’s reference stated “I have observed there have been situations in which [the applicant] may have felt misunderstood in his interpretations with staff and clients and I have always tried to help support him get his message across”. When asked by the Children’s Guardian to clarify what that statement meant, the referee explained that it was because the applicant had moved here from a different country and English is his second language.
It was apparent, from information contained in the applicant’s Third WWCC Submission, that he had used artificial intelligence (AI) resources to assist in answering the questions in the Children’s Guardian’s request for further information. The Senior Member asked the applicant to clarify some of his responses to those questions from the Children’s Guardian. The Tribunal enquired as to whether an interpreter was required to assist him during the hearing and was assured by the applicant that he was confident to understand and answer questions when giving his evidence and being cross-examined. He was also legally represented in the proceedings. We were therefore satisfied that the applicant was reasonably adept at understanding and answering questions during the hearing. Nonetheless, in assessing the evidence, we have made appropriate allowance for the meanings of some words and expressions used by the applicant to be his best effort to translate information to the level of his understanding of English and to communicate in English.

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

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

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

As already noted, in proceedings before this Tribunal, the standard of proof that is applied is the balance of probabilities, otherwise referred to as the civil standard of proof (subject to having regard to the Briginshaw principle), and not the criminal standard. In evaluating the evidence before us, it is not necessary to find that the offences or the alleged conduct occurred. It is sufficient to conclude that it is possible that the alleged conduct occurred before then proceeding to consider whether, based on the allegations, the applicant poses a risk to the safety of children.

Trigger Offence

The Trigger Offence was alleged to have been committed between 1 and 3 pm on 11 October 2014 in an area with playground equipment annexed to a restaurant.
According to the Police Facts Sheet, the applicant entered the play area. Shortly after, a young girl aged 5 also entered the play area while her grandmother left her for a short time to obtain food. The young girl met the applicant who was inside the slide area of the play equipment. The applicant called the young girl “sister”. The applicant kissed the victim on the mouth, and it was alleged this was done “with some force”. The applicant and the victim began playing hide and seek on the equipment in the play area. After receiving her food order, the grandmother went back to the play area and called out to the victim. The Facts Sheet then stated: “After a short period of time the victim came out from the slide and told her grandmother what had occurred with the young person”. Exactly what the victim said is not reported in the Facts Sheet. The grandmother called out to the applicant to come out from the slide. There was no reply and the grandmother asked the victim to go and ask for the manager of the restaurant to come to the play area. The manager came to the play area and then contacted police after being informed of the incident. The applicant came out from the bottom of the slide and had a short conversation with the victim and grandmother, during which time the allegation was put to him. The applicant denied the allegation. The victim walked with her grandmother to her vehicle, and while that was occurring, the applicant left the restaurant on his push bike and returned home. The Facts Sheet then stated that the victim was interviewed where “she disclosed the above version of events”.
Again, exactly what was said by the victim when interviewed by Police is not articulated in the Facts Sheet. CCTV footage was collected, although the Facts Sheet did not disclose what the footage showed. A media release was created containing still images of the applicant and the CCTV footage. On 28 October 2014, 17 days after the alleged incident, members of the public contacted police to provide information.
On 30 October 2014, police attended the applicant’s address and asked questions of him. The applicant made some admissions, was arrested and then conveyed to the local police station where he entered into custody requirements. During an interview, assisted by a Dari interpreter, the applicant admitted that he had kissed the victim after she had fallen over. He was charged with two counts of “indecent assault person under 16 years of age” contrary to s 61M(2) of the Crimes Act 1900 (NSW), before being released on conditional bail pending appearance in the Children’s Court. We note from the Bail Decision on 30 October 2014 that the CCTV footage corroborated the applicant’s attendance at the location of the alleged incident.

Children’s Court proceedings

The transcript from the Children’s Court proceedings confirms that the charges of indecent assault were withdrawn on the basis that the applicant pleaded guilty to a charge of common assault (constituted by the applicant kissing the victim without her consent). Counsel for the applicant acknowledged the seriousness of the charges but submitted that no conviction should be recorded as the applicant was under the age of 16. Counsel also submitted that there were cultural differences operating and that the applicant was under the misapprehension that his conduct was acceptable as it would have been acceptable in his home country.
On the basis of the plea bargain, the Children’s Court Magistrate hearing the proceedings dismissed the matter with a caution pursuant to s 33(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

DCJ assessment

DCJ’s records state that the victim was confident when being interviewed. The reported information concerning the incident is set out below (noting that the information was not set out in the Police Facts Sheet):

“It was reported a boy inside the play equipment bubble at [location] made [the victim] touch his private parts. She explained how he, “Grabbed my hand and put it on his private parts and kissed me”. DISCLOSURE: [The victim] disclosed being molested by a unknown older boy. She said that he ‘got my arm and put it on his private part, kissed me, bit my lip and told me to look at his private parts’.”

In another DCJ record, the incident was described as follows:

“POI has asked the child to touch his private parts and show him her private parts. The POI has then grabbed the child’s hand and placed it on the outside of his jeans on his private parts (genitals). The POI has then kissed the child on the lips up to six times and at one stage bit the child’s lip.”

It was reported that the grandmother was shocked to see that the applicant was 15 years old as she had assumed he would be of a similar age to the child. The grandmother told the applicant that he was too old to be playing on the equipment. It is alleged that while the grandmother was talking to the manager, the applicant pointed at the child and said “Don’t you tell lies”, and then left before police arrived.
DCJ noted that the child was believed within her family, and her grandparents took her immediately to the local police station to report the incident. In DCJ’s assessment, the crime had been committed opportunistically by the applicant in circumstances where the victim was vulnerable because of her age and related functioning.
DCJ’s Field Assessment records also note that the applicant was listed as a “POI” (meaning a “person of interest”) as opposed to a “PCH” (meaning a “person causing harm”) because of the principle of “doli incapax”, which refers to the presumption that children between the ages of 10 and 14 in New South Wales are incapable of forming criminal intent due to a lack of understanding of “right and wrong”. DCJ’s records also noted that the applicant was 15 and had only recently arrived as a refugee from Afghanistan, and that it was possible that he was operating at a level that was less than a normal 15 year old and that his understanding of sexual abuse may have been limited due to his trauma history. Further, the record noted that it was unclear if the applicant had been sexually abused himself, or had experienced “atrocities” in Afghanistan to prompt the move to Australia. We hasten to add that there is no other evidence before the Tribunal of the applicant’s family or psycho/social history to support DCJ’s notes of a possible traumatic context for the applicant’s alleged conduct.
It is not possible to identify from DCJ’s records whether all of the matters disclosed by the victim were substantiated, or only some of them. DCJ’s records state that the “primary issue” which appears to have been described as “sexual indecent acts/molest” was substantiated.

The applicant’s account of events

The applicant has conceded that he kissed the young girl on the cheek, but denied that he kissed her on her lips or bit her lip. He also denied that he had placed the child’s hands on the outside of his jeans on his private parts.
When cross-examined about pleading guilty (in the Children’s Court proceedings) to kissing the child on the mouth, the applicant insisted that, in his mind, he had pleaded guilty to kissing the child on the cheek.
In both written submissions and his oral evidence, the applicant referred to the allegations and charges as a “misunderstanding”. In giving his oral evidence, he said that the incident in 2014 was “not proven”. In his letter to the Tribunal, he asserted the following:

“… nothing was proved in court, at [the location] they had a CCTV camera that showed that I did not assault anyone and proved that I was not guilty and the grandmother made a mistake.”

His written explanation of the incident included a statement that the child had fallen over and he had comforted her with a kiss on the cheek. When giving his oral evidence (before the Tribunal), he said that he was playing with other children as well as the victim. He estimated that he played with her for 5 – 6 minutes, and that she was very cute, like a little sister. He gave her a kiss on the cheek, saying that in Afghanistan it was very normal to cuddle and kiss children. He did not mention that the child had fallen over. He said that the grandmother had misunderstood what had occurred and when she was speaking with the manager and the police were called, the applicant “freaked out” and raced home on his pushbike.
Under further cross-examination, when asked why he had kissed the child, the applicant said that he had always loved kids and that, in Afghanistan, he always kissed them on the cheek, but said he had no reason for kissing the child. When asked whether the child had fallen over, he said that she did fall over and almost cried, but he picked her up and she was alright. He said that he was not changing his evidence. After being asked further questions (about his understanding of the plea bargain and why no conviction was recorded), the applicant said, for a second time, that he “didn’t see any reason for kissing the child”.
When asked whether he had asked the child to touch his private parts, the applicant’s evidence was that such behaviour was “not in me” and was not in his culture.
The applicant was asked what he meant by the following sentence in his written submissions:

“Although the charges were withdrawn, I fully recognise the gravity of the situation and the importance of addressing the underlying issues that could have led to such an allegation.”

The applicant said that he had not written the sentence, but had used AI. He nonetheless said that he agreed with the substance of the sentence and that his reference to “underlying issues” was that if he had been 18 or 20 and kissed a child, it would have caused him a lot of trouble, but since he was a minor, he didn’t receive the punishment. He said that the “underlying issues” was the kiss. When asked if he had done anything to address the conduct, he said that he would make sure that if he is around children, he would set boundaries and be mindful of his own actions, to make sure that a similar incident did not recur.
When asked if he had informed himself about child protection, the applicant said that he had learned generally from observing the creche facilities in the gym and from working in the creche before the Refusal Decision. He said that he had read dot points from the gym’s policy, that there could be “no photos, no phones, no food”. Otherwise, he conceded he had not done any child protection training but had read online about how to keep children safe.

Tribunal’s analysis and finding

The allegations made against the applicant are serious in nature, being allegations of sexualised behaviour engaged in opportunistically by him in a public place towards a very young child of 5.
There are aspects of the evidence that leave us with some questions. First, it is unusual for a boy aged almost 16 to enter the playground area and play on the equipment. We mention this because it could be suggestive of an intent by the applicant to prey on young children. We have, however, dismissed that as a possibility in light of the applicant’s oral evidence of his reason for being in the play area. We are of the view that the applicant’s conduct towards the child was not pre-meditated, but opportunistic. We accept his evidence that, having only recently arrived in Australia from Pakistan (or Afghanistan), he was enjoying his new-found freedom in this country and loved riding his bike after school to buy an ice cream. We accept DCJ’s assessment that it is possible the applicant may have been operating at a level that was less than a normal 15 year old, due to his trauma history. We gained the impression that he was somewhat naïve at the time, with limited understanding of the Australia culture. That is no longer the case, and the applicant now appears to have a reasonably sophisticated understanding of the cultural differences between Afghani and Australian life and laws.
Second, the words used to describe the kiss, namely, “with some force”, appear to have been used by the Police, or another person other than the young girl for whom the use of such language would be unusual. DCJ’s records do not contain a record of an interview with the victim and it is thus impossible to know the words she used to describe what had occurred. It is one thing for the child to say that the applicant had kissed her. It is another thing to say that he had kissed her on her lips six times or that he had bitten her lip. It is a most serious concern that, according to DCJ records, the child disclosed that the applicant placed her hand on his private parts (over his jeans) and asked her to show him her private parts (the Indecent Assault Charge).
Third, the applicant’s written evidence on his reason for kissing the child on the cheek cannot be reconciled with his oral evidence that he had no reason for kissing her. At the very least, this inconsistency makes it difficult for the Tribunal to determine the truth. Importantly, it indicates that the applicant’s credibility concerning aspects of the Trigger Offence is unreliable.
Taking into account the immediacy and details of the disclosure and that the disclosure was made to the child’s grandmother, then the police and was then repeated to DCJ officers without apparent significant derivation, and that the child was believed by her whole family, we are satisfied that some of the allegations are not groundless. We find, on the balance of probabilities, that the applicant kissed the child on the mouth without her consent and that the kiss was such that the child felt it was forceful. An uninvited kiss, carried out with some force, may well have caused psychological or emotional damage to the child. There is insufficient evidence on which to make a finding on the Indecent Assault Charge.
The applicant’s description of the Trigger Offence as a “misunderstanding” and statement that it had not been proven, indicates that he has not fully accepted responsibility for his actions. It also demonstrates that he sought to minimise his conduct and has not fully reflected upon the incident and the impact of his conduct upon the victim. Further, he has not engaged with therapeutic counselling which suggests he has not sought to rehabilitate with positive action to put protective strategies in place, and is therefore at risk of not adhering to appropriate boundaries concerning children in the future.

The 2022 Charges

We also look at the applicant’s offending in 2022 which involved violent behaviour on his part, for which he was charged and convicted.
He was charged with “Stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence)” contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) against his former partner sometime between 10.00pm on 26 March 2022 and 2.30am on 27 March 2023.
He was also charged with “Knowingly drive motor vehicle in manner that menaces another person” contrary to the s 118(2) of the Road Transport Act 2012 (NSW). Another charge that he “recklessly, furiously or at speed or manner dangerous – first offence” contrary to s 117(1)(c) of the same Act, was withdrawn.
The matter was first heard on 16 January 2023 in the Local Court, where the complainant gave evidence that around 3-4 weeks after breaking off her relationship with the applicant she had been socialising in a hotel/club and noticed the applicant following her in the establishment. Her evidence was that the applicant was following her in the club, staring at her the whole time, and that he was always within a few metres of her in the club. She said that when she was trying to leave an upstairs level, the applicant was near an exit so she couldn’t leave without him seeing her. If she went downstairs, he was also downstairs and she felt like it was a “chase” and he had blocked the exits. When she did leave the club, she and her friend saw the applicant writing a note on his car and then he placed the note and a shirt onto her friend’s car. Her evidence was that the applicant followed closely behind the complainant as she drove home in her own car and that he drove erratically and menacingly. In her words to the Magistrate:

“So we were still in the 60 zone, he was just flashing his horn, flashing his lights, beeping his horn, it was just the whole, pretty much the whole way was coming very close to me or going in to the other lane without indicating, cutting into mine, speeding up and braking in front of me.”

The complainant drove to her home and drove straight into the driveway and into the garage. She then woke her parents to tell them about what had occurred. The applicant drove into the driveway as well, and stayed there for around 5 minutes.
The matter was adjourned part-heard to 21 July 2023. At the same time, the Court heard the case of the applicant breaching the provisional AVO (discussed below). The applicant was convicted and directed to enter into a Community Correction Order for 15 months pursuant to s 8 of the Crimes (Sentencing Procedure Act) 1999 (NSW), commencing on 21 July 2023. He was disqualified from driving for 12 months.
The AVO was made enforceable against the applicant for the protection of his former girlfriend until 20 July 2025.

The applicant’s account of events

In his written submission, the applicant said that he was “crushed” to see his ex-girlfriend kiss another person on the dance floor in front of him and that he tried to talk to her, and then drove to her parents’ house to try and talk things out with her. He sent a text message to her and she replied, saying she had called the police. The applicant then called her father who asked him to leave and not contact his daughter again. A few days later, while at his workplace, the police arrested and charged him.
In the Tribunal hearing, the applicant said that his relationship with his girlfriend had ended about one week before he encountered her at the club. He said that he was “heartbroken” to see her kiss another person. He was sad and upset, and wanted to talk to her and to her father. He said he left a note asking why they had broken up, and drove to her house. Once her father told him to “go home and leave it”, he did so. He said he cried and went home. He was shocked that, on the Monday after the weekend, whilst at work, the police arrived and accused him of stalking and intimidating his ex-girlfriend.
Under cross-examination, he denied that he was beeping his horn or flashing his lights and denied that he was driving in a menacing fashion or recklessly. He denied that he was stalking her in the club. He did acknowledge that he had lost control of his emotions, but distinguished this by saying that he was in control of himself. When asked whether he thought anything he had done was unlawful, he responded that he didn’t think so at the time, but that he had learned from his mistake. He said that he has come a long way, has undertaken an anger management course to control his emotions and has learned that it was wrong to force people to talk. He said he has learned to move on and respect their decision.

Tribunal’s assessment

The 2022 Charges are regarded as serious since there was an escalation in the applicant’s behaviour in following his former girlfriend to her home in his vehicle. He was found to have driven his vehicle dangerously and with the intent of menacing her, and she feared for her physical safety.

Breach of provisional AVO

Before the 2022 Charges were first heard in court, the applicant was arrested and charged with contravening the AVO on 23 December, 2022, to which he pleaded guilty.
The circumstances are set out in the Police Facts Sheet. Briefly, the applicant left his place of work to buy a t-shirt for Christmas celebrations at a large retail store. He knew that his former girlfriend worked in a shop in the centre near the retail store. After purchasing the shirt, the applicant left the front entrance of the store, in the direction of the shop where his girlfriend worked. She did not see him, but a witness who recognised the applicant informed her, following which she called the police. The AVO stipulated that the applicant could not be within 150 metres of any place where his former girlfriend worked. When arrested, he said that he thought he was at least 200 metres from the place where his former girlfriend worked. He was told the distance was 90 -100 metres, and he had therefore breached the AVO.

The applicant’s account of events

The applicant’s evidence to the Tribunal was that his breach was “accidental” because he thought the retail store was outside the 150 metres restriction. He maintained that he thought the distance was more than 150 metres and that he did not know it was only about 70 metres.
Under cross-examination, he acknowledged that his behaviour did not show that he had good control.
As the applicant’s breach of the AVO occurred while subject to court orders (a breach of his bail conditions pending hearing), it is regarded as serious. It demonstrates that the applicant acted impulsively and without regard to his obligations to the court. That impetuousness prevailed over any other consideration, demonstrating concerning risk-taking behaviour.

The 2023 Charges

On 9 August 2023, just over two weeks after his conviction for the 2022 Charges and entering into a Community Correction Order, a condition of which was that he was not to commit any offences, the applicant was charged with “Use carriage service to menace/harass/offend”, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). He was also charged with “Intentionally or recklessly destroy/damage property domestic violence related”, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), although that charge was ultimately dismissed.
The facts were that the applicant was accused of sending a threatening text message to one of his younger brothers, and damaging a wardrobe, following an argument between the brothers. The younger brother called police, to calm things down, and did not want the applicant to be arrested and charged. The applicant told police that he punched the wardrobe (which was his own property) as he did not want to hit his brother. He also told police that, in sending the text message, he was trying to scare his brother and he wasn’t going to do anything. The applicant did not want to participate in an electronically recorded interview with police.
The matter came before the same Magistrate in the Local Court who had heard the 2022 Charges. On 15 July 2024, the applicant was found guilty without proceeding to a conviction. He was ordered to pay security in the sum of $300.00 and to enter into a good behaviour bond for 12 months. He was also subjected to an AVO for the protection of his younger brother, expiring on 14 July 2024.

The applicant’s account of the incident

The applicant’s written submissions gave a detailed account of the incident. Overwhelmingly, the applicant blamed his brother for the argument, saying he was disrespectful to him and had made inappropriate comments about the applicant’s girlfriend. The younger brother had a “major argument” with their mother who explained that she and her partner could not have him live with them anymore because of his behaviours. The younger brother begged the applicant to allow him to live with the applicant. The argument between them involved the younger brother’s refusal to pay for half of the bond on the premises they were renting. The applicant sent text messages to him, culminating in his message that read “I will #### you up”. According to the applicant, his message meant that he would kick his brother out, leaving him with nowhere to live.
Both brothers attended the court hearing. The younger brother wrote a letter to the court, saying that he was in the wrong and asking the matter to be withdrawn, however the court proceeded to find the charge proven.
The applicant’s oral evidence was consistent with his written submissions, although he conceded that he had not shown good control. His explanation was that the brother was causing him too much trouble. He said that he didn’t mean his text message to be a threat. He also said that they were both yelling at each other and he was emotional when he punched the wardrobe. The applicant did say that he does take accountability for the incident now.

Tribunal’s assessment

This further domestic violence related conviction augments our assessment that it is a matter of serious concern, particularly as the offence was committed so soon after the applicant’s previous conviction and entering into the Community Correction Order under which he must not commit another offence.
This incident again demonstrates the applicant’s loss of emotional control when dealing with conflict.

Allegations of reported domestic violence 2019-2020

Records provided by the police disclose that the applicant was involved in domestic violence related incidents with his family members on three occasions, 3 October 2019, 1 June 2020 and 30 August 2020.
The incident on 3 October 2019 involved another younger adult brother (not the same brother involved in the 2023 Charges) and the applicant arguing over domestic cleaning chores. The younger brother alleged that the applicant had punched him five times in the back, but there were no visible injuries. It is a matter of concern that the report discloses that two children (even younger brothers of the applicant, aged around 13 and 14) witnessed the altercation, stating there had been pushing between the two brothers but no assault. The report noted that the police did not hold fears for the victim, and took no further action.
The incident on 1 June 2020 involved the same adult brother, who alleged the applicant assaulted him. The applicant’s sister observed the brothers pushing each other but did not see the applicant slap the victim’s face. The applicant spoke with police and denied slapping his brother. As a result of conflicting versions, and the witness stating that no assault took place, the police took no further action. There were no other witnesses to the incident.
In a third incident with the same brother on 30 August 2020, a verbal argument ensued in which he and the applicant both claimed ownership of a shirt. Both parties were alleged to be pushing and shoving each other and it was alleged that the younger brother had several blemishes on his face that split open and began to bleed. The police attended and the younger brother said that the applicant had slapped him to the face and left the location before police arrived. The police report noted there were no visible injuries on the victim’s face. The report stated that the police had fears for the safety of the applicant’s brother, but no further action was taken.

The applicant’s account of events

The applicant’s oral evidence in these proceedings was that the incidents all involved verbal arguments. He denied hitting or punching his brother, insisting it was just “yelling”. He said that he had done the online Anger Management course to show the Children’s Guardian that he has control of his anger. He estimated that he had spent around 20 hours during a period of two weeks to complete the course because he was also working at the time.

Tribunal’s assessment

In assessing the applicant’s risk, we have given a reasonably moderate amount of weight to the reported but untested and therefore unsubstantiated allegations of domestic violence related incidents, noting that no charges were laid against the applicant. However, it is a matter of concern that one of the reported incidents may have occurred in the presence of children.
While the charges and convictions for domestic violence related incidents towards adults are of lesser seriousness, considered cumulatively with the Trigger Offence, we conclude that the applicant has caused harm to a child and adults. The harm caused includes sexual, physical and psychological and the offences are therefore regarded overall as serious.
In our overall assessment of the applicant’s risk, we place a substantial amount of weight on the seriousness and repetitive nature of his domestic violence related convictions.
We also place substantial weight on statements he has made that seek to minimise his conduct and find fault with others, since they demonstrate he has not fully accepted responsibility for his conduct and has limited insight into his conduct and the effect upon others.

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

The Trigger Offence was almost 11 years ago. However, the applicant’s more recent offending conduct with respect to the 2022 Charges and the 2023 charges occurred during the last 2-3 years.
The applicant has worked consistently with his current employer for just under 4 years and has, by all accounts from his employer and clients, conducted himself to a high standard of performance and ethical behaviour.
Regrettably, his lapses in conduct associated with the 2022 and 2023 Charges, as well as the domestic violence related incidents reported to police in 2019 and 2020 are a matter of grave concern and those matters are assessed in these Reasons under s 30(1)(a) and s 30(i) of the Act.

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

The applicant was aged 15 and 10 months at the time of the Trigger Offence.
At the time of the 2022 Charges, the applicant was 23.
At the time of the 2023 Charges, the applicant was 24.

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)

At the time of the Trigger Offence, we understand the child victim was 5 years of age. In view of her age, and that she was momentarily unsupervised, the child was vulnerable.
At the time of the 2022 Charges, the complainant was 19 years of age. There is no evidence to suggest that she was a person in need of additional protection or support to prevent harm, and she was accompanied at all relevant times with her friend. However, we accept that she may have been emotionally vulnerable since she had broken off her relationship with the applicant not long before the incident. She was also at least 3 or 4 years younger than the applicant who is physically stronger by reason of both his gender and occupation as a personal trainer.
At the time of the 2023 Charges, the complainant was 20 years of age. Having regard to the DCJ material, it is likely that the complainant had experienced a history of trauma associated with his departure from Pakistan and refugee status (alongside his brother, the applicant), and from that perspective was emotionally vulnerable. This may not have been a matter that the applicant could readily discern, given their shared experience, and noting that the applicant appears to have not engaged in therapeutic counselling to talk through his refugee experience and explore areas of vulnerability that may be contributing to his lapses in judgment and conduct. However, the applicant was older than his brother by four years and in a position of power since he was permitting his brother to live in his home.

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)

The age difference between the applicant and the young child is around 11 years. The applicant and the child had not previously met.
The age difference between the applicant and his former girlfriend is around 3-4 years.
The age difference between the applicant and his younger brother is around 4 years.

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

It would have been obvious to the applicant that the victim, who was 5, was a child.

The person’s present age: s 30(1)(g)

The applicant is currently 26 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)

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)

We note that the Bail Decision dated 10 August 2023 associated with the 2023 Charges cited a number of matters relevant to the applicant’s risk, concluding that, if released from custody, he would “commit a serious offence”. The matters cited included the applicant’s background and criminal history, his history of domestic violence offences, the nature and seriousness of the offence being domestic violence related and that he had previously breached an AVO whilst on bail. Whilst the applicant was, indeed, released on bail, the focus on domestic violence offences is more prevalent today. Coercive control legislation recognises that coercive and controlling behaviour is at the heart of domestic abuse which may involve acts of assault, threats, humiliation or intimidation. It may include tracking a person or emotionally threatening behaviour.
It was submitted on behalf of the Children’s Guardian that a person who lacks insight into their conduct is more likely to repeat their conduct, citing DJY v Children’s Guardian [2023] NSWCATAD 241 at [98] – [101]. We accept that submission and note the following.
The applicant’s written submissions show a tendency to minimise his culpability and to externalise blame which demonstrates a lack of insight into his conduct and may lead to a failure to be aware of situations that are high risk. By minimising his behaviours, and deflecting blame onto others, the applicant appears to be unable to understand the significance of his actions. This tendency to minimise may also impact upon his ability and willingness to engage with treatment, as demonstrated by his statement that he doesn’t need to do any courses (addressed below). We cannot ignore the likelihood that the applicant may therefore engage in further domestic violence related behaviour.
There is an inconsistency between the applicant’s avowed passionate determination to maintain and advance his career, to the point of stating to the Tribunal that he would be happy to do any courses required, yet also saying he didn’t think it was necessary to undertake any formal training and/or therapeutic counselling. We have wrestled with this inconsistency. In response to a question whether he had done any courses or programs, the applicant stated in his Second WWCC Submission (29 January 2023, before conviction in July 2023): “I do not need to take any courses. I have friends and family to support me if I need it and also I am very independent and I have a good control on myself.” He also stated, in response to a question about courses or training or treatment, that he did not attend any courses and said: “I am all good and moving on with my life.” We note that he makes no mention of the effect of his conduct upon his former girlfriend, stating that she “had issues”. This demonstrates a lack of insight.
He indicated in his Third WWCC Submission that through a process of learning and self-improvement, relying upon people around him whom he regards as role models for support and guidance to draw from their “collective experience”, he would avoid repeating past mistakes. We do not doubt that the applicant has immersed himself in an environment of positive self-improvement (both physical and mental). However, we are of the view that, as a preventative strategy, this approach is not sufficiently robust to cause the Tribunal to have confidence in the applicant’s ability to regulate his emotions. Moreover, it does not target the applicant’s own experiences. He acknowledged several times during his oral evidence that he had not been in control of his emotions on a number of occasions. He would be well advised to explore and reflect upon the triggers for his emotional outbursts with an appropriately qualified psychologist, to understand the triggers for his behaviour, and put protective strategies in place for managing his emotional regulation and impulse control, and to guard against the possibility of recurrence.
The applicant has completed an online Anger Management Course. However, that course relies upon self-reporting, with no active questioning into behaviours such as problems with emotional instability or impulse control. It is clear that the applicant prefers to self-regulate. This may suggest an arrogant or controlling nature, and a rejection of any suggestion of therapeutic counselling. There is no evidence that the applicant has sought, following any of his convictions, face to face counselling services with a qualified psychologist. One online Anger Management Course, and the applicant’s proposed approach, to learn informally from his mentors in the gym where he works, is not sufficiently robust as protective factors against repetitive domestic violence-related behaviour.
There is a further inconsistency between, on one hand, his motivation to drive his successful career and, on the other hand, his relatively recent and repeated risk-taking activities. It is somewhat surprising, despite undergoing what must have been a “harrowing” experience associated with the Trigger Offence, and another equally harrowing experience of being charged for stalking his former girlfriend and being subject to an AVO for her protection, that he nonetheless took the risk of breaching the AVO. It indicates that the applicant will take unnecessary risks. Despite his strong motivation to be successful, he has lapses where he is impetuous and volatile. It also demonstrates that he lacks insight and understanding into the consequence of his actions and does not have the ability, without therapeutic treatment, to mitigate against risks. Consequently, we consider the risk of repetition of the applicant’s domestic violence related offending conduct is real.
One of the key submissions put forward for the applicant is that his employer requires him to have a clearance, and that without a clearance, he will lose his job. However, we have concerns that the applicant has only a scant knowledge of child protection.
The employer reference from Mr HW attached to the First WWCC Submission stated that the applicant had undertaken child protection training or study relevant to working with children but no details of that training/study was provided. The employer reference from Mr MD attached to the Second WWCC Submission stated that the applicant was competent and compliant with the requirements to support the safety and support with children within the business (of the gym), but no details of those requirements relevant to working with children were provided. In light of the applicant’s evidence (that he had briefly read the gym’s policy regarding children, possibly in connection with the creche facility) that “no phones, no cameras, no food” were permitted within the creche facility, and since no details of child protection training or study were otherwise provided, we conclude that skim-reading a policy does not provide adequate knowledge or training in the matters relevant to child protection training. No document concerning the gym’s child protection policy and procedures/practice and no information relating to those matters, was provided to the Tribunal.

Had the applicant’s employer known about the Trigger Offences, more formalised training may have been undertaken to assist the applicant in his knowledge of relevant child protection principles, and thus understand the responsibilities of the gym to ensure the safety and well-being of children, and his responsibility as an employee of the gym, to fulfil his duties as an employee, to ensure the safety and well-being of children.
It is not mandatory for the applicant to provide expert or medical evidence (such as a psychologist’s evaluation) about his risk to the safety of children for the purpose of an application for administrative review, and the failure to provide such evidence is not fatal to an application. However, in the circumstances of this case, it is a matter that this Tribunal has taken into account. In circumstances where the applicant asserted that it was critical for his career to have a clearance, and that he would lose his job without it, it defies logic that he would undertake an Anger Management course and yet not address his obvious lack of education and knowledge in child protection and dismiss the benefit of therapeutic counselling.
As already explained, the sole object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have a clearance: s 3 of the Act. We understand that the applicant is not engaged in child-related work and thus it could be argued that he does not require a clearance. However, it is the policy of his employer to require the applicant to have a clearance. If that is a mandatory requirement, it makes sense that an employer would ensure that training is provided to staff on the gym’s child protection policies.

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

At the time of the hearing in these proceedings, the AVO against the applicant for the protection of his former girlfriend was still extant, due to expire on 20 July 2025.
Also at the time of the hearing in these proceedings, the AVO against the applicant for the protection of his younger brother (the complainant in the 2023 Charges) was still extant, due to expire on 14 July 2025.
The applicant’s criminal history notes that provisional AVOs were issued against the applicant for the protection of another younger brother (reported allegations that did not result in charges) and his mother (also reported, but did not result in charges).
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)

The application is supported by the applicant’s letter to the Tribunal, a letter from the solicitor who represented him with respect to the Trigger Offence, and character and professional references from his employer and clients of the gym. Before the Children’s Guardian made the Refusal Decision, the applicant provided three WWCC submissions, character references and a response to the s 19 notice identifying a number of risk factors under consideration.
The letter from his solicitor who represented him in relation to the Trigger Offence offered some observations pertinent to the applicant’s
“current situation”, although he noted that he had been “significantly hampered by the passage of time and the paucity of information about the procedural history of the matter”. The solicitor noted that the 2 counts of Indecent Assault were withdrawn, in exchange for the applicant pleading guilty to one count of Common Assault, a materially less serious charge, since the applicant pleaded guilty to kissing the child without her consent, after she had fallen. This Tribunal has drawn its own conclusions from the material before it, to conclude there is not enough evidence to make a finding on the Indecent Assault Charges. However, we regard the Common Assault Charge as serious, being sexual in nature, and that it likely caused psychological harm to the child.
A character reference from Ms EL, a psychologist, who has known the applicant for 3 years, attests to his good character, integrity and reliability. She said that she had observed his ability to remain calm under pressure and approach challenges with determination and a positive attitude, showing resilience and maturity in difficult situations. Her letter states that the applicant provides a stable and secure environment for his brother who was involved in the 2023 Charges, but makes no mention of those matters. Ms EL’s letter also makes no mention of the Trigger Offence, or the 2022 Charges. Her letter is provided not in her capacity as a psychologist (although her signature block references her work as a family and domestic violence specialist) but as a character reference. We place only a small amount of weight on this reference.
A reference from Mr MD, the applicant’s employer, speaks of the applicant’s character, in particular his immense work ethic, passion for people and success and ability to learn and grow and receive feedback. Under cross-examination, the applicant conceded that he did not disclose the Trigger Offence to his employer, however this referee did know about the 2022 Charges and, indeed, was in the gym when the police arrived to arrest the applicant.
A reference from Ms PC attests to the applicant’s tenacity in his approach to be the best version of himself. This referee has trained with the applicant and also worked alongside him. She states that the applicant is a keen learner and is always quick to remedy mistakes and be humble with his remorse. The applicant conceded that Ms PC did not know about the Trigger Offence, but she knew about the 2022 Charges concerning his former girlfriend and was in the court when the matter was heard. His evidence was that she also knew about the 2023 Charges concerning his brother.
Another reference from Ms SA states that she has known the applicant for more than 3 years, and attests to his reputation for being well respected throughout the gym and that he communicates and instructs men and women of all ages with kindness and patience. Ms SA said she could not speak highly enough of the applicant as a dedicated and driven young man who has navigated his way through different circumstances. This reference does not refer to specific circumstances where he has “made a few mistakes” but said that the applicant is very remorseful about how he handled himself. The applicant conceded that Ms SA did not know about the Trigger Offence but knew about the 2022 and 2023 Charges.
A reference from Mr PC attests that he has known the applicant for more than 2 years, through his gym membership. He described the applicant as a “passionate man”, a refugee from Afghanistan, and a person with exemplary behaviour and manners with all gym members. This reference appears to refer to the 2022 Charges and states that the applicant is very remorseful that the circumstances had compromised his employment, his integrity and his own self-esteem, as well as making a person feel threatened by him. He states that the applicant’s intention was “honest and transparent” and that “at no time does he mean to harm or hurt anyone”. The applicant conceded that Mr PC had no knowledge of the Trigger Offence.
A reference from Ms MD states that she has known the applicant for 4 years and she witnessed him being “passionate about fitness by encouraging and working with people to look after themselves and their health”. She stated that she believes the applicant to be of a sound character. The applicant said that he told Ms MD “everything”, but there is no mention in her reference of any of the applicant’s offending.
Overall, we place a small amount of weight on these character references as they only refer to the applicant’s charges and convictions obliquely, such that the Tribunal has no confidence that the referees understand his criminal history and potential risk.

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

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)

No other matters have been raised by the Children’s Guardian.

Overall evaluation of risk

It was evident to the Tribunal that the applicant has made a vigorous attempt to assimilate into life into Australia after what must have been a traumatic history before, and associated with, his transfer as a refugee from Afghanistan.
As the eldest of five children, he appears to have shouldered responsibilities towards his siblings, after arriving in Australia. Those responsibilities were possibly beyond his capabilities during his teenage and young adulthood years which has caused him personal stress, resulting in periods of loss of control of his emotions. We make these observations from the material before us, without the benefit of any psychological assessment which may well have assisted in our determination of the risk that the applicant poses to the safety of children. Otherwise, the applicant is to be applauded for his extraordinary self-confidence and success in training others to reach improved levels of fitness. He is ambitious (by his own description and many of his referees) and has forged a successful career in personal training, favourably impressing his employers and clients associated with the gym where he works. This is a powerful protective factor in the applicant’s favour.
However, it is heavily counterbalanced by his recent domestic violence related offending. In determining whether the applicant poses a risk to the safety of children, we have considered the seriousness and recency of the allegations against him, as well as his relevant criminal record and conduct.
The applicant’s criminal record demonstrates aggression and an underlying intent to use force to resolve a situation of conflict with others. Whilst the offending conduct in in 2019, 2020, 2022 and 2023 involved adult victims and not children, it demonstrates that the applicant has engaged in a pattern of violent behaviour when dealing with conflict, and this is very recent. We hold concerns that the applicant is at risk of repeating that conduct, and in the presence of children.
The applicant has re-offended despite previous criminal justice intervention, and has a minimal crime-free period.
The applicant’s tendency to minimise his conduct and find fault with others, demonstrates he has not fully accepted responsibility for his conduct and has limited insight into his conduct and the effect upon others.

Conclusion

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.
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. However, we have decided to address relevant issues, having regard to the evidence before the Tribunal.

Reasonable person and public interest tests

Reasonable person

No submissions were advanced on behalf of the applicant to specifically address the reasonable person test. Under cross-examination, the applicant conceded that he did not disclose the Trigger Offences to his employer or any of his referees.
We are of the view that a reasonable person, with knowledge of the Trigger Offence and the applicant’s recent domestic violence offences, and knowledge that the applicant offended on more than one occasion whilst subject to court orders, would not leave their children unsupervised with him if he was engaged in any child-related work. The reasonable person would also have regard to the two AVOs to which the applicant was still subject at the date of the hearing.
The reasonable person test is therefore not satisfied.

Public interest

It was submitted on behalf of the applicant that the refusal of a clearance would cause undue hardship to him, affecting his financial stability, and that it would cost the applicant the applicant the career that he loves and has worked extremely hard for. In his oral evidence, the applicant said that he supports his family, and this is laudable.
It was also submitted that the applicant’s commitment to community engagement and social responsibility underscores his genuine effort to create a stable and fulfilling future for himself and those around him. It is clear, from his references, that the applicant has made a determined effort to integrate into Australian life and culture in a meaningful way, and to contribute positively to the health and well-being of clients at the gym.
These matters are particularly noteworthy, having regard to the applicant and his family’s traumatic refugee history.
Whilst we understand the applicant’s work may from time to time involve children or groups of children under the age of 18, he is not engaged in child-related work in the sense provided for under s 6 of the Act. In other words, we understand that his work does not involve direct contact with children and that direct contact is not a usual part of and more than incidental to his work.
The requirement by the gym’s management for him to have a clearance as a mandatory qualification does not appear to be a statutory requirement. It appears to be a commercial or policy decision by the gym’s management. There is no evidence to suggest that the applicant could not obtain employment as a personal trainer or fitness coach elsewhere, and to provide his services to adults.
As explained earlier in these Reasons, the Act is protective, and not punitive, in nature. As confirmed by the High Court of Australia in ICM at [20], in proceedings under the Act, the “public interest” must be considered in light of the paramount consideration under that Act, namely, to ensure the protection of children from sexual or physical harm. Whilst the character references attesting to the applicant’s work ethic and devotion to public health are commendable, they do not overcome the greater risk to be taken into account, namely the protection of children from harm and we have found the applicant does, at this point in time, pose a risk to the safety of children.
Having regard to the Trigger Offence and the recency of the domestic violence offences, the public interest weighs against the applicant being given a clearance. The public interest test is therefore not satisfied.

Orders

The decision of the Children’s Guardian dated 25 September 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

Decision last updated: 15 September 2025

Medium Neutral Citation:	GQX v Children’s Guardian [2025] NSWCATAD 230
Hearing dates:	15 May 2025
Date of orders:	15 September 2025
Decision date:	15 September 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member A Limbury, General Member
Decision:	The decision of the Children’s Guardian dated 25 September 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(1)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) — Tribunal to assess whether applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Road Transport Act 2013 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BHY v Children’s Guardian [2015] NSWCATAD 91 BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CRG v Children’s Guardian [2017] NSWCATAD 295 CTE v Children’s Guardian [2018] NSWCATAD 28 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAI v Children’s Guardian [2017] NSWCATAD 308 DJY v Children’s Guardian [2023] NSWCATAD 241 Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 DYH v Public Guardian [2021] NSWCATAD 136 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 McDonald v Guardianship and Administration Board [1993] VR 521 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children’s Guardian [2017] NSWCA 174 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GQX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Curtin, Counsel (Respondent) Solicitors: Walker Criminal Lawyers (Applicant) Crown Solicitor(Respondent)
File Number(s):	2024/00368308
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 7 November 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.