GXI v Children's Guardian - [2025] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GXI v Children’s Guardian [2025] NSWCATAD 280
Hearing dates: 11 September 2025
Date of orders: 14 November 2025
Decision date: 14 November 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Mobbs, Senior Member
E Hayes, General Member
Decision:
The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (act of indecency)– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) and other Legislation Amendment Act 2025 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (ACT)
Crimes Act 1900 (NSW)
Domestic Violence Act 1986 (ACT)
Working with Vulnerable People (Background Checking) Act 2011 (ACT)

Cases Cited:
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
Ex parte Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448
GVD v Children’s Guardian [2025] NSWCATAD 251
Lee v Health Care Complaints Commission [2012] NSWCA 80
M v M (1988) 166 CLR 69
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
None

Category: Principal judgment
Parties: GXI (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s): 2025/00078957
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, 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. 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

The Applicant in these proceedings is referred to as “GXI”. GXI is the Applicant’s pseudonym used in accordance with the order made by the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
The Applicant was charged with contravening s 92K(2) of the Crimes Act 1900 (ACT) (repealed) in that on 20 August 1990 in the Australian Capital Territory (ACT) he committed an act of indecency on a person < 16 years. On 12 February 1991 at the ACT Magistrates Court, the Applicant received a conditional release order in relation to that offence pursuant to s 556B of the Crimes Act 1900 (ACT) upon giving a recognizance for the sum of $2000 and subject to the Applicant being of good behaviour for 12 months (the 1990 offence).
On 17 April 2019, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATAD 280
Decision Date: 14 November 2025

CaseChat Overview and Summary

GXI sought an enabling order under the Child Protection (Working with Children) Act 2012, to permit him to engage in regulated work with children. The applicant had previously been convicted of an act of indecency and was therefore a disqualified person. The Children's Guardian opposed the application on the basis that the applicant had not displaced the statutory presumption that he posed a risk to the safety of children. The court was required to decide whether the applicant had satisfied the statutory criteria to rebut the presumption of risk and whether an enabling order should be granted. The court found that the applicant had not discharged the onus of showing that he had reformed and was no longer a risk to children. The court noted that the applicant had a history of similar offending and had failed to demonstrate any real insight or remorse for his actions. The court also found that the applicant's evidence was not entirely reliable and that he had not taken adequate steps to address his risk factors. The application for an enabling order was refused. The court found that the statutory presumption that the applicant posed a risk to the safety of children had not been rebutted. The court concluded that it was not satisfied that the applicant had taken sufficient steps to address his risk factors and that there was a real possibility that he would reoffend if granted an enabling order. The court noted that the safety and wellbeing of children was paramount and that it was not prepared to take any risks in this regard. The court's decision was final and could not be appealed.

Orders

Orders of the court

The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	GXI v Children’s Guardian [2025] NSWCATAD 280
Hearing dates:	11 September 2025
Date of orders:	14 November 2025
Decision date:	14 November 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Mobbs, Senior Member E Hayes, General Member
Decision:	The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (act of indecency)– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and other Legislation Amendment Act 2025 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (ACT) Crimes Act 1900 (NSW) Domestic Violence Act 1986 (ACT) Working with Vulnerable People (Background Checking) Act 2011 (ACT)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 Ex parte Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448 GVD v Children’s Guardian [2025] NSWCATAD 251 Lee v Health Care Complaints Commission [2012] NSWCA 80 M v M (1988) 166 CLR 69 Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	None
Category:	Principal judgment
Parties:	GXI (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent)
File Number(s):	2025/00078957
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, 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. 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.