FWI v Children's Guardian [2026] NSWCATAD 8;

(1) whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

(2) whether it is in the public interest to grant the applicant a working with children check clearance.

1. In doing so, we have also considered each of the factors set out in section 30(1) of the Child Protection (Working with Children) Act 2012.

Does the applicant pose a real and appreciable risk to the safety of children?

1. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children's Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. The Children's Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children's Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children's Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012)
2. In determining this, we have been guided by CXZ v Children's Guardian [2020] NSWCA 338 which states, in part:

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. (per Simpson AJA at [57])

1. In these proceedings, the Children's Guardian does not allege that the applicant is a paedophile or that he has any sexual interest in children. Rather, the Children's Guardian is concerned that the applicant exploited the adult complainant who, it is alleged, was a vulnerable person.
2. In determining whether the applicant poses a real and appreciable risk to the safety of children, we have examined the substantial amount of material put before us to consider:

(1) whether the prosecution brief for the sexual assault charges laid against the applicant (and then withdrawn) should be excluded from the evidence in these proceedings;

(2) what, if any, weight to apportion to the complainant's statement given:

(a) the statement was neither signed, sworn or affirmed;

(b) the circumstances surrounding the translation of the statement into the complainant's mother tongue;

(c) the statement was taken in the presence of and with the assistance of two support persons;

(d) neither the complainant nor the support persons were made available for cross-examination.

(3) whether the complainant was a vulnerable person exploited by the applicant;

(4) whether documents tendered on a confidential basis indicate that the applicant might pose a risk to the safety of children.

1. We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

Should the police brief for the sexual assault charges made against the applicant should be excluded from the evidence in these proceedings?

1. According to the applicant, the Harman principle should apply to exclude the police brief contained in the material before us. For the reasons that follow, we disagree.
2. The Harman principle, as it is known, is set out in Harman v Home Department State Secretary [1983] 1 AC 280 and has been summarised by the High Court as follows:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining disclosure cannot, without leave of the court, use it for any other purpose other than that for which it was given unless it is received into evidence. (see Hearne v Street (2008) 235 CLR 1125 at [96])

1. It is, however, well settled that the Harman principle gives way to inconsistent legal obligations, including statutory obligations. (see Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) (2018) 359 ALR 27; La Mancha Africa SARL v Commissioner of Taxation [2021] FCA 560; (2021) 391 ALR 1).
2. In these proceedings, it follows, the Harman principle is overridden by the statutory obligation of a government agency - here, the NSW Police - to provide to the Children's Guardian any statement or information relevant to an assessment of whether a person poses a risk to the safety of children. (see s31 Child Protection (Working with Children) Act)
3. We are satisfied that the police brief prepared in relation to sexual assault charges against the applicant is relevant to such an assessment given that it was used by the Children's Guardian to refuse the applicant a working with children check clearance. (see s30 (1)(a) of the Child Protection (Working with Children) Act).
4. Accordingly, we refuse the application that the police brief be excluded from the evidence in these proceedings.

What weight should be given to the statement of the complainant who was unavailable to be questioned?

1. Whilst we are empowered to accept a statement made by a person who is not available for cross-examination as evidence of the facts asserted in the statement, this is subject to a consideration of how much weight should be attached to the statement in circumstances where it has not been tested. (see Children's Guardian v BRL [2016] NSWSC 1206)
2. On the evidence before us, we accept that the Children's Guardian endeavoured to contact the complainant by:
   • text, phone and voice message;
   • the issuing of a summons seeking to obtain additional information from NSW Police in relation to the complainant's contact details;
   • engaging a private investigator to ascertain the complainant's whereabouts.
3. Had the complainant been available for cross-examination, we would have been assisted by his evidence in relation to the making of his statement containing the allegations against the applicant.
4. In his absence, we have considered the evidence before us, including the oral evidence of one of the investigating police officers, Detective Senior Constable Mann, who clarified the circumstances in which the complainant's statement had been made:

I am aware from NSW Police Force records that [the complainant] was accompanied by two support persons who assisted [him] in giving the statement by translating matters described by [the complainant] in [his native pidgin] to English. The statement was taken and recorded in writing in English...I understand that [he] was not asked to sign the statement once it was completed because he did not appear to me to speak or read English well enough to understand the statement as written in English...On 17 January 2018 [the complainant] read his statement which had been translated from English into...[pidgin] and signed it.

1. The applicant asked to question the two support people who had assisted the complainant with his statement but they did not attend. On this basis, we cannot be satisfied as to the amount of assistance they provided the complainant in making the statement nor, as a consequence, can we be satisfied as to the reliability of the contents of the statement.
2. On the evidence before us, we are satisfied that:
   • the complainant's unsigned statement was originally taken down in English on 4 and 5 January 2018 with the assistance of the two support people;
   • Detective Senior Constable Mann did not ask the complainant to sign the statement written in English because he did not appear to speak or read English well enough to understand it;
   • although the English statement was subsequently translated into the complainant's native pidgin, there is no evidence that the complainant adopted the contents of this translated statement;
   • there is no affidavit or other confirmation from the translator attesting to his or her process in translating the statement.
3. Whilst we are not bound by the rules of evidence, we are required to accord procedural fairness to parties before us.
4. Bearing this in mind, our concerns about the reliability of the complainant's statement (as considered above) are increased by:
   • the unavailability of the two support persons to give evidence about the extent of their assistance to the complainant in preparing the statement;
   • the concerns of Detective Senior Constable Mann that the complainant could not understand the English statement well enough to sign it.
5. The signed pidgin statement by the complainant does not allay our concerns. This is because there is no evidence as to the translation process and because it is not in dispute that the pidgin statement is simply a translation of the English statement which, for reasons set out above, we cannot accept as reliable.

1. In refusing the applicant a working with children check clearance the Children's Guardian made the following findings:

Despite the applicant's denials that the complainant was vulnerable, the [Children's Guardian] finds that the complainant is considered vulnerable due to his low socio-economic status, life-threatening health condition, age gap and dependence on the applicant while he was staying in Australia.

The complainant was isolated and reliant on the applicant for his daily needs and medical care. The [Children's Guardian] remains concerned that the applicant has not been able to recognise the vulnerability of the complainant.

The [Children's Guardian] submits that the applicant has not provided any further information or evidence that would persuade the [Children's Guardian] to change the view that on the balance of probabilities the applicant exploited a vulnerable adult. It is proposed that this is indicative of the applicant posing a real and appreciable risk to the safety of children.

1. The applicant denies that the complainant was a vulnerable person.
2. To determine whether, on the evidence before us, the complainant was a vulnerable person, we will consider the nature of relationship between the complainant and the applicant, including whether the complainant was part of the medical program coordinated by the applicant.
3. It is not in dispute that the applicant established a medical program in 1980 to assist Pacific Islanders to receive free medical treatment in Australia. A limited number of people would be accepted on the program each year and, when they arrived in Australia for treatment, would either be accommodated in a house close to the hospital or, when that accommodation was unavailable, at the applicant's house. Following the establishment of the program, the applicant, who had other work-related roles on the island, became the coordinator and patient liaison officer for the medical program.
4. In support of his evidence, the applicant tendered a copy of the program's patient protocol that states, in part:

Applications for treatment...shall be made by the Chief Medical Officer in conjunction with heads of the relevant Department as budget holders and clinical leads, the accepting Senior Medical Practitioner (SAP) and Application for treatment under the...agreement shall be made by the accepting Senior Medical Practitioner (SMP) in conjunction with Patient Liaison. The Request for Admissions along with letter of support must be made to the Hospital Executive according to the Delegation Manual.

Application seeking to exceed the financial threshold and/or patient number will require Executive Chief Officer or higher approval.

If the patient is accepted by the Hospital...Patient Liaison will assist the patient with their Medical Treatment Visa..Patients will only be accepted once a Medical Treatment visa has been provided...Applications for treatment under the program shall be made by the chief medical officer in conjunction with heads of the relevant departments as budget holders and clinical leaders.

For patients requiring a visa, a letter of acceptance is prepared and forwarded to the Department of Foreign Trade and National Referral Hospital for clinical assessment and approved by Overseas Referral Committee (Chaired by the Medical Superintendent of the [National Referral Hospital] in support of patient visa).

1. In light of the applicant's evidence in conjunction with the patient protocol document, we are satisfied that whilst the applicant had some role in the selection of patients for the medical program, the protocol did not invest him, in his patient liaison role, with the power to add or drop patients from the medical program.
2. It is not in dispute that the applicant first communicated with the applicant in September 2016 on the gay dating app, Grindr. At the time, the applicant was in Australia while the complainant was in the Pacific Island where he had been born and raised. The two first met in person in November 2016 when the applicant travelled to the Pacific Island for business.
3. We accept the applicant's evidence that his relationship with the complainant became sexual as soon as the applicant arrived on the Pacific Island. This is corroborated by a series of text messages between the applicant and complainant indicating an enthusiastic, consensual sexual relationship between the two men.
4. We also accept that at the time they first met, the applicant had no knowledge of the complainant's health issues, namely that, as a teenager, he had been diagnosed with a cardiac condition.
5. We accept that the applicant was first aware of the complainant's cardiac problems close to a week after the applicant's arrival in the Pacific Island. The applicant had invited the complainant to a party to celebrate the birthday of a former patient who had been successfully treated on the medical program. It was on this occasion, we accept, that the complainant disclosed his heart condition to the applicant.
6. Accordingly, we are satisfied that when they met, the complainant was neither a participant nor a prospective participant in the medical program. On the evidence before us, we are satisfied that the applicant was first assessed by the cardiologist for the program some months after the applicant had returned to Australia.
7. In cross examination in these proceedings, the applicant gave the following explanation for the complainant's subsequent visit to Australia in March 2017:

We had a fling, a sexual relationship in the..islands, which soured and when he come to Australia, it was an opportunity for him to do some work around the place and have a work-up for potential surgery in the future. He was not on the [hospital] program, he was not a patient.

Was the complainant accepted onto the medical program?

1. According to the protocol, part of the process for obtaining a medical visa to come to Australia requires a letter of acceptance to be sent to the Department of Foreign Affairs and Trade.
2. It is not in dispute that the complainant arrived in Australia on 27 March 2017 on a medical visa. Nor is it in dispute that he was unable to come to Australia on a tourist visa because a travel block had been placed on him. There is no material before us to explain this travel block. We accept the applicant's evidence that such a block could be overridden by a hospital request for a medical visa for the complainant. We also accept that the applicant approached the hospital to request a medical visa to enable to complainant to come to Australia for medical treatment.
3. In his evidence, the applicant clarifies the complainant's need for medical treatment in early 2017:

There was a medical reason that he should have a workup for surgery in the future and I could facilitate a few things which I did. For instance, his dental work. You can't put a prosthetic valve into a mouth that's full of dental caries. And I provided dental for him. [The Australian Hospital was] never involved in this, at this visit. And this was done privately. And [the complainant] did some work around the place and was paid. So he could have some money to go home. There was no question at all that there was anything sexual between us because he arrived with an attitude that what was there was there and it had long gone.

1. We accept that the cardiologist was surprised that the complainant should have come to Australia on a medical visa in March 2017 given there would be no funding for the surgery the complainant needed until the following financial year, commencing on 1 July 2017.
2. In his statement the cardiologist explained that:

I was surprised that [the complainant] had arrived in Australia so early, because I was of the belief that the program had exhausted its budget for treatment for the 2016/2017 financial year. During this conversation, I didn't get the impression that [the complainant] was in need of an urgent assessment or hospitalisation. [The applicant] outlined there might be other ways of funding [the complainant's] treatment, such as via funding from donors.

1. On the evidence before us, we find that the applicant assisted the complainant to be granted a medical visa so that he could overcome his travel block and stay with the applicant. To be granted the medical visa, the complainant needed to have been accepted on the medical program, which we are satisfied he was. Instead of coming to Australia to have the surgery he needed, we are satisfied he would be doing 'a work up' towards the surgery, namely attending to any dental work he required.
2. We accept the cardiologist's evidence and we find that, although the complainant came to Australia on a medical visa and so, for the reasons set out above, must have been accepted onto the medical program, he was not on the list for heart surgery because there would be no funding available until the next financial year. This is corroborated by the spreadsheet headed 'List of All the Cardiac Patients 2017' that does not include the complainant's name.
3. On the evidence, we find that whilst the applicant may have hoped the two would continue their sexual relationship, it became clear on the complainant's arrival that he was no longer sexually interested in the applicant.
4. It is not in dispute that the complainant did have heart surgery, but not until November 2018.

What was the complainant's medical condition on his arrival in Australia in March 2017?

1. When reviewing the complainant in the Pacific Island in January 2017, the cardiologist found him to be in need of cardiothoracic surgery within twelve months, to correct a leaky aortic heart valve.
2. In later correspondence to the applicant dated 19 April 2017 - after the complainant had arrived in Australia, the cardiologist wrote:

I am certainly happy to assess [the complainant] over the next week, but we don't have any funding for treatment, such as valve replacements, until July. I'm not sure why he has arrived so early.

1. This evidence supports the applicant's claim that the complainant was not on the list for heart surgery when he arrived in Australia in March 2017.
2. In a letter to the applicant dated 6 December 2017, the cardiologist confirmed he had been advised that the complainant could return for surgery and agreed to reassess the complainant's suitability then.
3. It is not in dispute that the complainant returned to Australia for heart surgery in November 2018.

Did the applicant threaten to take the complainant off the medical program?

1. The applicant gave evidence that, despite his own expectations, he and the complainant did not have a sexual relationship when the complainant came to stay with him in Australia. According to the applicant, the complainant was rude and missed both a medical appointment and a dental appointment the applicant had arranged to ensure the complainant would be ready for heart surgery in the future. The applicant gave evidence that after he and the complainant had argued, the complainant had 'left the house and I had no control over him after that.'
2. The applicant agreed that this concerned him:

We have so many patients and finite amount of space. We want people that are going to comply and that are going to show that they've - you know that they're prepared to... be compliant with treatment, that they're going to take their medication, they're going to attend physio, rehab and they're going to be you know good patients. Yes we want that.

1. In evidence in these proceedings, the applicant agreed that he had threatened to take the complainant off the program because he was angry. In his oral evidence, the applicant explained that, in fact, he'd never actually had the authority to put anyone on the program or to take them off it. This accords with the statement in the program's patient protocol that applications for treatment under the program shall be made by the chief medical officer in conjunction with heads of the relevant departments as budget holders and clinical leaders.
2. The applicant also agreed that he'd threatened to release to the complainant's family compromising photographs and messages sent by the complainant. On the evidence before us, we accept that the applicant did not carry out this threat.
3. Such a threat does not reflect well on the applicant nor does his later lie to the Children's Guardian that the complainant had come to Australia in 2017 for fruit picking. Neither instance indicates to us, however, that the applicant might pose a risk to the safety of children.
4. Whilst there is evidence before us that the applicant covered the complainant's day-to-day expenses including his accommodation and food costs, there is no evidence that the complainant was reliant on this. Indeed, there is no specific evidence of the complainant's financial circumstances at all. It is not in dispute that the complainant had family in Australia and that he stayed with these family members when he left the applicant's house.

1. On the evidence before us, we are not satisfied that the complainant was a vulnerable person over the period 2016 to 2017 such that the applicant's treatment of him indicates that he might pose a risk to the safety of children.
2. This is because, as detailed above:
   • the complainant was a twenty-two year old man when he met the applicant;
   • the complainant had his own profile on the adult gay dating app, Grindr;
   • the complainant's Grindr profile was explicit as were his messages to the applicant;
   • a sexual relationship between the applicant and the complainant began immediately upon the applicant's arrival in the Pacific Island in November 2016, when the complainant came to the applicant's hotel room. There is no evidence before us that the complainant was in any case coerced into this relationship;
   • we are not satisfied that the complainant needed to be reliant on the applicant for his living expenses and accommodation, especially as accommodation was later made available to the complainant by relatives living interstate;
   • although the applicant had advised the complainant of his possible eligibility for the medical program and we accept that the applicant could make recommendations in relation to prospective and selected patients, on the evidence before us we are not satisfied that the applicant, acting alone, had the power to either confirm a patient's place on the medical program or remove him from it.
3. Whilst the applicant did not necessarily behave in a dignified way, we are satisfied that his threats to send compromising photographs of the complainant's mother were made in the context of a sexual relationship that had soured, rather than in the context of an exploitative relationship between the applicant and the complainant.
4. As set out above, we cannot be satisfied the alleged sexual assaults ever took place. On the evidence before us, we are of the view that the sexual relationship between the complainant and the applicant was consensual and that the sexual relationship did not continue when the complainant came to Australia in March 2017.
5. For these reasons, we cannot be satisfied that the applicant ever sexually assaulted the complainant or that the complainant was a vulnerable person.
6. When reports of the applicant's alleged sexual impropriety with young men were published in the Pacific Island where homosexuality is illegal, the applicant successfully sued the newspaper for defamation. In the absence of evidence from the journalist in question and in light of the applicant's successful action in defamation together with the Pacific Island's prohibition on homosexuality and the applicant's sworn evidence that the media reports were wrong, we cannot be satisfied that the applicant was guilty of sexual impropriety as alleged in the newspaper reports.
7. Assuming that these allegations are not groundless, we retain our view that the applicant does not pose a risk to the safety of children. This is because the newspaper reports are clear that the allegations relate to adult men and not children. On the evidence before us and given the prohibition against homosexuality in the Pacific Island, we cannot be satisfied that the allegations were aimed at improper rather than consensual sexual activity between adults.

What weight should be given to the confidential information before us?

1. This tribunal has the power to:
   • order that evidence be heard and taken in a private hearing, in the absence of one or more parties (s 49(2) Civil and Administrative Tribunal Act 2013)
   • prohibit the publication and disclosure to the public and to one or more parties and their legal representatives of material provided to the Tribunal in confidence (s64(1)(c), s 64(1)(d) Civil and Administrative Tribunal Act 2013)
   • prohibit the publication and reporting of any private hearings including any oral evidence give during such hearings (s64(1)(b), s64(1)(c) Civil and Administrative Tribunal Act 2013).
2. On application by the Children's Guardian, the Tribunal, differently constituted, allowed confidential information into evidence. Confidential hearings were then held before this Tribunal, as presently constituted, in the absence of the applicant and his legal representative.
3. The Children's Guardian provided the applicant with the following description of the material placed before us in confidence:

information in relation to recorded events that did not result in charges from the New South Wales Police COPS database in relation to [FWI] in the context of abuse, violent or sexual offences against children or adults in the period prior to April 2017.

1. The applicant submits that he has been denied procedural fairness by not being advised of the material tendered in confidence and by the exclusion of the applicant and his legal representatives from the confidential hearings.
2. Having considered the applicant's submission, we are satisfied that to enable efficient police investigation and to protect the sources of this information, it should be kept confidential.
3. [NOT TO BE PUBLISHED]

1. [NOT TO BE PUBLISHED]
2. [NOT TO BE PUBLISHED]
3. [NOT TO BE PUBLISHED]
4. [NOT TO BE PUBLISHED]
5. [NOT TO BE PUBLISHED]
6. [NOT TO BE PUBLISHED]
7. [NOT TO BE PUBLISHED]
8. [NOT TO BE PUBLISHED]
9. [NOT TO BE PUBLISHED]

1. [NOT TO BE PUBLISHED]
2. [NOT TO BE PUBLISHED]
3. [NOT TO BE PUBLISHED]
4. In light of these concerns, we give no weight to this information report and find the allegations raised in it to be groundless.

Does the applicant pose a real and appreciable risk to the safety of children?

Consideration of the s30(1) matters

1. As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a))

1. The matters that led to the refusal of the applicant's working with children check clearance are allegations made against him that he sexually assaulted a 23- year-old Pacific Islander man. Although the allegations are serious, on the evidence before us and for the reasons set out above, we are not satisfied the assaults took place.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

1. As set out above, we are not satisfied the offences ever occurred. Since the allegations were made in 2017, no further complaints have been made against the applicant.

The age of the person at the time the matters occurred (s30(1)(c))

1. As stated above, we are not satisfied the offences alleged occurred. In 2017, the applicant was 63 years old.

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 (s30(1)(d))

1. The complainant was 23 years old at the time the offences were alleged to have occurred. For the reasons set out above, we cannot be satisfied that, at the time of the allegations, he was a vulnerable person.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

1. In 2017, the applicant was 63 years old and the complainant was 23 years old. Accordingly, there was a 40 year gap between them.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

1. The complainant was not a child. The applicant was aware of the complainant's age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

1. The applicant has been convicted of a number of driving offences, culminating in his being declared a habitual traffic offender and being prohibited from driving for some years. There is no dispute that the applicant's last driving offence was in 2014 and that he now holds a valid drivers' licence.
2. The applicant has provided character references attesting to his general trustworthiness, including in the company of children.
3. There is no dispute that, in the seven years since the complainant alleged that the applicant had sexually assaulted him, there have been no further or subsequent allegations of similar conduct by the applicant or, indeed, of any criminal conduct at all.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

1. For the reasons set out above, we are not satisfied that the offences alleged to have been committed by the applicant took place. Accordingly, we are satisfied that any such behaviour towards children is unlikely to occur.

Any order of a court or tribunal that is in force in relation to the person (s30(1)(il)

Information given by the applicant in, or in relation to, the application (s30(1)(j))

1. According to the risk assessment report prepared by the Children's Guardian:

The applicant's referees have all known the applicant for some years and most have socialised with the applicant. All state that they know that the applicant does not have a sexual interest in children, that the applicant is not a paedophile and have reported that they have not witnessed any inappropriate behaviour by the applicant towards children. It must be noted that the [Children's Guardian] has not claimed that the applicant is a paedophile or that he has a pervasive sexual interest in children, rather, the reason for the proposed refusal of the applicant's WWCC relates primarily to concerns that the applicant is alleged to have exploited a vulnerable adult.

1. The applicant has provided references by people who trust him to be unsupervised around their children.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl)

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

1. No further matters have been put forward for our consideration.

1. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.
2. For the reasons set out above, we are not satisfied that the applicant poses a real and appreciable risk to the safety of children.

Would a reasonable person would allow the applicant to have direct, unsupervised contact with their children?

1. The reasonable person test is an objective standard. The reasonable person would acquaint themselves with all the evidence and submissions that are set out above. (see FSQ v Children's Guardian [2024] NSWCATAD 302)
2. In considering this test, we note that the Children's Guardian does not claim that the applicant is a paedophile or has any sexual interest in children.
3. We accept that the applicant has received a number of accolades in recognition of his dedication and services to the medical community where he worked for many years.
4. A letter from a parent who trusted the applicant to look after her child wrote:

Over the years [the applicant] has helped my family when one of my children was experiencing a severe mental health issues as a minor. He was gracious enough to welcome my child into his home and care for him...At no point was I in fear for my child, in fact I was safe in the knowledge that my child was safe....[A]ll of my children any take the opportunity they can to spend time with him...He provides such valuable services to the wider community both professionally and in his personal life and without expectation of or desire for recognition or recompense,

1. Other references attest to his devotion in caring and nursing very sick Pacific Islander patients. Referees for the applicant include prominent Australians who attest to the applicant's distinguished medical record and much-needed exemplary service to his patients.
2. A former Australian judge wrote that:

I had the privilege of seeing [the applicant's] work at the [Australian hospital] quite often and can say with certainty that the allegations that he used for his own sexual satisfaction the medical program he ran there with such distinction and selflessness are wicked and wrong....I met many of these people...Not one of these program patients ever mentioned sex or suspicious behaviour when talking of [the applicant]. Love, gratitude and respect were their overwhelming sentiments.

1. It is not in dispute that the applicant trained as a nurse and, over forty years ago, established a program to provide specialised medical care in Australia to patients who would not have access to such care in the Pacific Island where they live. We are satisfied that the applicant co-ordinated this program until 2017.
2. In a 2010 newspaper article published in the Pacific Island one of the island's newspapers, executive director of the Australian hospital said that 'without [the applicant's] support, the hospital could not continue to support the patients.'
3. In the same newspaper article, another worker on the program spoke highly of the applicant's involvement in the program, noting that he:
   • advocated for the patients so effectively with the medical specialists;
   • gave his time and energies in attending to the patient's daily needs;
   • provided for the funding shortfalls for the program with his personal funds.
4. In light of this evidence, we are satisfied that a reasonable person would allow the applicant to have direct, unsupervised contact with their children.
5. For the reasons set out above, we remain satisfied that a reasonable person with knowledge of the confidential information before us would allow the applicant to have direct, unsupervised contact with their children.
6. [NOT TO BE PUBLISHED]

Is it in the public interest to grant the applicant a working with children check clearance?

1. We agree with the Children's Guardian:
   • that the public interest is determined against the context of the safety, welfare and wellbeing of children (see CYY v Children's Guardian (No 2) [2017] NSWCATOD 262.)
   • that, in assessing the public interest, priority should be given to the broader interests of the community over the private interests of the individual concerned (see Smith v Commissioner of Police [2014] NSWCATAD 184
   • that the Tribunal ought to have some regard to the rehabilitation of offenders, the right of a person to engage in work and in community affairs and the right of a person to have contact with children where they possess the appropriate skills and experience. (see ZZ v Secretary, Department of Justice [2013] VSC 267)
2. Despite the fact that the applicant has not been registered as a nurse since 2011, we are satisfied that he wishes to obtain a Working with Children Check Clearance to enable him to return to work in the health system. His current poor health notwithstanding, we are satisfied that the applicant has a strong desire to work within his field of expertise.
3. As set out above, it is not in dispute that the applicant has a number of convictions for driving while under the influence of alcohol and for driving whilst unregistered. The applicant was last charged with a driving offence in 2014 and we accept his evidence that he has addressed the issues that led to this earlier offending.
4. Given the applicant's extensive experience in medical care and management and his desire to continue working in this important area, we are satisfied that it would be in the public interest to grant the applicant a working with children check clearance. Nothing in the confidential information before us changes our view in this regard.

(1) The decision of the respondent dated 19 May 2023 to refuse the applicant's working with children check clearance is set aside.

(2) In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

(3) Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the name of the applicant and the complainant 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

(4) Pursuant to ss64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal, the respondent and the respondent's legal representatives, the publication, broadcast or disclosure of: the confidential hearing, including any confidential material and any evidence given during the hearing, the contents of all paragraphs in these reasons marked [NOT FOR PUBLICATION], or the name of the applicant, 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.

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.

09 January 2026 - Order amended under S.63 to include to Order 3 and 4.

17 March 2026 - Coversheet - Representation typographical error corrected