GTZ v Children's Guardian

[2025] NSWCATAD 276

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTZ v Children’s Guardian [2025] NSWCATAD 276

Hearing dates:

25 September 2025, 3 November 2025 and 4 November 2025

Date of orders:

12 November 2025

Decision date:

12 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
J Herberte, General Member

Decision:

The decision of the Children’s Guardian dated 20 December 2024 to place an Interim Bar on the applicant’s working with children check clearance is set aside and, in substitution of that decision being set aside, the applicant’s clearance is to be reinstated forthwith pending finalisation of the Children’s Guardian’s risk assessment.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27(3) of Child Protection (Working with Children) Act 2012 — Interim Bar placed on the applicant’ s clearance pending a risk assessment to decide whether the clearance should be reinstated or cancelled — Report made by former foster child that she had been sexually assaulted by the applicant’s ex-husband and an allegation that the applicant failed to act protectively towards the child — 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 and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal 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

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

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

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

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:

GTZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:

B Dean (Respondent)

Solicitors:

The ME Legal Group Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00278297

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 referred to in the documentary material lodged in these proceedings is prohibited. This order was made on 24 July 2025 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

1. The applicant sought administrative review under s 27(3) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) of the decision of the Children’s Guardian made on 20 December 2024 to impose an Interim Bar on her working with children check clearance pending completion of a risk assessment to decide whether her clearance should be maintained or cancelled.

2. The Interim Bar was imposed because information held by the respondent indicated there is a likely risk to the safety of children if the applicant engages in child-related work while the risk assessment is conducted.

3. The applicant was a former foster carer, along with her ex-husband, GTX. They have provided foster care to as many as 100 children during their foster careers with Burran Delai Aboriginal Corporation (“Burrun Dalai”). Notably, they provided long-term care for IB since his birth in December 2010 and his sister VB since her birth in August 2015. They also provided care for BB (who is unrelated to IB and VB) in two separate periods, the first from January 2018 to December 2019 and the second from January 2021 to September 2021.

4. On 11 December 2024, just over 3 years after leaving their care, BB alleged to police that she had been sexually abused by GTX during the second period of her care with GTZ and GTX. BB also alleged that GTZ knew about the abuse and failed to act protectively towards her.

5. As a result of the allegations, IB and VB were removed from the care of the applicant and GTX on 11 December 2024. GTZ’s and GTX’s carer authorisations were suspended on 13 December 2024. The respondent issued a Notice of Interim Bar and Risk Assessment to each of GTZ and GTX on 20 December 2024.

6. On 18 July 2025, GTZ applied for a review of the respondent’s decision to place an Interim Bar on her clearance.

7. GTZ emphatically denied the allegations made against her and asserted that the allegations against her and GTX were false and unsubstantiated. Further, GTZ asserted that she does not pose a risk to the safety of children. Indeed, to the contrary, GTZ asserted that, as a foster carer, she understands that she is accountable to a higher standard of care with respect to other persons’ children and understands her responsiblities to keep children safe.

8. The respondent submitted the decision to impose an Interim Bar is correct and ought to be affirmed.

9. After considering all the evidence, the Tribunal concluded that the applicant does not pose a risk to the safety of children. Further, the Tribunal was satisfied that a reasonable person would allow their child to have unsupervised contact with the applicant while she is engaged in child-related work, and that it is in the public interest to set aside the Interim Bar.

Non-publication order

10. Due to the sensitive nature of these proceedings and to protect against the identity of any child being disclosed, an order was made on 24 July 2025 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) that 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.

Material and evidence before the Tribunal

11. The following material was filed on behalf of the applicant in support of her application:

1. her affidavit affirmed on 13 August 2025 (marked for identification as “Exhibit AZ1”);

2. a character reference dated 22 August 2025 provided by KM, Clinical Neuropsychologist (marked for identification as “Exhibit AZ2”);

3. a character reference dated 18 August 2025 provided by AS, Clinical Psychologist (marked for identification as “Exhibit AZ3”).

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

1. a bundle of documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) in two volumes (marked for identification as “Exhibit “RZ1” Volumes 1 and 2”);

2. written submissions (not marked).

13. Additionally, the material filed in the associated Case No. 2025/00249659 concerning the applicant’s ex-husband (GTX v Children’s Guardian) was before the Tribunal. That material included:

1. an affidavit of the applicant’s ex-husband (GTX) affirmed on 19 August 2025 (marked for identification as “Exhibit AX1”;

2. an affidavit of the applicant GTZ affirmed on 19 August 2025 (marked for identification as “Exhibit AX2”);

3. a bundle of documents filed on 31 July 2025 pursuant to s 58 of the ADR Act (marked for identification as “Exhibit RX1”);

4. a bundle of documents labelled “Respondent’s Further Evidence” filed on 16 September 2025 and subsequently replaced by a revised version dated 31 October 2025 (marked for identification as “Exhibit RX2”);

5. a further bundle of documents in two volumes labelled “Further s 31 responses from Department of Communities and Justice and Burrun Dalai” filed on 26 September 2025 (marked for identification as “Exhibit RX3”);

6. respondent’s further material produced under Summons by the Commissioner of Police, NSW Police Force and the Secretary, Department of Communities and Justice (“DCJ”) filed on 23 October 2025 (marked for identification as “Exhibit RX4”).

Oral evidence

14. The applicant gave oral evidence and was cross-examined during the hearing. Additionally, the applicant’s daughter gave brief oral evidence at the hearing.

Background leading to the application for review

15. The applicant GTZ is 53 years of age and was in a relationship with GTX for around 30 years. They met in high school in the late 1980’s and were married in 1994, raising four biological children together. Throughout 2018 and 2019 the parties spent periods of time where they were separated and GTX lived with his mother to provide her with care. GTZ acknowledged in her oral evidence that she was not good with dates and acknowledged that clause 11(b) of her affidavit was probably not correct in that GTX was still living in the family home from time to time during 2019. Upon reflection, her recollection was that the parties separated in 2020 and were divorced in 2022.

16. GTZ and her ex-husband have been authorised foster carers for some 25 years. They were accepted to provide foster care services with a not-for-profit Aboriginal community-controlled organisation, Burrun Dalai, since 18 July 2008.

17. They have provided foster care to many children, including biological siblings IB and VB (“the siblings”) who are Aboriginal and were placed with GTZ and GTX shortly after each of their births. IB was placed in their care in January 2013 and VB was placed with them in August 2015. The siblings remained in the care of GTZ and GTX until 11 December 2024 when they were removed and placed in respite care following allegations made by another child BB who had been in the care of GTZ and GTX that she had been sexually abused by GTX and that GTZ knew about the abuse and had failed to act protectively towards her. At the time when the siblings were removed, IB was about to turn 12 years of age and VB was aged 9 years.

18. GTZ and GTX also provided care for BB (who is not biologically related to IB and VB) in two separate periods. The first period of care was from January 2018 until December 2019 (prior to the carers’ separation). The second period of care was around 9 months in duration, from January 2021 to September 2021, and was subject to an informal co-parenting arrangement agreed between GTZ and GTX. The children lived primarily with GTZ, and GTX provided respite care on alternate weekends.

19. GTX moved out of the family home by 2020. However, there were occasions when he stayed at the family home over the weekend, sleeping downstairs on a mattress and taking the children on outings during the day.

20. GTZ and GTX maintained shared foster care responsibilities for the children IB and VB until their removal on 11 December 2024. The siblings have not been returned to the applicants’ care.

21. The circumstances giving rise to the removal of IB and VB from GTZ’s and GTX’s care were a precursor for the respondent’s decision to place Interim Bars on their working with children check clearances.

22. In early December 2024, the Secretary, Department of Communities and Justice (“DCJ”), received a number of reports alleging that BB had made disclosures to the effect that she had been sexually assaulted by GTX whilst in his care and in the care of GTZ. BB also alleged that she told GTZ about the alleged abuse and that GTZ failed to act protectively towards BB and failed to notify police or Burrun Dalai. At the time of the alleged abuse, BB was 10 years old, turning 11 in September 2021. At the time of disclosing the alleged abuse in December 2024, BB was 14 years of age.

Allegations against GTZ and GTX causing imposition of Interim Bar

23. In her interview with police on 11 December 2024, BB alleged that:

1. GTX called BB up to his and GTX’s bedroom, BB knocked on the door and GTX told her to come in, at which time BB saw GTX get on top of GTZ and start “humping” (having sex).

2. After school, GTZ was at work and GTX called BB up to his bedroom. She knocked and he told her to come in and then “grabbed” her on the vagina and said “this is good for you”.

3. Another afternoon, after school, BB saw GTX, his son TH and TH’s friends walking around the home naked.

4. BB saw GTX watching pornography on TV in the loungeroom and GTX told BB, IB and VB to sit down and watch it because he said it was “good for you”.

5. GTX would force BB, IB and VB to watch him use the toilet.

6. When GTZ was out of the home, GTX called BB up to his bedroom, pushed her onto her back on the bed, pulled her legs apart and put his penis up her vagina, causing her to bleed. He then made BB get bleach and clean up the blood. GTZ came home and asked what had happened and GTX told her BB had fallen over and started bleeding.

7. GTX attempted to sexually assault BB again but she ran away. BB said she ran downstairs, grabbed clothes, a phone and a knife and ran away. She said she didn’t get very far before GTX’s son TH saw her and took her home. GTZ later askd BB why she ran away and BB told GTZ it was beause GTX sexually abused her. BB asserted that GTZ said “okay” and BB was upset that that GTZ didn’t tell the “police or DOCS”.

24. Both GTZ and GTX have denied the allegations made against them by BB.

25. On 11 December 2024, police officers contacted DCJ to express concern about the safety of IB and VB in the care of GTZ and GTX and about the possibility of them being “coached” before being interviewed by police. An investigation was commenced by the State Crime Command, Child Abuse Squad.

26. On the same date, Burrun Dalai decided to place IB and VB into a respite placement.

27. On 13 December 2024, Burrun Dalai suspended GTZ’s and GTX’s carer authorisations.

28. On 16 December 2024, police officers interviewed IB and VB. They made no disclosures.

29. On 19 December 2024, an Apprehended Violence Order (“AVO”) was made against GTX for the protection of BB. The AVO was subsequently withdrawn and dismissed on 13 February 2025. It appears a number of considerations were taken into account, including the available evidence and also subjecting the victim to court proceedings in the absence of criminal charges.

30. On 20 December 2024, the respondent issued to each of GTZ and GTX a Notice of Interim Bar and Risk Assessment.

31. Between 27 and 31 December 2024, police officers spoke with GTZ’s and GTX’s children, TH, IH and MH. They denied knowledge of any offending behaviour by GTX and denied that they were exposed to pornography or nudity in the family home.

32. On 30 December 2024, police officers spoke with MW, a child previously in GTZ’s and GTX’s care. MW said that GTX was a bit weird and got in her space such that he would get close to her when talking and this made her uncomfortable. However, she denied that GTX ever sexually touched or sexually assaulted her, and she had no complaint to make against him.

33. Also on 30 December 2024, police officers spoke with GTZ who made it clear she was unaware of any offending by GTX towards any children including BB. GTZ strongly denied all the allegations and said GTX would not have done such things. She said she had kicked GTX out of the house at least before BB’s second stay with her. She said GTX did not sleep at her house and was living with his mother. She said that if he did sleep over it would be on a mattress on the floor in the loungeroom. GTZ said he would only generally come to the house on weekends and was not home during the week after school. She said she was always home in the afternoons after school and never worked. GTZ also said that BB never disclosed any offending by GTX or any other person to her. GTZ strongly denied BB ever seeing her and GTX have sexual intercourse and strongly denied BB ever disclosing any offending to her.

34. On 15 January 2025, DCJ officers separately interviewed IB and VB and neither child made any disclosures with respect to GTX.

35. On 29 January 2025, GTX declined an invitation to participate in an interview with police.

36. On 21 February 2025, NSW Police advised GTX’s legal representative that the investigation into the disclosures made by BB was suspended with no charges pending. DCJ notes confirm that several lines of inquiry were exhausted. However, after a review of all the available evidence, it was determined that the threshold of proving all criminal offences beyond any reasonable doubt could not be met.

37. At around the same time, officers of the Joint Child Protection Response Program (“JCPRP”) completed a safety assessment and concluded that, on the balance of probabilities, sexual abuse had been substantiated. As a result, DCJ recommended that GTX be allocated the highest alert level available. On 10 April 2025, the JCPRP Director determined that GTX would be designated as a "Person Causing Harm".

Independent assessment of GTZ’s capacities to act protectively

38. DCJ commissioned an urgent independent assessment of GTZ’s suitability and protective capacities to care for IB and VB and ensure their safety and well-being. The assessment was undertaken by a Cultural Consultant who provided a comprehensive report dated 29 May 2025. The Consultant concluded that GTZ had “effectively demonstrated her protective capacities to provide a safe and caring environment for the children that supports their physical, emotional and cultural wellbeing”. The Consultant recommended reinstatement of GTZ’s carer authorisation on the conditions that her clearance is reinstated and the outcome of Burrun Dalai’s investigation is that the allegations are unsubstantiated.

Outcome of reportable conduct investigation by Burrun Dalai

39. On 23 June 2025, the Reportable Conduct Officer at Burrun Dalai wrote to GTX and GTZ to inform them that Burrun Dalai had finalised its investigtions into the allegations made against them and determined there was insufficient information to substantiate the claims made by BB.

Application for administrative review

40. On 18 July 2025, GTZ applied to the Tribunal for a review of the respondent’s decision to impose the Interim Bar on her clearance. Pursuant to a Tribunal Order made on 24 July 2025, GTZ filed an amended application for review of the respondent’s decision on 31 July 2025.

Other matters to be weighed in the assessment of risk

41. In addition to the allegations by BB that caused the imposition of the Interim Bar, there are a number of other matters that were raised against GTZ concerning her care of certain other foster children. These matters are taken into account when assessing GTZ’s risk to the safety of children under the heading “Consideration”.

Applicable legislation and legal principles

Protective jurisdiction of the Act

42. 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

43. 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

44. 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].

45. 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”

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

47. 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”.

48. 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’…”

49. 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

50. 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.

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

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

52. 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

53. Subsections 15(1) and (2) of the Act set out circumstances in which the respondent must conduct a risk assessment into a person who has applied for or holds a clearance. Section 15(3) makes clear that the respondent may decide when to conduct a risk assessment concerning a person who holds a clearance. That discretion is not limited by subsections 15(1) and (2).

54. 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.

55. 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.

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

Imposition of an Interim Bar

57. At any time after commencing an assessment of a person who holds a clearance, the respondent may determine that the person is subject to an Interim Bar: s 17(1) of the Act.

58. The effect of an Interim Bar is to prevent the clearance holder from engaging in child-related work or residing on the same property as an authorised carer, as defined in s 137 of the Children and Young Persons (Care and Protection) Act 1998 (CYP Act).

59. Section 17(2) provides that “[t]he Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the [clearance] holder engages in child-related work or resides on a property referred to in [s 17(1)] pending the determination of the application or assessment.”

60. An Interim Bar may only be in place for up to 12 months: s 17(4)(c) of the Act.

61. A person made subject to an Interim Bar may apply to the Tribunal for review of the decision to impose the Interim Bar provided the Interim Bar has been in force for more than 6 months: s27(3) of the Act.

Issue for the Tribunal’s determination

62. The issue for determination is whether GTZ poses a real and appreciable risk to the safety of children and, consequently, whether the correct and preferable decision (under s 63(1) of the ADR Act) is to affirm the imposition of the Interim Bar on her clearance.

63. 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: s 63(2) of the ADR Act.

64. 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 respondent’s decision to impose an Interim Bar. 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.”

65. 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].

What orders the Tribunal can make

66. The Tribunal may make orders that affirm, vary, set aside or remit the matter to the decision-maker for reconsideration, with or without any directions or recommendations from the Tribunal. If the decision is set aside, the Tribunal may make a decision in substitution for the decision it set aside: s 63(3) of the ADR Act.

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

67. 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

68. 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

69. 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].

70. 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.”

71. 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

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

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

73. 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.

74. 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.”

75. 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].

76. 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

77. 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.”

78. 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.”

79. 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].

80. 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].

Burden and standard of proof

81. Neither party bears an onus of proof in relation to an application for review under s 27 of the Act: BJB v The Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32].

82. Section 28(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

83. 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

84. In proceedings before this Tribunal, the allegations are assessed according to the civil standard, on the balance of probabilities, subject to the Briginshaw principle.

85. In evaluating the evidence before us, it is not necessary to find that 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.

84. 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

87. The allegations made against GTZ that caused the imposition of the Interim Bar are serious and sexual in nature. Specifically, BB alleged that when she was called into their bedroom, she saw GTZ having sex with GTX.

88. Whilst BB’s allegations were principally directed towards GTZ’s ex-husband, her allegation that GTZ engaged in some of the inappropriate conduct with GTX is serious. BB’s allegation that GTZ was aware of her complaints and did not respond appropriately by notifying either police or Burrun Dalai, is also serious since GTZ was the primary carer responsible for BB’s health and safety and wellbeing. As her primary carer, GTZ was required to act protectively towards BB, to ensure her physical, emotional and psychological safety.

89. GTZ denied the allegations against her. She also denied that her ex-husband could have engaged in the conduct alleged. She found the allegations distressing and “disgusting”. Her affidavit evidence was that, at the time of the alleged conduct, her ex-husband was not living in the family home and the concept that she would be having sex with him after their separation was ridiculous. After their separation, GTX did not have a bedroom in the family home and, if he ever slept over, he slept on a mattress on the loungeroom floor. She was adamant that she would never allow a child to watch her having sex.

90. In her interview with police on 30 January 2025, GTZ emphatically denied the allegations against herself, her ex-husband and her children. She said that BB had never disclosed any offending by GTX or any other person to her. This included after BB had run away on one occasion with another child in foster care.

91. Under cross-examination in these proceedings, her response to the allegation that BB saw her having sex with GTX was an emphatic denial. She said that she was not having sex after separating from her ex-husband, they did not share a bed, and they had a house full of children. She said that she found the allegation to be “disgusting”. She also denied the allegation that she had come home on one occasion and had been told that BB had fallen over and started bleeding, but did not ask how BB was. She said that had “never happened”. GTZ added that she had, on previous occasions, acted protectively towards children, by reporting matters of concern to Burrun Dalai. She recounted an instance when BB had assaulted VB (which resulted in BB’s removal from GTZ’s care), and another instance when another child in her care assaulted one of her biological sons.

92. GTZ’s and GTX’s three biological children (TH, IH and MH) were all interviewed by police and said that BB’s allegations were false. TH said he never saw his father show pornography to BB or any other child. He denied ever walking around the house naked and denied seeing his father or anyone else walking around the house naked. MH denied any knowledge of her father’s offending, saying he would not do such things. IH said he never saw or heard of any sexual offending regarding his father and that BB never disclosed any offending to him.

93. We note that MH was also interviewed by the Cultural Consultant engaged by DCJ to assess GTZ’s protective capacities. The Consultant recorded that MH was interviewed by police and found the allegations to be “disgusting” and “gross”. She said that she caught the bus home every afternoon with BB and if anything had happened, she would have seen it and would have said something to someone.

94. IB and VB were also interviewed by police and made no disclosures.

95. We do not dismiss the possibility that, sadly, BB has at some point in time, been the victim of sexual abuse. GTZ postulated that BB may have been subjected to abuse when she was living with her own family and then with non-authorised carers before the second period of care with the applicant in 2021. We make no finding concerning the possibility that GTZ’s assertion (about who may have perpetrated any abuse towards BB) may be correct.

96. However, in light of all the evidence, we are not persuaded that the abuse has been perpetrated by GTZ or GTX. We say this, taking into account GTZ’s consistent and emphatic denial of the allegations made against her and GTX, and the prevailing circumstances surrounding the parties in the household at the time of the alleged conduct, following their separation. The applicant’s evidence was that there were times when the relationship with GTX was “bitter”. From 2020, GTZ was not having sexual relations with GTX and he did not have a bedroom in the house at that time. GTZ did not work full time and only engaged in inconsistent casual work. If she did work, it was during school hours so that she could be home when the children arrived home from school. This was necessary because of the children’s complex conditions and their need for consistent supervision. GTX was not alone with the children on the weekdays after school as GTZ was already home.

97. We acknowledge that, as a result of the PCPRP assessment, GTX was designated to be a “Person Causing Harm”. However, there are a number of counterbalancing factors to be taken into account. They include that there is no corroborating evidence to support BB’s allegations, the police investigation was suspended with no charges pending, no charges have subsequently been laid against either party, the AVO against GTX was withdrawn, and the reportable conduct investigation concluded that the allegations against both GTZ and GTX were unsubstantiated. Additionally, GTZ’s protective capacities, to provide a safe and caring environment for the siblings, have been confirmed.

98. In the overall assessment of the applicant’s risk, we have given a substantial amount of weight to our finding that GTZ did not participate in the alleged conduct and did not fail to act protectively towards BB.

Other matters

Allegation in May 2004

99. GTZ was asked to respond to an allegation in May 2004 made by another child who had been placed with her, that GTZ was a “cranky lady” and that “she bashes me and she drags me around the house” and bashes other children. The child also was allegedly sexually assaulted by another child in the house and was allegedly told by GTZ that she was “not allowed to tell”. GTZ recognised the report as referring to a child who had a significant sexual abuse history, recalling that every second weekend the child would stay with her grandmother and every Monday following those weekends an officer of Burrun Dalai would enquire into the child’s allegations. GTZ vehemently denied the allegation that she “bashes” children. She also recalled that the child alleged that another foster child had come into her room at night. GTZ acted protectively by calling Burrun Dalai who then collected the alleged offending child. GTZ’s evidence was that she acted protectively and that she would never tell a child that they could not disclose what had happened to them.

100. There is insufficient evidence to support the allegations and GTZ’s oral evidence was persuasive. Accordingly, we have not taken the allegations into account when assessing GTZ’s risk.

Allegation in November 2004

101. Another report stated that a female child had asserted that in November 2004 when GTZ and GTX went out, she was left with three teenage boys who touched her inappropriately and smacked her with a wooden spoon and a piece of garden hose. GTZ absolutely denied the allegations, saying these incidents did not occur, and said it was ludicrous to suggest that she would leave a female to be looked after by three teenage boys.

102. There is insufficient evidence to support the allegation and we have not taken it into account when assessing GTZ’s risk.

Allegations in May 2009

103. GTZ was asked to respond to reports concerning a baby in her care in May 2009 who was observed to have significant bruising around both eyes and her nose. GTZ had explained that the child had been sitting on a tiled floor, with a pillow behind her, and when left unattended for a short time, the child had fallen forward onto the tiles. GTZ recalled that the baby was in her care from birth until around one year old. GTZ said that she had gone into the kitchen and the baby had fallen forwards, and GTZ took her to see a doctor. She acknowledged that the baby did not need medical attention and said that she consulted a doctor to protect herself. She also acknowledged that it was more important that the baby’s needs were met, and denied ever neglecting a child.

104. In another report, the same child allegedly had bruising and scratches on her face. GTZ said that she was at the beach at the time and had dropped the baby’s bottle. When trying to reach the bottle, the baby started to fall and, as a reflex action, GTZ grabbed her face (on each side of the face). GTZ said she felt terrible and let Burrun Dalai know straight away. She asked Burrun Dalai if she could tell the baby’s mother herself about what had happened because she felt “gutted” by what had happened.

105. In another report, the same child had allegedly been in a bouncer and had accidentally bounced out and hit a wall. GTZ could not recall that alleged event. She also could not recall another incident where it was alleged that the baby had a burn on her stomach and a black eye. In various reports, the baby was alleged to have blisters possibly associated with severe nappy rash, the baby had swallowed a balloon which then passed through to her nappy, and had blood in her nappy, and possibly a staph infection due to severe nappy rash.

106. GTZ explained that the baby’s mother was very young and was seeking to have the baby returned to her. As a result, the mother appeared to be fabricating reports such that Burrun Dalai staff asked GTZ to photograph the baby before and after the weekends she spent with her mother. GTZ recalled that she sent medication to relieve teething pain with the baby on one of the weekends with her mother, and the medication came back fully used, indicating over-usage. Yet another report noted that the baby was observed to have a long mark near her left eye. The report stated that the carer (GTZ) had advised that the mark occurred when the child was climbing in and out of a box. However, GTZ’s oral evidence was that the child had a rattle, with beads inside it, that she had used to hit herself, leaving a mark.

107. GTZ denied that she had ever neglected the baby. She said that when the baby was with her, she used a nappy cream and always changed her nappy. She added that she looked after foster children better than she did her own, and that she operated to a higher standard, recognising that she is answerable to other people for their children.

108. We accept that there were complex circumstances surrounding the care of this baby whose very young and inexperienced mother appeared to be seeking to discredit GTZ’s efforts to care for, and keep, the child safe. On balance, we do not accept that the reports demonstrate neglect on GTZ’s part, and have not given a great deal of weight to the allegations in assessing GTZ’s risk.

Allegation that BB felt left out and unwanted

109. In a report concerning BB in September 2019, it was alleged that BB felt left out in the household and that she felt unwanted. She asserted that GTZ had said they couldn’t wait until she goes, which was upsetting for her. Another report asserted that BB had holes in her shoes and was always in trouble, and always cleaning the home. GTZ denied ever saying that she couldn’t wait for BB to leave and that she never heard GTX say that. She said that BB used to drag her toes on concrete, leaving holes in her shoes, but that this was remedied. She acknowledged that BB liked to tidy and sweep the back yard when she came home from school. BB was not asked to do this, and GTZ regarded it as her way of transitioning from school. GTZ said that she always spoke with kindness and respect. After leaving her care, BB would jump into her arms upon seeing her, and called her “Aunty”.

110. On balance, we accept GTZ’s evidence concerning her care and concern for BB. We have not taken these allegations into account when assessing GTZ’s risk.

Level of control exerted by GTX over GTZ

111. GTZ was asked about whether she trusted GTX and about the level of control that GTX exercised over her. Her evidence was that she trusted GTX with her life and the lives of her children and that he was a moral and a good man, but that he was unreliable. She said that she didn’t think he was controlling, and that she felt her opinion was heard. She said that she knew very little about his employment and that “his business in his business”.

112. When asked about her relationship with GTX if the siblings were returned to her care, GTZ said that she would be guided by DCJ. She understood that having IB and VB in her care may mean that they would not be permitted to go to GTX’s house. In our view, GTZ is a compliant carer, and we accept her evidence that she would “follow the rules” and not risk IB and VB being placed with other carers again.

Altercation between GTX and MH

113. When asked about an incident when GTX had verbally abused their daughter (MH), GTZ said she was aware that there was an altercation between the two, on the anniversary of their son’s death. It was alleged that GTX said to MH “you’re a dog ####” and “hope you and your mother die”. GTZ found GTX’s conduct to be “disgusting” and explained that the emotions had been heightened on that occasion, causing a “meltdown” in GTX. MH gave evidence, saying that GTX’s conduct was unusual, and his comments were not made in the presence of IB and VB. This incident does not reflect negatively on GTZ or the assessment of her risk.

Alleged online contact with IB and VB

114. GTZ was asked whether there had been contact with IB and VB online. She said that she understood IB had contacted GTX and that GTX had sent a message to the effect: “We’ll get you home as soon as you (sic) can”. GTZ rejected any suggestion that this would cause harm and said that she herself had said “we’re doing everything to get you home”. In giving her response, GTZ said: “We love them, we miss them. It would be worse for them to think we didn’t want them back”.

115. When challenged that the decision to return IB and VB was not theirs, GTZ said words to the effect of: “I have to believe that I’ll get my kids home”.

116. GTZ’s evidence indicates her love and strong commitment to caring for the siblings IB and VB. It demonstrates her insight into the vulnerability of the siblings who have been cared for since birth by GTZ. We understand there are no restraints imposed on the carers with respect to their communications to IB and VB. We accept that comments made by the carers to IB and VB may be emotionally confusing for them at this time and may cause disappointment if it transpires that the siblings are not returned to GTZ’s care.

Alleged intimidation of GTZ by GTX

117. GTZ was asked to explain her concern about the way a handover of IB and VB with GTX was managed on 28 April 2024. According to a police report, GTX came to the driver’s window (where GTZ was sitting), knocked on the window and stared at her, trying to intimidate her. Under cross-examination, she confirmed that she did not like GTX’s conduct, but asserted that the fact that she had reported the matter to Burrun Dalai demonstrated she was not intimidated by him. There is insufficient evidence associated with this incident to make a finding relevant to an assessment of GTZ’s risk.

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

118. The allegations by BB concern events that she asserted took place in the second period of her placement with GTZ, that is, between January and September 2021. GTZ continued to co-parent (with GTX) IB and VB until their removal on 11 December 2024 when BB made the allegations. Neither IB nor VB have made any disclosures against GTZ or GTX. The applicant GTZ has denied all the allegations made against her and has endeavoured to have IB and VB restored to her care.

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

119. The applicant was aged between 49 and 50 at the time of the matters alleged by BB.

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)

120. BB was aged between 10 and 11 at the time of the alleged conduct. She was 14 years of age at the time that she made the allegations.

121. There is no question that BB was vulnerable, being a child placed in foster care, and reliant on GTZ and GTX for her physical and emotional safety and wellbeing.

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)

122. The age difference between the applicant and BB at the time of the matters alleged is approximately 39 years.

123. BB was a child placed in foster care with the applicant and GTX in January 2018 until December 2019 and then from January 2021 until September 2021.

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

124. Clearly, the applicant knew that BB was a child at the time of the alleged abuse.

The person’s present age: s 30(1)(g)

125. The applicant is currently 53 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)

126. There is no evidence before the Tribunal that GTZ has a criminal history before or after the time of the alleged conduct.

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)

127. This Tribunal has found, on the balance of probabilities, that the applicant did not engage in the conduct as alleged by BB. If GTZ were to engage in such conduct in the future, towards a child in her care, it would likely cause emotional and psychological harm, and potentially physical harm.

128. GTZ has not participated in an expert assessment of her risk or the likelihood that she may engage in the nature of the conduct alleged against her. However, she has provided a character reference from a Clinical Neuropsychologist who has known her for around 13 years. The applicant has engaged in therapy with the Neuropsychologist who is also a personal friend. The Neuropsychologist is intimately acquainted with the high needs of IB and VB. Her personal reference attests to the applicant’s prioritisation of the needs of foster children in her care and to her integrity:

“[The applicant] is a person of high moral values and personal integrity She has extensive knowledge and lived experience of young people’s mental health issues. [The applicant] has prioritized ensuring that her children and foster-children understand personal safety behaviours, and the children feel confident to approach her with their question and concerns, which are discussed with frankness and are acted upon appropriately.”

129. GTZ also submitted a character reference from a Clinical Psychologist who has worked closely with her since December 2020 and is the treating psychologist to IB. Her reference makes the following statements:

“Over the past five years I have found [the applicant’s] commitment, dedication and love for the children in her care to be remarkable Despite facing significant challenges due to [IB’s] behavioural difficulties and emotional needs, [the applicant] has responded with unwavering patience, understanding and integrity. I do not know many carers who could consistently place the children’s needs ahead of their own to provide a stable and nurturing environment, and I feel that this has required considerable personal sacrifice from [the applicant].”

“… Again, her commitment to the children in her care is unparalleled and I have not experienced this level of care with any other foster carer, guardian, or parent.”

“In conclusion, I would strongly recommend [the applicant] as a capable and compassionate foster carer. She has demonstrated dedication, diligence, and strong moral and ethical principles in her role as a foster carer.”

130. In her assessment of GTZ’s protective capacities, the independent Cultural Consultant engaged by DCJ made the following observations about the applicant’s ability to reflect on adverse findings and acknowledge risk factors:

“[The applicant] was open, transparent, and reflective during discussions about the adverse findings recorded in her Childstory (CS) check. Her account of the circumstances aligned with the documented information provided to the assessor, demonstrating her willingness to acknowledge past concerns and engage in constructive dialogue about her history. This openness is indicative of her developing insight and a readiness to work alongside professionals in addressing risk factors.”

131. The Consultant also observed the applicant’s insight into past difficulties and her willingness to engage collaboratively with services to assist in her care for children:

“[The applicant] is currently preparing for the return of her children to her care following a period of removal. She has shown significant motivation and growth, with a clear understanding of the challenges she previously faced and a renewed commitment to creating a safe, nurturing and structured home environment. Her insight into past difficulties and willingness to work collaboratively with services marks a positive shift in her caregiving capacity.”

132. On balance, we have given a moderate amount of weight to the personal references since both referees are well acquainted with GTZ’s standard of care for foster children. We have, additionally, given a moderately high amount of weight to the assessment by DCJ’s Cultural Consultant.

133. Having regard to all the evidence, and in particular GTZ’s oral testimony, we are of the view that the applicant’s likelihood of engaging in conduct in the nature of that alleged by BB, is very low, to the point of being negligible.

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

134. GTZ is not the subject of any order of a court or a tribunal.

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

135. The applicant affirmed two affidavits in support of her position in which she denied the allegations made against her by BB. Her oral testimony was consistent with her affidavit evidence. She also provided two personal character references which we have already referred to above.

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

136. 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)

137. It was submitted on behalf of the Children’s Guardian that the allegations made by BB ought not be viewed in isolation from the totality of information available in relation to her care of a number of children. Those other matters were put to GTZ in cross-examination and have been taken into account, with no significant negative findings made by this Tribunal.

138. It was also submitted on behalf of the Children’s Guardian that although GTZ is in a different category to GTX insofar as their alleged conduct is concerned, it is a matter of concern that GTZ maintains a close association with GTX despite her own negative report about his conduct towards her. This was also a matter on which GTZ was cross-examined and we accept GTZ’s evidence that she functions with full agency and is not dependant upon GTX for any form of support. We understand that GTZ would not require any co-parenting relationship with GTX to be implemented if she were to have IB or VB or any other children placed in her care in the future. We also understand, from the Cultural Consultant’s report, that GTZ’s daughter (MH) would be prepared to be assessed as a respite carer, to provide support for GTZ.

Overall evaluation of risk

139. In a number of respects, the applicant impressed the Tribunal as a dedicated foster carer, with an exemplary attitude of genuine interest in the welfare of children in her care and an appreciation of the responsibilities attaching to the role of a carer. She demonstrated empathy towards BB notwithstanding BB’s allegations against her, and expressed concern that BB may have experienced negative emotions associated with her time in GTZ’s care.

140. The Tribunal is satisfied on the evidence before it that the applicant does not pose a risk to the safety of children.

Reasonable person and public interest tests

141. Before making an order that has the effect of enabling a person to work with children, the Tribunal must be satisfied that the reasonable person and public interest tests in s 30(1A) of the Act have been met.

142. Turning first to the reasonable person test, the Tribunal must be satisfied that a reasonable person would allow their child to have direct unsupervised contact with the applicant while she is engaged in any child-related work.

143. A reasonable person would need to be acquainted with all of the matters that are before this Tribunal. That includes the applicant’s long history of being an authorised carer for around 100 children, with the two long-term placements of children with complex diagnoses and high needs; the matters considered by the Tribunal with respect to BB’s allegations including the circumstances surrounding the applicant’s separation and divorce from GTX; the result of Burrun Dalai’s reportable conduct investigation which found there was insufficient evidence to substantiate BB’s allegations; the fact that the police suspended their investigation with no charges pending, the circumstances where the applicant acted protectively towards children in her care, the recommendation of the Cultural Consultant and the references from the Clinical Neuropsychologist and the Clinical Psychologist.

144. The applicant has insight into the vulnerability of children in foster care and the risks associated with their care.

145. The applicant presents as a compliant person, willing to following procedures and maintain a collaborative relationship with authorities.

146. The applicant presents as having a low to negligible risk of engaging in conduct in the nature of the conduct alleged against her.

147. We are satisfied that the reasonable person test in s 30(1A)(a) of the Act has been met.

148. With respect to the public interest test, the broad interests of the community are clearly served by having persons such as the applicant provide a stable, loving family environment in which foster children feel safe and protected.

149. The applicant’s right to use her experience and expertise as a carer is of at least equal importance to the public interest, and is entirely consistent with the community interests.

150. There are no public interest considerations to suggest that it is not in the public interest for this applicant to have the Interim Bar removed from her clearance.

151. We are therefore satisfied that the public interest test in s 30(1A)(b) of the Act has been met.

Orders

1. The decision of the Children’s Guardian dated 20 December 2024 to place an Interim Bar on the applicant’s working with children check clearance is set aside and, in substitution of that decision being set aside, the applicant’s clearance is to be reinstated forthwith pending finalisation of the Children’s Guardian’s risk assessment.

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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: 12 November 2025