GSX v Children's Guardian

[2025] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GSX v Children’s Guardian [2025] NSWCATAD 190

Hearing dates:

23 June 2025

Date of orders:

31 July 2025

Decision date:

31 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Principal Member
R Royer, General Member

Decision:

(1) The decision under review is set aside.

(2) In substitution, the Applicant is to be granted a clearance under s 18(2) of the Child Protection (Working with Children) Act 2012.

Catchwords:

ADMINISTRATIVE LAW - working with children - review of decision to cancel working with children clearance check – risk assessment - decision set aside

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GSX (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
C Palmer (Respondent)

Solicitors:
Clowry & Associates (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00420369

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the disclosure by way of publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. GSX (the Applicant) seeks review of a decision of the Children's Guardian (the Respondent) to cancel their working with children check clearance (WWCCC) under s 27 of the Child Protection (Working with Children) Act 2012 (the Act).

2. The Respondent cancelled the WWCCC on the grounds the Applicant poses a risk to the safety of children as a result of the Applicant’s conduct in relation to their two children and related domestic circumstances.

3. Given the nature of the proceedings an order was made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that, except for expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in the proceedings or referred to in the material lodged in the proceedings is prohibited. The pseudonym 'GSX' has been used for the Applicant's name.

4. For the reasons that follow we are not satisfied the Applicant poses a risk to the safety of children and we have decided to set aside the Respondent’s decision to cancel the Applicant’s WWCCC.

Material before the Tribunal

5. The Applicant provided: the application for administrative review attaching the decision of the Respondent; an affidavit sworn 16 March 2025 with attachments; and a bundle of documents that included WWCCC references from a psychologist and a social worker and written submissions, to the Respondent and the Tribunal.

6. The Applicant gave oral evidence and was cross examined at the hearing on 23 June 2025. Both parties made oral submissions at the hearing.

7. The Respondent provided two bundles of documents, one bundle of 215 pages filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and the other bundle of 433 unpaginated pages of supplementary evidence, as well as written submissions to the Applicant and the Tribunal.

Role of the Tribunal

Jurisdiction

8. Section 27(2) of the Act provides that applications may be made to the Tribunal for administrative review of a decision to cancel a WWCCC. The Tribunal is satisfied it has jurisdiction to hear and determine the Applicant’s application: see ss 9 and 55 of the ADR Act and s 30 of the NCAT Act.

9. The Tribunal may make orders including to affirm the decision of the Respondent to cancel the WWCCC, or to vary the decision, or set it aside and make a decision in substitution, or set it aside and remit the matter to the Respondent for reconsideration: see s 63(3) of the ADR Act.

10. On 17 October 2024, the Respondent made the decision to cancel the Applicant’s WWCCC. The Applicant lodged their application for administrative review of the decision with the Tribunal on 11 November 2024, within time.

The Applicant’s case

11. The Applicant submits they are of good character, they have been open and transparent with authorities and can be trusted to work with children such that they should be granted a WWCCC.

12. The Applicant submits a November 2021 incident (the incident) where the Applicant slapped their eldest child (Child 1) was an isolated event for which they are remorseful and that they immediately and knowingly self-reported to people who held mandatory reporting obligations.

13. The Applicant denies other allegations relating to inappropriate behaviour including excessive discipline towards Child 1, alleged failure to report or otherwise manage their spouse’s alleged inappropriate behaviour including excessive discipline towards Child 1, and consequential harm to their other child (Child 2).

The Respondent’s case

14. The Respondent submits the correct and preferable decision is to affirm the decision to cancel the Applicant’s WWCCC. The Respondent submits it is not in the public interest to grant the WWCCC nor would a reasonable person allow their child to have direct unsupervised contact with the Applicant.

15. The Respondent submits the Applicant poses a risk to the safety of children as a result of the incident and because of the possibility of other alleged conduct of the Applicant which is not groundless.

Legislation

16. The object of the Act is to protect children by requiring people to hold a WWCCC if they engage in child-related work: see ss 3 and 28(1) of the Act. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations under the Act: s 4 of the Act.

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

18. Section 23(1) of the Act requires the Respondent to cancel a WWCCC if satisfied a person poses a risk to the safety of children and s 5B of the Act provides that a reference to a “risk to the safety of children” is a reference to “a real and appreciable risk to the safety of children”.

19. Section 30(1) of the Act sets out the considerations the Tribunal must take into account when determining the application for administrative review:

(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.

20. Section 30(1A) prohibits the Tribunal from making an order that enables a person to work with children unless 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.

Consideration

21. The issue for determination in this review is whether the Applicant poses a real and appreciable risk to the safety of children and, consequently, whether the correct and preferable decision is to affirm the cancellation of the Applicant’s WWCCC.

22. This determination is to be made on the balance of probabilities and neither party bears an onus of proof in relation to an application for review under s 27 of the Act: see BJB v The Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].

23. The Tribunal’s approach to fact finding was set out in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, after discussing M v M (1988) 166 CLR 69, as (at [33]):

“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.”

24. This approach was confirmed by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

25. In CXZ v Children's Guardian [2020] NSWCA 338, the assessment of risk was clarified as being a single process (at [7] and [54]) and Simpson JA described that process (at [57]) as:

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

26. The Tribunal is therefore to evaluate the accumulated weight of the allegations in terms of risk, including considering factors such as the seriousness of the allegations, the strength of the evidence as well as the relevance of the conduct to the risk to the safety of children.

The Applicant’s relevant circumstances

27. The Applicant has worked in child and family services for approximately 20 years. The Applicant was last granted a paid WWCCC on 1 December 2020, having held relevant clearances since 2005. The Applicant has no criminal record and their professional record is unblemished.

28. The Applicant has two children who both have special needs. Child 1 is the elder child, is 12 years old and has diagnoses including: ASD Level 2, ADHD Combined Type, Generalised Anxiety Disorder (Moderate-Severe), PICA, Sensory Processing Disorder and Dyslexia. Child 1 engages in challenging behaviours of self-harm and harm of others including: absconding, hitting, kicking, banging their head against hard surfaces, cutting, biting, swearing, spitting and throwing.

29. Child 1’s challenging behaviours include meltdowns where Child 1 self-harms, harms others and damages property. Child 1’s behaviours are such that all sharp household items are kept in a locked toolbox to prevent Child 1 harming themselves or others.

30. Child 2, the Applicant’s younger child is 10 years old and has diagnoses including ASD Level 2 and ADHD Combined Type.

31. Following the incident in November 2021 where the Applicant slapped Child 1, on 14 June 2023 the Respondent imposed an interim bar on the Applicant under s 17(1) of the Act and advised it was conducting a risk assessment. The Respondent made the decision to cancel the Applicant’s WWCCC on 17 October 2024.

32. On 1 April 2022 an apprehended domestic violence order (ADVO) was issued against the Applicant to protect the Applicant’s children. The ADVO initially contained a ‘no contact with children’ order which was removed by the Court on 13 April 2022. The children were placed into the care of another family member during the period the ‘no contact order’ applied. A final ADVO was made without admissions and by consent on 11 May 2022. The ADVO expired on 10 May 2024. No breaches of any relevant ADVO occurred while it was in effect.

Assessment of evidence and findings

Relevant assessment

33. The Respondent relies on a 7 December 2022 report (the report) of a safeguarding unit within the Applicant’s former employer. No evidence was led as to the context of the report and the basis on which the report was prepared and conducted is not entirely clear to the Tribunal beyond it being prepared in a regulatory context. In submissions the Tribunal was informed the report was undertaken by the Applicant’s then employer under the employer’s child safeguarding obligations.

34. The Applicant contends there were workplace issues underlying the findings made in the report. We do not consider such issues to be relevant in the circumstances and have taken the report on its face.

35. The report is not an expert report and contains no details of the qualifications and experience of the investigator who prepared the report. The investigator did not interview the Applicant’s children and instead relied on interview notes conducted by others. The report’s analysis appears to be based on giving preference to evidence other that of the Applicant, including those notes and also documents relating to a risk assessment performed by a government agency.

36. The report draws inferences as to inconsistency in evidence that are not readily apparent to a reader. For example, in respect of Allegation 2.1 that the Applicant placed soap in the mouth of Child 1 the report stated:

“…[The Applicant reported that both [the Applicant and their spouse] have offered [Child 1] hot sauce on a toothpick in response to [Child 1’s] swearing because “[Child 1] previously tried to eat the soap they’d given [Child 1]”. This comment made by [the Applicant] would allude to [the Applicant] placing soap into [Child 1]’s mouth as a method of discipline when [Child 1] is “out of control” and in response to [Child 1’s] swearing. This statement by [the Applicant] also contradicts [the Applicant’s] denial of ever using an adverse substance (soap) into [Child 1]’s mouth.” (emphasis added)

37. In our view, the inference made is of concern because before the Tribunal, the Applicant’s reference to previous eating of soap could relate to Child 1’s PICA disorder, considered below with respect to this allegation (at [55]-[58]). Also, in respect of the hot sauce allegation, the report reduces the “credibility” of the Applicant’s evidence given “the conflicting accounts [the Applicant] has provided relating to this allegation” when it is not apparent any such in consistency has occurred.

38. Further, in respect of the allegation the Applicant sat on Child 1 as a disciplinary method, the report stated:

I place more weight on the evidence provided by [Child 1]. It is not within [Child 1]’s interest to make up the alleged behaviour and research shows that children are more likely to try to protect a parent (Herman, 2015).

39. However, that part of analysis in the report does not address the earlier observation that the school principal in justifying why some allegations made by Child 1 had not been subject to mandatory reporting, had stated Child 1 “is known to exaggerate stories”.

40. We do not consider it appropriate to rely on the findings of the report, as the Respondent has contended we should, and that the Respondent actually relied on in making its decision, given our concern as to how the report conducted its analysis and made findings. Instead, we will consider the material before the Tribunal and make any necessary findings in considering whether the Applicant does or does not pose a risk to the safety of children.

41. As to the evidence of the Applicant, we consider the Applicant to be a witness of credit. In giving oral evidence the Applicant was open and candid in their answers. The Applicant appropriately conceded to issues not to their benefit such as the circumstances of the slap. As a result, we prefer and accept the Applicant’s evidence as to their conduct and the circumstances of relevant events where there may be inconsistency.

References

42. In a WWCCC reference of 12 September 2024, the Applicant’s treating psychologist characterised the Applicant as: “[a] calm, patient and caring individual. Despite challenging situations at home, [they have] always conveyed a high concern, priority and care for [their] children.” The psychologist observed the Applicant appeared to use the strategies the psychologist suggested and they also appeared to use strategies obtained from other health professionals. The psychologist also noted the family’s stay at a residential program in July 2024 “to obtain further strategies”. The psychologist also stated it was to the Applicant’s credit the Applicant and their spouse had had multiple health professionals involved to assist their children.

43. The Applicant provided a WWCCC reference of 9 September 2024 from a social worker who provided part of a family therapy and parenting program to the family in 2023, for a program the family undertook between September 2022 and May 2023. The reference notes the Applicant was engaged in the program and was using some of the skills taught in their parenting. The reference supported the Applicant engaging in child related work.

44. Also before the Tribunal was a WWCCC reference of 10 July 2023 from a behaviour support practitioner. The reference recommends the grant of a WWCCC to the Applicant and speaks to the Applicant’s character with knowledge of the behaviours of Child 1 and other relevant circumstances of the Applicant. A reference letter of 1 July 2024 from the Applicant’s treating psychologist also supports the Applicant engaging in child related work.

Circumstances of the incident

45. On 8 November 2021, the Applicant slapped Child 1 on their face with an open hand while the Applicant was wearing rings. On the day of the incident the Applicant took the photographs of Child 1’s marked red cheek that are contained in the Respondent’s material before the Tribunal.

46. The Applicant’s evidence is that the incident occurred during a challenging period over several weeks where Child 1 was transitioning between ADHD medication that required weaning off one medication which was not effective, a period of a fortnight with no medication and then gradual introduction of a different medication. Over that period Child 1 had a number of meltdowns, which continue on occasion to the present, now with generally less severity.

47. The Applicant self-reported the incident. On 8 November 2021 Child 1 attended school on that day and the Applicant notified Child 1’s teacher at the school of the incident on the same day. The Applicant also notified Child 1’s psychologist and made an urgent parent session appointment to discuss the incident on that day.

45. In immediately notifying Child 1’s teacher and psychologist, the Applicant with their extensive professional experience in child services knew they were notifying people who held mandatory reporting obligations of the incident.

46. The Applicant disclosed the incident to their employer on 19 November 2021.

47. For the reasons discussed above as to credit, we accept the Applicant’s version of the incident and we therefore find the incident occurred as one slap to Child 1’s cheek using an open hand that was wearing rings.

Other allegations

51. As a result of the incident, and the reporting of the incident, several investigations into the circumstances of the family and the conduct of the Applicant and the Applicant’s spouse regarding their children occurred.

52. Further to the incident, the Respondent relies on other allegations of the Applicant’s conduct, based on material obtained during those investigations, to support a finding that the Applicant poses a risk to the safety of children.

53. The other allegations in addition to the incident can be summarised as, that:

1. The Applicant placed soap in Child 1’s mouth as a disciplinary method;

2. The Applicant placed hot sauce in Child 1’s mouth as a disciplinary method, including while Child 1 was being physically restrained;

3. The Applicant restrained Child 1 by siting on the child;

4. The Applicant placed a cloth over Child 1’s face while the child was physically restrained;

5. The Applicant placed a cloth in Child 1’s mouth while the child was physically restrained;

6. The Applicant was present when the Applicant’s spouse subjected Child 1 to physical assault and the Applicant failed to both stop and report such assault; and

7. The Applicant knew the Applicant’s spouse subjected Child 1 to excessive discipline in the form of physical assault and the Applicant failed to both stop and report such assault; and

8. The Applicant caused psychological harm to Child 2 who was alleged to be a witness to some the excessive discipline in the form of physical assault of Child 1 the subject of allegations (1) to (6) above.

54. As a result of the incident and the other allegations described above, the Respondent submits the Applicant “presents with recent, sustained records for physical abuse and excessive discipline” such that the Tribunal should be satisfied the Applicant poses a risk to the safety of children, that a reasonable person would not allow their child to have direct unsupervised contact with the Applicant and that it is not in the public interest to grant the Applicant a WWCCC.

Allegations the Applicant placed soap and hot sauce in Child 1’s mouth as discipline

55. The Applicant’s evidence is that Child 1 could sometimes be distracted out of a meltdown by “quirky” information. The Applicant described a meltdown where Child 1 was swearing and demanding to go to a grandparent’s house. The Applicant responded by telling Child 1 the grandparent would not put up with swearing and that the grandparent would place soap in the Applicant’s mouth as a method of disciplining children. The Applicant’s spouse added that as a child they would have hot sauce placed in their mouth as a method of disciplining children. This information distracted Child 1 out of meltdown and Child 1 asked to taste hot sauce. When Child 1 was calm the Applicant placed hot sauce on a toothpick for Child 1 to taste. Child 1 placed the toothpick with hot sauce in their mouth and given Child 1’s sensory issues did not find the sauce unpleasant.

56. The Applicant’s evidence is that they have never placed soap in Child 1’s mouth. Further, it would not make sense for such conduct to occur because of Child 1’s PICA disorder which causes Child 1 to often place non-edible material in their mouth such as soap, deodorant, plastic, paper and hand sanitiser.

57. The Applicant denies ever placing hot sauce in the Child’s mouth.

58. We find the allegations the Applicant placed soap and hot sauce in Child 1’s mouth cannot be supported because we accept the Applicant’s version of events as a witness of credit and further because we accept Child 1’s PICA disorder has the effect of making soap in the mouth an ineffective disciplinary measure.

Allegation regarding use of cloth;

59. The Applicant admitted to placing a cloth in front of Child 1’s mouth as a protective measure when Child 1 was spitting during several meltdowns during the pandemic. The Applicant denies ever placing a cloth in Child 1’s mouth.

60. We accept the Applicant’s evidence for the same reasons discussed in respect of the allegations above. Therefore we are not satisfied the Applicant ever placed a cloth in Child 1’s mouth.

Allegations regarding restraint, regarding actions of spouse and harm to Child 2

61. Child 1 has a behaviour support plan developed by a behaviour support practitioner. The plan outlines Child 1’s behaviours of concern including the challenging behaviours described above as well as strategies used to safely manage the behaviours. The status and content of the plan has changed over time.

62. The Applicant and their spouse were operating under a misunderstanding that a behaviour support plan relevant to the time of the incident was an approved plan when it was in fact a draft. We do not consider the status of the plan as a draft to be determinative of any findings we make as to the Applicant’s relevant conduct, given the circumstances described below, namely that the draft plan and relevant documents were provided to the Applicant by treating health professionals.

63. In September 2021, Child 1’s psychologist had provided to the Applicant and their spouse a ‘Holding Procedure’ before any relevant physical restraint of Child 1 occurred. The document contains the dates “9/9/2021 - 9/10/2021” and sets out a flowchart of steps to take in response to Child 1’s behaviours. The document refers to “bear hug” and “protective hold”.

64. We accept the Applicant’s evidence that physical restraint practices to manage Child 1’s meltdowns were suggested by the child’s psychologist around September 2021 as a result of the Applicant showing the psychologist photographs of Child 1’s self-harm and that such practices were introduced to keep Child 1 safe from self-harm during a period of medication transition. Further, we accept the Applicant’s evidence that they received a verbal instruction in a session that they must intervene when Child 1’s behaviour was causing the child to harm themself.

65. The Applicant has a back injury and is unable to restrain Child 1 on their own. We understood that evidence to be unchallenged, but in any case we accept the evidence of the Applicant as a witness of credit and we therefore find the allegation that the Applicant sat on Child 1 as a disciplinary method not supported.

66. Further, we accept that the Applicant’s involvement in any physical restraint of Child 1 occurred as an assistant to their spouse, or in the Applicant’s presence while Child 1 was being restrained by the Applicant’s spouse.

67. As a result of the Applicant being physically unable to manage restraint of Child 1 independently, the Applicant was often with Child 2 while Child 1 was in meltdown to reassure and care for Child 2, and so was not always present when restraint of Child 1 by the Applicant’s spouse occurred.

68. The Applicant’s evidence was that the optimal position for managing Child 1’s behaviour in terms of restraint was for Child 1 to be seated in front of the Applicant’s spouse with the child’s back to the adult’s chest with the adult’s arms wrapped around the child in a “bear hug”. If such a position could not be achieved, as an alternative on a small number of occasions in the relevant period the Applicant’s spouse laid on Child 1 to restrain the child. The Applicant was not present on those occasions when this occurred.

69. While the Applicant had expressed concern to Child 1’s psychologist that the Applicant’s spouse may have “jumped” through the flowchart steps thereby arriving at the physical restraint steps “too quickly” when the Applicant was not present, we accept the intention of physical restraint actions taken in respect of Child 1, as witnessed by the Applicant was to keep Child 1 safe, particularly from self-harm and was not conducted as a disciplinary measure.

70. We accept the Applicant’s evidence that they had never witnessed any conduct of their spouse in the form of excessive discipline or physical assault and that the Applicant would have stopped such conduct had they in fact witnessed it.

71. Following the incident the Applicant requested removal of the physical restraint content of the plan because of its effect on Child 1 and the family as well as the improved effect of new medication on Child 1, and instead management of relevant behaviour is to occur by environment seclusion.

72. The Applicant’s evidence, that we accept, is that such seclusion is to occur with Child 1 in their bedroom where possible with the parents out of the room, but present nearby. The room has no door or wardrobe doors because Child 1 has in the past repeatedly slammed their head in those doors to self-harm and as a result the presence of a parent near the room during seclusion is apparent to Child 1. The room contains minimal items that are soft items such as mattress and bedding to reduce the likelihood of damage to or by Child 1.

73. Also following the incident, wrapping of Child 1 using a weighted blanket was introduced as an alternative behaviour management strategy for Child 1’s meltdowns. The relevant plan provided to the Applicant for “9/12/2021-9/12/2022” includes reference to the weighted blanket, wrapping and seclusion. That plan does not refer to “bear hug” or “protective hold” and as such is consistent with the Applicant’s evidence.

74. We are therefore not satisfied, as alleged, that the Applicant performed or witnessed any restraint of Child 1 as a disciplinary measure, and it follows we cannot be satisfied any physical assault or “excessive discipline” of Child 1 occurred.

75. Given our findings as to the other allegations, it also follows we do not consider that the Applicant as a mandatory reporter has failed to report conduct of their spouse towards Child 1 because we are not satisfied there was such conduct for the Applicant to report.

76. It also follows we are not satisfied the Applicant has caused psychological harm to Child 2 because we are not satisfied Child 2 was a witness to physical assault or “excessive discipline” of Child 1.

Conclusions as to other allegations

77. As a result of the findings made and consideration above, the Tribunal is unable to conclude, as submitted by the Respondent, that there is a “real possibility” the Applicant has committed or witnessed serious physical assault and excessive discipline of Child 1, or that the Applicant caused psychological harm against both Child 1 and Child 2.

Measures following the incident

78. The Applicant and their spouse attended couples counselling following the incident. The Applicant’s evidence, that we accept, was the counselling included difficult conversations about approaches to parenting, including consideration of living separately instead of as one family unit if necessary, e.g. if the Applicant’s spouse was not able to adjust their parenting approach. The primary concern for both parents was the needs of their children. The Applicant’s spouse also attended counselling in respect of their experience of being parented and the effect of that on their own parenting approach.

79. The Applicant works from home and is the primary carer of the children. The Applicant’s spouse no longer supervises Child 1 without another adult present. The Applicant has sourced further family support and related services, and both children now have NDIS plans.

80. Further, the Applicant, their spouse and the two children attended a one week family residential program in 2024 as a family unit that expanded the behaviour management strategies of the parents and included time together as well as each family member participating in targeted individual sessions.

Does the Applicant pose a risk to the safety of children?

81. We will now apply the findings we have made as we consider the mandatory considerations and apply the relevant statutory tests.

Mandatory considerations – s 30(1)

(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

82. The incident in 2021 of slapping a child’s face with an open hand while wearing rings was an assault on a child and is a serious matter because of the potential and actual physical and mental harm to the child.

83. As a person who had worked in child and family services since 2005 the Applicant had knowledge and education, beyond that of an ordinary person, of the seriousness and actual and potential impact of their behaviour.

84. The Applicant is not a disqualified person. No criminal charges were laid as a result of the 2021 incident, although an ADVO was imposed that has since expired. There were no breaches of that order while it was in force for two years.

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

85. The incident occurred in November 2021, over three and a half years ago. Since that time we are not satisfied there has been any further behaviour of concern by the Applicant.

86. Further, the Applicant has taken remedial steps to address the incident and surrounding circumstances as set out above in relation to measures following the incident, including:

1. The Applicant engaged a psychologist,

2. The Applicant and their spouse attended couples counselling,

3. The family attended a family therapy program between late 2022 to mid-2023 and attended a residential family program over 5 days in July 2024,

4. The Applicant has obtained additional support services under the NDIS plans of their children and also separately funds additional support.

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

87. The Applicant was 39 years old at the time of the incident.

(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

88. Child 1 was eight years old at the time of the incident. The child was particularly vulnerable given their age and special needs. This was known to the Applicant as the parent and primary caregiver who was, and is, in a position of power over the child.

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

89. The Applicant is an adult who was 39 years old at the time of the incident and Child 1 is their child who was eight years old at the time of the incident.

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

90. As the parent, the Applicant knew Child 1 was a child at the time of the incident.

(g)  the person’s present age

91. The Applicant is now 43 years old.

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

92. The Applicant has no criminal history, although the Applicant was subject to an ADVO as a result of the incident. The ADVO was in place for two years and was not breached.

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

93. We are satisfied there is low likelihood of the Applicant’s conduct during the incident being repeated. We have accepted the incident occurred during a challenging period over several weeks where Child 1 was transitioning between medication which supports our view that the incident was an isolated one.

94. We are satisfied the Applicant has demonstrated contrition and remorse and has insight into their past behaviour. The Applicant and their spouse have also taken a number of steps to minimise the risk of such future conduct as discussed above in relation to measures following the incident and the s 30(1)(b) consideration.

95. Further, the WWCCC references provided by relevantly experienced professionals support the grant of a WWCCC to the Applicant.

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

96. No court or tribunal orders are currently in place with respect to the Applicant. The ADVO made to protect the Applicant’s children has expired.

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

97. Our assessment of the Applicant’s oral evidence is discussed above and we have also taken into account the Applicant’s material before the Tribunal.

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

98. This criterion is not relevant in these proceedings.

(k)  any other matters that the Tribunal considers necessary

99. We do not consider the personal circumstances of the Applicant as to their need for employment to support their family and to provide further care of their children to be relevant to the decision to grant them a WWCCC.

Reasonable person and public interest– s 30(1A)

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

101. Having regard to all the circumstances of the Applicant, the material before the Tribunal and the findings made by the Tribunal in these proceedings, including that the incident was isolated, the risk of repetition is low and considering the references provided, we are satisfied a reasonable person would allow their child to have direct contract with the Applicant that was not directly supervised by another person while the Applicant was engaged in child related work. We therefore find that the reasonable person test is satisfied.

102. Section 30(1A)(b) provides that the Tribunal cannot make an order with the effect of enabling a person to work with children unless the Tribunal is satisfied it is in the public interest to make such an order. In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 this was considered as follows (at [75]):

“The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.”

103. Having regard to the same matters discussed at [101] above and also considering the Applicant’s skills, qualifications and lengthy employment history in child and family related services, but not the Applicant’s own interest in obtaining employment, we are satisfied it is in the public interest test to make an order enabling the Applicant to work with children. We therefore find that the public interest test is satisfied.

Conclusion

104. On the material before the Tribunal, having considered the matters in s 30(1) of the Act and applied the reasonable person test and the public interest test of s 30(1A) of the Act, we are not satisfied that the Applicant poses a risk to the safety of children. Based on this finding we will make an order setting aside the cancellation decision of the Respondent and direct that the Respondent grant the Applicant a clearance under s 18(2) of the Act.

Order

1. The decision under review is set aside.

2. In substitution, the Applicant is to be granted a clearance under s 18(2) of the Child Protection (Working with Children) Act 2012.

**********

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: 31 July 2025