GGA v Children's Guardian [2026] NSWCATAD 21;

1. The issues arising from the Applicant's application, and the answers to those issues, are:

(1) Does the Tribunal have jurisdiction to determine this application? - Yes.

(2) Has the Applicant proved that he does not pose a risk to the safety of children? - No.

(3) If so:

(a) Would a reasonable person 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 (reasonable person test)? - Not necessary to decide given the answer to Issue 2.

(b) Is it in the public interest for the Applicant to have a clearance (public interest test)? - Not necessary to decide given the answer to Issue 2.

Does the Tribunal have jurisdiction to determine this application?

1. Since these proceedings commenced, the WWC Act has been amended by the Child Protection (Working with Children) and other Legislation Amendment Act 2025 (NSW) (Amendment Act). The Amendment Act removes the provisions entitling individuals to apply to the Tribunal for administrative review of the Children's Guardian's decisions in respect of clearances. The relevant sections of the Amendment Act commenced on 23 September 2025.
2. Clause 27(2) of Schedule 3 of the WWC Act states that an application for an enabling order made before the date on which the Bill for the Amendment Act was first introduced into Parliament (that is, 5 August 2025) must be determined by the Tribunal as if the Amendment Act had not commenced. In this case the application was made on 23 February 2024. Therefore, the Tribunal retains jurisdiction to determine the Applicant's application.
3. The provisions of the WWC Act referred to above and below are provisions of the WWC Act in force prior to 23 September 2025.

Has the Applicant proved that he does not pose a risk to the safety of children?

1. A "disqualified person" is a person who, at the time of making the application for a clearance has been convicted, as an adult, of an offence specified in Schedule 2 of the WWC Act (WWC Act, s 18(1)(a)).
2. The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of the WWC Act in respect of an offence specified in the order (an enabling order) (WWC Act, s 28(1)).
3. A disqualified person may only make an application for an enabling order if the person has been refused a clearance or the person's clearance has been cancelled because the person is a disqualified person (WWC Act, s 28(3)). In this case, the Applicant can apply to the Tribunal for an enabling order, as the Respondent refused his application for a clearance because he is a disqualified person.
4. If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to grant the person a clearance (WWC Act, s 28(6)).
5. In any proceedings where an enabling order is sought, it is to be presumed, unless the Applicant proves to the contrary, that the applicant poses a risk to the safety of children (WWC Act, s 28(7)). A reference to a "risk to the safety of children" is "a reference to a real and appreciable risk to the safety of children" (WWC Act, s 5B).
6. In determining this application, the Tribunal must consider the following factors (WWC Act, s 30(1)):

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

(c) the age of the person at the time the matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time it 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 or of any other matters that caused the assessment 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 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.

1. The object of the WWC Act is to protect children, firstly, "by not permitting certain persons to engage in child-related work", and secondly, "by requiring persons engaged in child-related work" to have clearances (WWC Act, s 3). The "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation" of the WWC Act (WWC Act, s 4).
2. The Tribunal's approach to risk assessment is protective and not punitive: Commissioner for Children and Young People v FZ [2011] NSWCA 111, at [61].

1. It is undisputed that the Applicant was charged in 2004 and subsequently convicted in 2005 of assault with act of indecency. That offence is a disqualifying offence. The Applicant was 28 years of age at the time of the offence and the victim was 18.
2. The victim, who was living in the same street as the Applicant, was the girlfriend of a person that the Applicant knew was a drug dealer. The Applicant had attended their residence at the time of the offence to purchase drugs. The Applicant admits that at the time he was bingeing on multiple drugs and alcoholic spirits. The Applicant states that he had not slept the night before the offence.
3. The Applicant stated in this Affidavit that he has no memory of the offence, but accepts the victim's version of events. Although he does not recall the offence, he knows he is responsible for what he did and is ashamed and sorry for what happened.
4. The Applicant relies on a psychological assessment completed by Dr Thomas Dornan, registered psychologist, in July 2024. Dr Dornan noted in his report that the Applicant reported that the disqualifying offence occurred when he had used an excessive amount of amphetamines. Dr Dornan noted that the Applicant recalled that he attended the victim's home to purchase drugs "but not much else".
5. During cross-examination, however, the Applicant stated that he remembered being in the house by himself with the victim, and had some memory of physical contact with her, but he did not think that he was doing anything criminal, and then got charged. The Applicant stated that he "got up early, started drinking, and then woke up in a cell". The Applicant stated that he could not really say anything about whether the allegations are true, but he pleaded guilty to the offence.
6. The Police Facts Sheet for the offence contains the following agreed facts:

(1) The Applicant initially attended the victims' house at 8:00 am on the date of the offence, and was let into the house by the victim. The Applicant then had a discussion with the victim's boyfriend. The Applicant left a short time later, with the boyfriend leaving shortly thereafter for work.

(2) At 9:15am, on the same day, the Applicant returned to the house and was met by the victim. The victim informed the Applicant that her boyfriend was not present. The Applicant then indicated his intention to have sexual intercourse with the victim.

(3) The victim was concerned about the actions of the Applicant, and placed a rabbit cage between herself and the Applicant.

(4) The Applicant continued with his requests for sexual intercourse, which were declined by the victim. The victim attempted to phone her boyfriend, but spoke with his mother and stated that she needed her boyfriend.

(5) After the victim repeatedly asked the Applicant to leave, he exited the house and closed the sliding door. However, on about five occasions he would re-open the door, make a sexual comment to the victim, and then re-close the door.

(6) The Applicant then walked towards the front gate. The victim, thinking that the Applicant had left, returned to her bedroom. However, was then confronted by the Applicant standing at the entrance to her bedroom. The victim asked the Applicant to leave.

(7) What followed involved the Applicant pushing the victim causing her to fall onto her bed, the Applicant lying on top of the victim and rubbing his groin against her, the Applicant placing his hands underneath the victim's clothing while she struggled to stop him from touching parts of her body, and the Applicant forcibly kissing the victim.

1. The Applicant was initially charged with attempting sexual intercourse without consent, however this charge was withdrawn. As noted above, the Applicant was convicted in 2005 of assault with an act of indecency.

1. Apart from the disqualifying offence, the Applicant has a criminal history and has come to the attention of the Police from 1992 through to 2020. The Applicant's offending behaviour and involvement with Police often occurred when he was using alcohol and/or drugs. The Pre-Sentence report for the disqualifying offence states that the Applicant was known to react with violence when under the influence of alcohol or other intoxicating substances, and he had participated in a residential rehabilitation program in 2002.
2. Prior to the disqualifying offence in 2004, the Applicant had a criminal history involving street offences, property offences, traffic offences, assault and affray matters and violent disorder.
3. In his Affidavit, the Applicant states that he stopped going to school at the end of year 10 when he was 16, and from about this time started to get into trouble with the Police. The Applicant states that to prove himself to the large group of teenage boys he hung out with, he would become aggressive, get into fights and smoke marijuana. The Applicant states that in his early 20s, he started using speed, and would binge regularly on that with a mixture of alcohol and marijuana. This continued until the disqualifying offence, which involved the Applicant consuming drugs and alcohol.
4. The Applicant's first child was conceived when he was 16 years old and the mother of the child was under 16. The Applicant has maintained that he was not aware of her age and thought that they were of a similar age. The relationship lasted for three years. During cross-examination about this situation, the Applicant stated that a "lot of stuff happened back then" which "can't happen now".
5. In 2006, 2007 and 2010, the Applicant was convicted of contravening apprehended domestic violence orders (ADVOs) protecting various persons. In the 2006 offence, the Applicant had approached the 15-year-old female in need of protection within 12 hours of consuming alcohol, in breach of the ADVO. It was identified that the Applicant's use of alcohol was the main contributing factor to these offences.
6. In his Affidavit, the Applicant admitted that he has a problem with aggressive behaviour when he takes drugs and binges on spirits. The Applicant states that he was never physically violent with his partner or the children and he was "like a dog - all bark and no bite".
7. During cross-examination, the Applicant conceded that the early years of his current relationship involved some violence, and that his partner sought an ADVO against him because of the way he behaved when he was drunk. The Applicant admitted that he behaved violently when he was drunk, however he does not behave that way now.
8. In 2008, the Applicant pleaded guilty to possessing an offensive weapon with intent. The agreed facts indicate that the Applicant and his brother entered the car of a person stopped in traffic. The Applicant's brother threatened the driver, punched him in the face and directed him to drive to a Station. Police later attended a premises where the Applicant was seen carrying a 1.5m long tree branch and appeared to be intoxicated. The Applicant was sentenced to 12 months imprisonment with a non-parole period of four months for this offence.
9. In 2013, the Applicant was convicted of supplying drugs.
10. Between 2014 and 2016, there were incidents reported to Police of verbal arguments between the Applicant and his partner, where the Applicant was alleged to have threatened his partner with physical harm. The Applicant could not recall these incidents during cross-examination, however conceded that he was still drinking alcohol reasonably heavy on occasion during this time.
11. In 2017, the Applicant was found by Police to be driving with a high range Prescribed Concentration of Alcohol (1.78). During cross-examination, the Applicant stated that he thought he "was good", that he did not crash the car, and that he "had been drunker".
12. In 2020, Police attended the Applicant's home, where he was recorded by Police to be very intoxicated. The Applicant became argumentative and abusive to Police before being taken back inside the house by other guests. During cross-examination, the Applicant stated that he recalled that he was a "bit intoxicated" and had to leave the house so that he would not get in trouble. The Applicant could not recall how many drinks that he had on this occasion.
13. During cross-examination, the Applicant could not recall the last time he had used illicit drugs. When he was asked when was the last time he had consumed alcohol, the Applicant stated that he had drunk five to six standard drinks of beer two days prior to the hearing. The Applicant stated that if he is staying at home, he will drink once a week. The Applicant stated that if he was around his partner and children, he does not drink. The Applicant stated when he is at his own house, he is a "free leg" and "can drink as much as I want".
14. The Applicant told Dr Dornan during the psychological assessment in July 2024 that he had achieved abstinence from alcohol and had not relapsed back into alcohol use in almost seven years. In his report, Dr Dornan acknowledged that the Applicant's alcohol and drug use had been a contributor to his past offending, including sexual assault, violent offending and domestic violence between him and his former partner. In his report, Dr Dornan stated that there is still a risk if the Applicant should return to problematic levels of alcohol consumption in the future, that this would elevate his risk rating, although it would not be significant enough to raise it beyond a low rating.
15. When the Applicant's disclosure of current alcohol use was put to Dr Dorman, he stated that this would increase the risk levels, and the risk assessment of the Applicant would need to be reformulated.
16. In relation to what the Applicant has done since the disqualifying offence and the conduct of concern, during cross-examination, the Applicant stated:

(1) He has attended residential rehabilitation programs in the past, for both drugs and alcohol, but this did not assist him in his use of drugs and alcohol.

(2) He has not undertaken any counselling.

(3) Other than attending the assessment with Dr Dornan, he has not had any interactions with a psychologist or psychiatrist.

(4) He could not recall if he had any interactions with a psychologist or psychiatrist while in custody.

(5) He has not completed any programs in relation to domestic violence, while in custody or outside custody.

(6) He does have to undergo drug testing at times, when he is working.

1. [Not for publication]
2. [Not for publication]
3. Due to its very low evidentiary value, the Tribunal has not placed any weight on the confidential material that was tendered by the Respondent during the confidential hearing.

1. The Applicant submits that he wants to help raise his grandchildren and his current residential arrangements are taking a toll on his family. The Applicant submits that he is "walking a new line now" than what he had been walking in the past. The Applicant conceded to drinking alcohol at present, but not around his partner and children.
2. The Respondent submits that the Applicant remains a risk to the safety of children, given the disqualifying offence and the Applicant's conduct of concern since this time. The Respondent submits that whilst on any measure, the Applicant's consumption of alcohol pales in comparison to his alcohol use in years past, the fact is that he still consumes alcohol to a significant degree. The Respondent submits that the real risk in the Applicant's history is the risk of engaging in aggressive and disinhibited behaviour while under the influence of alcohol, and if he does so in the presence of his partner or children, this poses a risk to the safety of children. The Respondent submits that this risk factor is still well and truly present and that the Applicant has not rebutted the presumption that he does not pose a risk to the safety of children.

1. The Tribunal must consider the factors in s 30(1) of the WWC Act in determining the Applicant's application and assessing whether the Applicant has discharged the onus to prove that he is not a risk to the safety of children.

1. The Tribunal is of the view that the disqualifying offence is very serious. The Applicant perpetrated a contact sex offence against a much younger woman alone in her own home. The Applicant continued with the offending conduct despite the victim requesting that he stop and leave, and her efforts to physically resist him. Neither the Applicant's level of intoxication nor his claimed lack of memory of the offence, reduce the seriousness of what occurred.
2. The Applicant has been convicted with subsequent offences involving violence and alcohol use, and has otherwise continued to come to the attention of Police because of his conduct while intoxicated. The violence against his partner places any child in the family at risk of either physical or psychological harm if exposed to violence. The Applicant's statement that he was never physically violent with his partner or the grandchildren, does not acknowledge the serious impact that other forms of violence including threats of harm, verbal abuse and behaviour which induces fear, can have on the other person. While the Applicant's conduct of concern since the disqualifying offence is not of the same seriousness, the Tribunal finds that the conduct is relevant to the assessment of whether the Applicant poses a risk to the safety of children.

Age and conduct of Applicant since the disqualifying offence and other conduct of concern

1. The disqualifying offence occurred about 21 years ago, when the Applicant was 28 years of age. The Applicant's last interaction with Police due to intoxicated behaviour, in the evidence before the Tribunal, occurred in 2020.
2. The Applicant is now 49 years of age.
3. The Applicant has continued to engage in violent behaviour whilst intoxicated, since the disqualifying offence in 2004 and up until 2020.
4. The Applicant has not engaged in any counselling, education or other treatment to address his alcohol use, which continues. The Applicant has not participated in any domestic violence education or counselling in respect of the domestic violence he has perpetrated against his partner.

Age and vulnerability of the victim of the disqualifying offence

1. The victim of the disqualifying offence was 18 years old and lived in the same street as the Applicant at the time of the offence. While the victim was not a child, she was 10 years younger than the Applicant. The Applicant assaulted the victim in her own home while he knew she was alone. This placed the victim in a position of vulnerability in the circumstances.

Likelihood and impact of the Applicant repeating the conduct

1. The Applicant's history of alcohol use demonstrates that his behaviour while intoxicated can be uninhibited. The Tribunal is not satisfied that the Applicant will not drink alcohol or be drunk when in the presence of his partner and grandchildren.
2. While the Applicant has not been convicted of a sexual offence since 2004, he has continued to engage in violent behaviour while intoxicated, and has not ceased his alcohol use. The Applicant's violent behaviour has primarily occurred in the context of his relationships. There does remain a likelihood that a child could be exposed to violence by the Applicant while in an intoxicated state.

1. In assessing risk, the Tribunal has also considered the Applicant's undisputed evidence in relation to his contribution to his community in sharing his traditional knowledge and culture. However, that contribution is not relevant to the risk he poses to the safety of children.
2. The Applicant relied on the risk assessment completed by Dr Dornan, who assessed that the Applicant was not a risk to the safety of the children. Dr Dornan's assessment focused on the Applicant's risk of sexual offending and not other violent offences, such as a domestic violence.
3. The Applicant, however, was not truthful to Dr Dornan about his current alcohol use. While not explored fully during the hearing, the Applicant also stated that he did not tell Dr Dornan about thoughts he was having about self-harm. Dr Dornan conceded that the risk assessment of the Applicant would consequently need to be reformulated. When Dr Dornan was asked about how his opinion may change if the Applicant had not been abstinent from alcohol for seven years, and Dr Dornan's assumption was incorrect, Dr Dornan stated that this would definitely increase the risk levels. Dr Dornan also noted that this would be a direct intention by the Applicant to avoid the truth throughout the assessment, and much of the assessment was based on the Applicant's input. Dr Dornan stated that if the risk mitigating factors (which included abstinence from alcohol) were no longer applicable, then the risk would increase.
4. For expert medical opinion to be of any value, the facts upon which it is based must be proved by admissible evidence. The failure which justifies rejection of such opinion must be a failure in some one or more important data, not merely in a trifling respect: Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, at [9]-[10]. The facts upon which Dr Dornan relied when assessing the Applicant in relation to his alcohol use, were not based on accurate evidence. The Tribunal therefore does not place any weight on the risk assessment by Dr Dornan.

1. The starting point for the Tribunal is the presumption that the Applicant poses a risk to the safety of children. The onus is on the Applicant to prove to the contrary.
2. There is no dispute that much of the Applicant's offending conduct occurred. Having considered the s 30(1) factors, the Tribunal is not satisfied that the Applicant has discharged the onus to prove that he is not a risk to the safety of children. The Applicant's conduct in respect of and since the disqualifying offence is of serious concern. It is undisputed that the Applicant's substance use has led to his offending behaviour which spans many years, and this poses a risk to the safety of children. While the Applicant may have ceased the combined use of drugs and alcohol, the Applicant continues to drink alcohol regularly, which means that the risk remains. The Applicant's attempts at rehabilitation have not assisted him, and he has not done anything else, by way of education or counselling or other treatment, to mitigate the risk.
3. The Applicant has therefore failed to prove that he does not pose a risk to the safety of children.
4. Given that the presumption that the Applicant poses a risk to the safety of children remains, and the Applicant has not proven to the contrary, it is not necessary for the Tribunal to consider the reasonable person test or the public interest test in s 30(1A) of the WWC Act.

1. The Applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The Tribunal therefore refuses to grant the Applicant's application for an enabling order.
2. The Tribunal is satisfied that it is desirable to make orders which will prohibit the publication and disclosure of the confidential information, as well as publication and disclosure of the transcript and recording of the confidential hearing, to the Applicant and the public. Orders have previously been made by the Tribunal prohibiting the publication of the name of any persons referred to in the documentary material lodged in these proceedings, other than the name of an expert witness or an officer of a government agency.

(1) The Applicant's application for an enabling order is refused.

(2) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the transcript and recording of the confidential hearing is prohibited.

(3) Pursuant to ss 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the confidential material to the Applicant is prohibited.

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.