GSZ v Children's Guardian [2025] NSWCATAD 206;

1. The applicant provided the following in support of his application:

(1) His application for review submitted on 31 October 2024 attached to which was a copy of the decision under review;

(2) The applicant provided a large number of documents, which comprised a mix of evidence and submissions, and included annotations on the respondent's filed material. He also provided a number of references. Given the large volume of material he provided, at the hearing he clarified that he relied principally on the following:

(a) Submissions provided to the Tribunal on 25 and 27 February 2025

(b) Two sets of submissions provided to the Tribunal on 13 May 2025.

(c) A statutory declaration from his former partner; and

(d) A number of references.

1. After the hearing, but before the decision was made, the applicant provided further material to the Tribunal in the form of information he had received pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for which he had applied on 28 January 2025 and to which he received a response only on 27 June 2025. The respondent raised no objection to the Tribunal considering this material. The information comprised his child's Child Story (Department of Communities and Justice (DCJ)) file, apparently created after there had been reports to DCJ raising issues of whether the child was at "risk of significant harm" (ROSH) within the meaning of s 23 of the Children and Young Persons (Care and Protection) Act) 1998 (NSW).
2. The respondent provided the following material:

(1) A bundle of documents provided pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) on 19 December 2024;

(2) A bundle of further evidence filed on 17 April 2025, comprising police and court records;

(3) A bundle of supplementary evidence comprising a transcript of a court proceeding on 15 December 2022 provided on 2 May 2025;

(4) A second bundle of supplementary evidence comprising a transcript of a court proceeding on 22 January 2021 provided to the Tribunal on 13 May 2025; and

(5) Submissions filed on 13 May 2025.

1. The WWC Act establishes a statutory scheme the object of which (see s 3) is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have WWCC Clearances. Section 4 provides: "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".
2. Section 5B of the WWC Act provides that a reference to a "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children.
3. Section 5C is also relevant: it defines criminal history as including (by s 5C(1)(a)) convictions that are spent or for which a pardon has been granted and, by s 5C(1)(b), it includes "criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged".
4. By s 6(1), a person is engaged in "child-related work" if they are engaged in work that is specified in s 6(2) and which involves "direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work". A person is also engaged in "child-related work" if they are in a child-related role (see s 6.3) Section 7 provides for "additional child-related work".
5. Section 8 provides that a worker must not engage in child-related work unless the worker holds a WWCC Clearance of a class applicable to the work. By s 12, there are two classes of WWCC Clearances: volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.
6. Section 13 provides that a person may apply to the respondent for a WWCC Clearance. The application must specify the class of clearance applied for. A person who is refused a WWCC Clearance or a person whose clearance is cancelled is not generally entitled to make a further application for clearance until five years after the date of the notice of the refusal or cancellation: see s 13A of the WWC Act.
7. Division 3 of Part 3 of the Act provides for risk assessments which the respondent is entitled to undertake in a wide range of circumstances (and see s 15(3)). Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the WWC Act apply to the person. Schedule 1 identifies a number of "assessment requirement triggers". They comprise cases where there are proceedings and/or convictions against a person in relation to certain criminal offences, findings of misconduct against a person involving children, notifications of reportable conduct and negative notices in other jurisdictions.
8. Section 15(4) sets out a range of matters that can be considered in a risk assessment: these include the seriousness of the matters that caused the assessment; the age of the people involved; the time the matter occurred; the seriousness of the person's criminal history and their conduct since the matters occurred and the likelihood of repetition. By s 15(4)(k), the respondent may consider "any other matters [it] considers necessary". The matters listed in s 15 are broadly similar to those listed in s 30 which is set out in full below.
9. By s 16, the respondent is empowered to seek further information about an offence or related matter and may terminate an application or cancel an existing WWCC clearance if the person fails, without reasonable excuse, to provide that information. That is what occurred in this case.
10. Division 4 of Part 3 deals with determination of applications. By s 18(2), the respondent must grant a clearance to a person subject to a risk assessment unless the respondent is satisfied that the respondent poses a risk to the safety of children. If the respondent proposes not to grant a WWCC Clearance, by s 19 the applicant must be notified and given an opportunity to make a submission. Section 20 provides that a final decision must be made and notified to the applicant. If the decision is not to grant a WWCC Clearance, there must be reasons for the decision and the applicant must be notified of the right to seek a review of the decision under Part 4 of the Act.
11. Part 4 of the WWC Act provides for reviews and appeals. A person who has been refused a WWCC Clearance may apply to the Tribunal for review: see s 27(1).
12. Sections 30 and 30(1A) of the Act set out matters that the Tribunal must consider when exercising its jurisdiction under Part 4 of the WWC Act:

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.

(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.

1. Some key principles have been established by courts and tribunals when dealing with decisions under this Act. In BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE), Beech Jones J considered at some length the nature of a "real and appreciable risk" (cf s 5B of the WWC Act which was inserted in 2018). His Honour referred to the decision of the High Court in M v M (1988) 166 CLR 69; [1988] HCA 68 (M v M), where that Court was required to consider the issue of risk in the context of custody and access disputes about children. Specifically, the High Court was assessing the nature of the proof required in a case where an allegation of sexual abuse had been made but had not been the subject of a criminal conviction. It was customary in those circumstances to refer to the earlier decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), a case where what was in issue was proof of adultery. The High Court in Briginshaw rejected an argument that the criminal standard applied, although in a frequently cited passage, Dixon J said (at 360):

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. Beech Jones J expressed some caution about the applicability of the Briginshaw principle to Tribunal proceedings (particularly given that the rules of evidence do not apply (s 38(2) of the CAT Act): see BKE at [29]. His Honour then explained the relevance of the reasoning of the High Court in M v M at [33]:

... [T]he reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.

1. His Honour then pointed out that there is no right to an internal appeal from a Tribunal decision in a case involving a WWCC Clearance decision: instead only an appeal on a question of law (or judicial review) is available to the Supreme Court: BKE at [44].
2. Another significant point made by Beech Jones J in BKE is that the WWC Act "does not allow for a calibrated assessment of the current risk" posed by a person seeking a WWCC Clearance from which it follows that there is no scope for "putting in place measures to mitigate any risk" that might be posed: see BKE at [4] and see also [27]. That is, a WWCC Clearance is either granted or refused: there is no scope for any limits or conditions on a WWCC Clearance.
3. The approach to risk outlined by Beech Jones J in BKE at [33] was referred to expressly by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 at [34] per Basten JA. It was also endorsed by the Court of Appeal in CXZ v Children's Guardian [2020] NSWCA 338 where Simpson AJA (with whom McCallum JA agreed) said:

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. 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.

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.

1. It has also been observed by the Court of Appeal that, in the context of the WWC Act, "the exercise with which the Tribunal [is] concerned [is] protective not punitive": Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] per Young JA.
2. It is against that background that this application falls to be considered.

1. Section 9(1) of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision if enabling legislation provides that applications may be made to the Tribunal for an administrative review. By s 9(2), "If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied".
2. Section 63 of the ADR Act relevantly provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

1. And by s 28(1) of the CAT Act, "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". In relation to administrative review jurisdiction, s 30(1) of the CAT Act refers in turn to s 9 of the ADR Act, which refers to jurisdiction conferred on the Tribunal by enabling legislation.
2. The relevant enabling legislation for the purpose of s 9 of the ADR Act is s 27(1) of the WWC Act, referred to above, which provides that a person who has been refused a WWCC Clearance may apply to the Tribunal for review. While the primary decision is the decision under review, the Tribunal's role is, as set out in s 63 of the ADR Act, to determine what is the correct and preferable decision having regard to the material before it. It follows that the Tribunal is not limited to reviewing the correctness of the primary decision, as it might be were it conducting a judicial review process. That role is often described as the Tribunal standing in the shoes of the decision maker. In order to undertake its function of determining what is the correct and preferable decision, the Tribunal is not limited to considering only material that was before the original decision maker but may consider any relevant material, including material that postdates the decision under review: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]- [38], [45]-[46], [99], [143]; Bilanenko v Commissioner of Police [2022] NSWCATAD 76 at [10]. The Tribunal can exercise all of the functions of the person who made the decision. In determining an application for review, it can affirm the decision; vary the decision; set the decision aside and substitute for it a different decision, or set the decision aside and remit it to the decision maker for reconsideration in accordance with any directions or recommendations of the Tribunal.
3. By s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), 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.
4. The WWC Act does not expressly provide for either party to carry an onus in an application for administrative review under Part 4 of the Act and it has been determined that neither party bears an onus of proof in relation to an application under s 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32] (referred to by the Court of Appeal in Tilley at [23]; and see [2017] NSWSC 1228 at [89] (per Button J).

1. The respondent relied on the following matters in making the original decision to refuse to grant the applicant a WWCC Clearance:

(1) A conviction in 2010 for the offences of "Dangerous Driving Occasioning Death" and "Dangerous Driving Occasioning Grievous Bodily Harm" following an incident in 2008 in which the applicant's driving caused the death of a young adult and a 17 year old sustained "serious brain injury".

(2) The respondent considered it "reasonably likely" that the applicant has engaged in domestic violence behaviours towards his ex partner, including in the presence of his child. There was no conviction but a final Apprehended Domestic Violence Order (ADVO) was imposed for a period of 21 months;

(3) The respondent referred to police records that suggested that the applicant's "drug and alcohol use appear to have been a factor".

(4) The applicant was terminated from his child-related role at Lifestyle Solutions in 2023 due to workplace misconduct involving breach of information security.

(5) The respondent noted that these matters spanned a period of some 15 years: 2008-2023 from which it stated that he had not yet acquired any learnings, insight or perspective from his past conduct which increases the likelihood of repetition.

1. As the applicant was not legally represented, the Tribunal asked the respondent to outline its case first. The respondent indicated that while it relied on the same matters as identified in the original decision, in its written submissions, the respondent had noted that the "primary records for the Tribunal's consideration for the purposes of s 30(a) are the domestic violence and data breach incident" and it also acknowledged that the applicant had previously been granted a WWCC Clearance following the car accident. That is, while the charges arising out f the car accident were a matter raised by the respondent, that incident had not earlier been treated as an impediment to the granting of a WWCC Clearance.
2. Nonetheless, in opening, the respondent stated that it relied in summary on four matters:

(1) The incident involving the improper disposal of records that led to the applicant's employment being terminated in 2023;

(2) An instance of domestic violence that occurred on 11 November 2020 and which resulted in criminal charges being laid; the imposition of an ADVO; and reports to the Department of Communities and Justice (DCJ) help line that a child was at risk of significant harm: (ROSH reports).

(3) An incident in September 2021 that led to the applicant being charged with contravening the ADVO and with common assault; and

(4) The incident involving a fatal car accident in 2008 which led to the applicant pleading guilty and being sentenced for the offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The respondent referred in particular to a contemporaneous medical report (prepared for the court proceedings) that described the applicant as suffering a "very severe" brain injury. While the respondent accepted that the applicant had previously been granted a WWCC Clearance, and did not rely on this occurrence to the same extent as the other matters, the respondent contended that it demonstrated a nexus between the alcohol-related offending in 2008, and the more recent instances of domestic violence that appeared to be alcohol related.

1. The applicant responded briefly before giving oral evidence and being cross examined by the respondent. He explained that while he is separated from his partner, who is the mother of their now five year old child, they continue to live separately and apart under the one roof, in the house they jointly own. He referred to and relied on a statement by her in which she indicated that she does not hold fears for her safety.
2. The applicant was asked a number of questions about the various incidents relied on by the respondent.
3. Conviction in 2010 relating to the 2008 car accident: In relation to the reference to a brain injury referred to in a 2009 report, he noted that this report was provided to the court in the context of sentencing him for the offences for which he was charged arising out of the car accident in 2008. He acknowledged that he had consumed the amount of alcohol found to be in his bloodstream after the accident. However, he stated that he was not a big drinker at that time: the problem drinking came later. He explained that he had been sentenced to and served a sentence of periodic detention in relation to convictions that flowed from the driving incident.
4. The incident on 11 November 2020: The applicant was questioned extensively by the respondent about the incident that occurred on 11 November 2020. According to the police fact sheet, the applicant's partner/former partner, who was at that time staying with her mother, had attended at their formerly shared residence to pick up some of her belongings. An altercation ensued and the police attended. Some of what occurred was recorded by the partner on her phone; and there was also some contemporaneous video footage from police bodyworn cameras.
5. The applicant denied pushing his partner to the ground but agreed that there had been some form of physical altercation between them. The applicant claimed that his former partner had scratched him. According to the police reports and fact sheet, she had broken a false fingernail which resulted in bleeding. It appears that this occurred as the applicant was seeking to grab her phone (to stop her videorecording).
6. The applicant stated that there were two separate things going on: first is the situation that the partner described (and that the police at least partly recorded). The second was when he came to realise that their then seven month old child had been left in the car alone. He stated that the latter is an important part of the context that has been omitted as he states that he was upset when he discovered that his ex partner had brought the child and left the child alone and unsupervised in the car. He stated that he became angry with his partner when she refused to get the child out of the car. He did not deny making some of the statements attributed to him, and accepted that he should not have said the things he said. However, he added that while he should not have spoken in that manner, the context was missing. For example, he agrees he said "you need to f---ing go or I will hurt you" but says the context was his concern about the need to get the child out of the car.
7. The applicant did not agree that he was a perpetrator of domestic violence. Nor did he agree that he acted in a manner that was controlled by alcohol. He emphatically denied that he had perpetrated domestic violence in front of his child: he reiterated that his focus completely shifted when he became aware that his partner had left the child in the car: he stated that his only concern was to get the child out of the car. While he was angry that the child had been left in the car, he was confident that the child would have been unable to hear the altercation that was taking place and denied that his behaviour on that occasion had negatively affected his child.
8. The applicant accepted that a final ADVO was made by the Local Court on 22 January 2021 (an interim order had been made after he was arrested and charged in November 2020) and the final order was for a period of 21 months. He also accepted that he had behaved in a manner that was not appropriate and had been verbally abusive.
9. The charges arising out of the November 2020 incident were dismissed by the court as the prosecution was not able to rely on the evidence of the alleged victim (the applicant's partner).
10. The September 2021 incident: The next incident on which the respondent relied involved the applicant being arrested and charged on 15 September 2021 for a breach of the ADVO that was imposed as a result of the November 2020 incident. The ADVO included a condition that the applicant was not to be in the company of the protected person (his (ex) partner) within 12 hours of drinking alcohol or taking illicit drugs. According to the police facts, police attended after receiving a call but the victim (the applicant's partner) was not prepared to provide details of what occurred. She had apparently made a 000 call though later told police that this was a pocket dial. However, she had contacted friends who attended the premises (and who presumably called the police). A neighbour who heard her calling "help" had also called the police, telling them that they saw the applicant dragging the victim by her hair along the front verandah.
11. The applicant had left the house but was found by a police officer and a police dog nearby, intoxicated. He denied that he had consumed alcohol in breach of the ADVO. He agreed that he was intoxicated when arrested but insisted that he had only started drinking after he had left the house following the altercation. He contended that he had drunk a considerable amount of wine and some brandy while sitting outside after the incident, but before he was arrested. The police facts state that when arrested he was "moderately affected with intoxicating liquor" and was not interviewed "due to his intoxication". He is also reported to have said "don't tell them shit Tabby" (addressing his former partner).
12. Under cross examination, the applicant denied having breached the ADVO. He was adamant that he had not been drinking until he had left the home. He stated that he was very conscious of the terms of the ADVO and was also concerned about losing his job so would not have breached it for that reason. He also did not agree that he assaulted his partner.
13. The applicant was asked about his alcohol use and while he denied characterising himself as an alcoholic, he agreed that he had at one time drunk very heavily on a daily basis over a sustained period, though he disagreed that that period extended over years. He told the Tribunal that he had experienced a period of binge drinking though denied he had an alcohol addiction. In 2021 he was prescribed naltrexone by a drug and alcohol counsellor. He does not now take naltrexone and told the tribunal that he has not seen a doctor about his alcohol use. While he still drinks alcohol, he stated that he does not do so every day. However in the course of his evidence it became apparent that he still drinks frequently and in significant amounts.
14. He denied that alcohol had had a role in both the 2020 and 2021 incidents and maintained his position that he had only consumed alcohol on the day of the September 2021 incident after he left the house.
15. The second set of charges, arising from the September 2021 incident, were also dismissed by the Local Court on the ground that the prosecution was relying on the evidence from his partner and she did not attend at the hearing of the applicant's charges. Those charges were withdrawn by the prosecutor on 15 December 2022 when it became apparent that the partner/alleged victim was not going to give evidence. By that stage the ADVO imposed after the November 2020 incident had also expired.
16. The applicant was also asked a number of questions about drug use (there was evidence of an ice pipe being found in the house when police attended in November 2020). The applicant denied it was his. However he conceded that he had at one time used methamphetamine but stated that he did not do so anymore. He had also used marijuana in the past and admitted that he found it harder to stop using marijuana than he had anticipated it would be.
17. The workplace incident: 2023. The applicant was terminated from his employment with Lifestyle Solutions after a workplace investigation found him guilty of workplace misconduct after he had been found to have breached a number of workplace policies. This flowed from the discovery of a number of personal files from the organisation where the applicant had been employed variously as a youth worker and a therapeutic specialist with young people in residential care. According to the person who reported the incident to Lifestyle Solutions (a former neighbour of the applicant), files were strewn on the ground and in the bin. This occurred at the time the applicant was moving house/moving out of that apartment.
18. The applicant adamantly denied disposing inappropriately of work files. He did however concede that he had been negligent in handling the files as he had left them in his car in a shopping bag when he was in the process of moving house. While he acknowledged that the organisation's policy was that files should not be removed from the office, he stated that it was common practice for employees to work at home and that often involved having files with them. He explained that he had had a dispute with the neighbour who reported that he had found them and had returned them to the applicant's employer, together with photos of them being strewn on the ground and in a garbage bin. The applicant was adamant that he had not, and would not have, disposed of them in that manner but as noted already, accepted responsibility for his carelessness/negligence in leaving them in an unlocked car. He expressed relief that they had been safely returned as a result of which none of the young people named in the files had in fact been harmed by that conduct, though he also conceded that the conduct in question had the potential to cause real harm to the people whose files were found by the neighbour.

1. The applicant has a Bachelor of social science from the University of Newcastle and is undertaking a diploma of counselling which he has nearly completed. He explained that the purpose of undertaking that course was to move into case management. After graduating with his degree, he has worked as a youth worker with another support provider, working particularly with young people in residential care and foster care. He has also worked as a behaviour support consultant and as a therapeutic specialist assisting the transition of young people into residential care. The applicant was animated when talking about his work with children and appeared genuinely committed to the work he had done working with children at risk.
2. He provided a number of references and relied in particular on one from a colleague, a national advanced practitioner in Child and Family. She wrote very positively of his work in the field describing his work performance and conduct as exemplary and spoke of him as highly regarded by his colleagues.
3. Since he was terminated from his employment he has had various jobs. These include working with his brother who is a builder. He is currently engaged casually reading meters for a utility company. He is experiencing financial stress as he finds it difficult to keep up with the mortgage on his house on what he earns from that casual employment.
4. The applicant expressed some reservations about returning to working with young people who are vulnerable with complex needs as he is not sure that he has the capacity to do that work at present. He is considering moving into working with adults in forensic behavioural science and has commenced a masters' programme at Swinburne University which he is undertaking remotely.
5. The applicant owns the house he lives in, though it has a large mortgage. It was renovated with a view to creating a separate area that could be rented out and generate income but the separate area is currently being used so that he and his partner can continue to live separately but apart under the one roof. That way they can share looking after their child who is now aged five and has started school. The applicant told the tribunal that he finds the situation of living in the same house as his ex-partner stressful but thinks it is positive that they have been able to make it work as it provides a more stable environment for their child.
6. During the hearing, the applicant acknowledged that it might be of assistance for him to seek some psychological counselling, something he had not done or at least not consistently. He told the Tribunal that shortly before the hearing he had discussed with his mother the idea of him seeking out psychological support.
7. The applicant became most animated, showing great delight and considerable pride, when talking about his five year old child. In the applicant's words, the child is "doing really well ... and is the best kid in the world". The applicant particularly drew attention to the child being very empathetic.
8. As noted above, at the time of the incidents that resulted in the police attending (2020 and 2021), reports were made to the DCJ helpline. The applicant provided the Tribunal with the file he obtained (the 'ChildStory' file) after making an application under the GIPA Act. Those records paint a very positive picture of the applicant as a parent and express no concerns about the child's safety or development. Those reports include interviews with his former child care provider and are overwhelmingly positive. While they refer to the fact that there have been police called to incidents, and charges have been laid, on interview of the former partner, they report that she has been adamant that she does not fear for her safety and is not a victim of violence from the applicant.

1. The issue in this case is whether the correct and preferable decision is to refuse to grant the applicant a WWCC Clearance.

1. When undertaking a review under Part 4 of the WWC Act, the Tribunal is required to consider the matters set out in s 30(1)(a) of the Act. These are mandatory relevant considerations in the sense described by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; [1986] HCA 40 at 39-42 (Peko Wallsend). However, while they must be taken into account, the weight to be attributed to them is a matter for the Tribunal (see Peko Wallsend at 42) which, for the purpose of conducting the review, can exercise all the powers of the primary decision maker.
2. The Tribunal notes that the factors set out in s 30 include reference to "offences" in the context of a person becoming a disqualified person, or "matters". The s 30 factors are required to be considered whether the Tribunal is undertaking a review under s 27 (where the Tribunal is reviewing a clearance decision) or pursuant to s 28 (where a person who is a "disqualified person" is seeking an enabling order, that is, an order that permits them not to be treated as being disqualified from working with children). And as noted above, the Act defines "criminal history" in s 5C as including charges that are either withdrawn or in relation to which a person has been found not guilty. That is the context in which the Tribunal now considers the matters in s 30 and s 30(1A)
3. Addressing the matters in turn:

(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,

1. As noted, the only conviction the applicant has is the 2010 conviction for the driving offences arising out of the car accident in 2008. While those matters were very serious, and the applicant served a sentence (periodic detention) in relation to them, they were not considered an impediment to the applicant initially obtaining a WWCC Clearance. At the hearing, the respondent sought to rely on material arising from that incident in two ways: first, to suggest that the applicant was suffering from severe brain injury; and second, to draw a nexus between the role of alcohol in that incident and the role of alcohol in the more recent matters it relies on.
2. The Tribunal does not consider that the convictions arising from the 2008 car accident ought to be given significant weight, not least because the respondent was content to grant the applicant a WWCC Clearance in the past, despite being fully aware of this incident. In relation to the alleged brain injury, there is no evidence that postdates the report the respondent referred to which is from 2009. The Tribunal accepts the applicant's evidence that it was prepared for the purposes of sentencing and there is nothing else in evidence that would demonstrate that the injuries the applicant suffered in the car accident in 2008 give rise to any risk to children.
3. As for the impact of alcohol on the applicant's conduct, the applicant agreed that he continues to use alcohol, though submitted his use was not as extensive as it had been in the past (though he expressly denied being a heavy drinker in 2008). The Tribunal considered the connection between the 2008 incident and the more recent matters on which the respondent relied to be somewhat tenuous.
4. In relation to the November 2020 and the September 2021 incidents that led to charges being laid, neither resulted in a conviction. The respondent adduced evidence by way of transcript that demonstrated that the reason the matters did not proceed in court was that on each occasion, the applicant's ex partner was unwilling to give evidence.
5. The Tribunal does not consider there to be evidence that the reason the victim refused to give evidence was fear of the applicant: rather, the refusal to give evidence appears to be consistent with her statements, including as recorded in the Child Story record, that she does not fear the applicant. Nonetheless, the applicant accepted that his behaviour towards her was unacceptable and that he had spoken to her in a manner that was inappropriate. He acknowledged that this had led to the imposition of an ADVO, and that the ADVO appeared to focus on the role of alcohol in his behaviour as one of the conditions of the ADVO was that he not approach the victim within 12 hours of consuming alcohol.
6. While those incidents were extremely disturbing, the only reported injury recorded by police was that the victim had a broken artificial nail, which led to bleeding of her finger. It appears to be accepted that this occurred when the applicant grabbed her phone. In the second of the incidents, it is alleged that the applicant pulled the victim by the hair.
7. The Tribunal does not discount the seriousness of these incidents, but after hearing from the applicant and noting that there had been no reported such incident since 2021, the Tribunal is not prepared to find that the applicant is a "violent" offender, as he appears to have been characterised by the respondent. Nor does the Tribunal accept that the incident in November 2020 was an incident of domestic violence perpetrated in front of the child. It is extremely regrettable that the child was left in the car, but the Tribunal accepted that one of the reasons the applicant was angry was precisely because the child was in the car and he was concerned that the child had been left there by the partner (a matter also commented on in the Child Story files).
8. Finally, the Tribunal also finds serious the incident involving the files from his office which involved conduct that was reckless and negligent and had the clear potential to put the young people the subject of those files at risk.

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

1. The Tribunal refers to what is said in relation to s 30(1)(a) above with respect to the 2008 driving incident. There is no reported repetition of any such conduct. In relation to the 2020 and 2021 incidents, the Tribunal also notes that there are no reports of any repetition and the applicant himself explained that, while he still experiences difficulty in his relationship with the victim, things have been somewhat calmer since she has had some medical treatment. He told the Tribunal that "things are different now" and he does not consider that conduct of that nature will reoccur.
2. The events leading to the finding of workplace misconduct and the applicant's termination from his employment are more recent (2023). The applicant denied strewing the relevant file records around or putting them in a garbage bin. He claims they were left in the car, which was unlocked, while he was in the process of moving house and someone else (a disgruntled neighbour) removed them and then photographed them. There is evidence that the records were returned to the employer by that neighbour with a note and photographs. The Tribunal does not find it necessary to determine how the material found its way onto the ground or in the bin. This is because, even on the applicant's own case (that he left the records in a shopping bag in an unlocked car), he was clearly negligent and also acted in breach of the employer's policies relating to privacy and confidentiality.

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

1. The applicant was aged 20 at the time of the 2008 car accident. He was an adult in his thirties at the time of the 2020, 2021 and 2023 incidents.

(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

1. A young adult was killed in the car accident, and a child suffered permanent injury. As for the 2020 and 2021 incidents, the applicant's partner was an adult. While the respondent contended that the November 2020 incident occurred in front of the applicant and his partner's then 7 month old child, who was in the car during the 2020 incident, the Tribunal accepted the evidence of the applicant that he was unaware that the child was there and in any event, the child was unlikely to have been able to hear what was going on.

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

1. The Tribunal does not consider this factor relevant to this matter

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

1. The Tribunal does not consider this factor relevant to this matter

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

1. As noted above, the applicant's only conviction is in relation to the 2008 car accident. However, the applicant's criminal history includes the November 2020 and September 2021 incidents, as they resulted in charges being laid (cf WWC Act, s 5C). There is no evidence of any repetition of that conduct, nearly five years since those events.
2. The Tribunal considers that while the risk of repetition of those incidents, and of the workplace incident, is not a risk of great magnitude, there is always a chance of recurrence, particularly if alcohol is a factor. In this regard, the Tribunal accepts the submission of the respondent that there is limited evidence before the Tribunal that the applicant has successfully been able to manage his alcohol use and there remains some uncertainty about his use of drugs. The Tribunal noted that the applicant had expressed a desire to seek out psychological counselling and appeared to accept (though that was less direct) that addressing his alcohol use was also something that would benefit him. .

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

1. In relation to the impact on children of any repetition of the conduct, the evidence before the Tribunal in relation to the applicant as a parent is overwhelmingly positive (see in particular the material produced to him under the GIPA Act). The applicant also explained that things are more stable with his ex partner now that she is taking medication. However, adopting the cautious approach mandated by the High Court in M v M, there remains some (albeit not considerable) risk that the applicant's psychological state, which he advised is a matter of concern to him, combined with alcohol use, could potentially give rise to an incident that might impact on a child/children.
2. The applicant expressed remorse about the workplace incident and acknowledged that it could have harmed the children the subject of those records, but he was relieved that in this case it had not done so. The Tribunal accepted that the applicant was genuinely relieved that that did not occur and the damage was contained by the files being returned to his former employer.

(j) 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,

1. The evidence provided by the applicant has been discussed in relation to other relevant matters.

(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 Tribunal considers that all relevant matters have been addressed above.
2. There is a further requirement set out in s 30(1A) as follows:

(**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

1. The Tribunal considers in light of the applicant's work history (about which he spoke with considerable passion), and the evidence of his positive parenting of his own child, the only basis upon which a reasonable person would hesitate to permit the applicant to have unsupervised contact with their child would be if he was affected by alcohol or drugs, or there was perceived to be a risk that he may be so affected when with the child(ren). The Tribunal notes that while he provided positive references (and the Tribunal referred above to the positive reference of his colleague in particular), there was no reference in those to his alcohol use, nor evidence that he has addressed that issue. The Tribunal maintains a concern that he continues to drink at levels that are excessive despite earlier attempts at intervention such as the use of naltrexone. The Tribunal considers that before it could be relevantly satisfied under s 30(1A)(a), there would need to be some independent evidence that the applicant had sought some professional assistance in relation to his alcohol use.

(b) it is in the public interest to make the order.

1. In the context of the consideration of s 30(1A)(b), the Tribunal in CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 said at [75]:

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

1. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act at [24]-[26]:.

[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

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.

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'.

[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

1. The Tribunal, in applying the public interest test, must do so by reference to the particular statutory framework and thus have regard to the subject matter, scope, and purpose of the Act. In particular it is necessary to consider the object (s 3), which is to protect children, and the paramount consideration (s 4) which is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse". That requires a consideration that errs on the side of caution.
2. While the Tribunal considered that there were many positive aspects of the applicant's case, in light of the object and the paramount consideration and the approach mandated by the courts as to the caution that must be exercised, even if a positive finding about conduct or wrongdoing cannot be made, the Tribunal is of the view that it would not be in the public interest to grant the applicant a WWCC Clearance until such time as the applicant provided some independent evidence of efforts to address his alcohol use and satisfied the Tribunal in some objective manner that he no longer uses drugs, as he maintains is the case.

1. Based on the evidence set out above, and by reference to the discussion of the matters in s 30 and s 30(1A) of the WWC Act, the Tribunal makes the following findings.
2. While the applicant's conduct in the November 2020 and September 2021 events was sufficiently serious to give rise to criminal charges, that conduct, on a continuum of instances of violence, was more verbally abusive than physically violent. The Tribunal notes that the applicant has acknowledged the gravity of the conduct, referring to it in terms that included "disgraceful". The Court found it to constitute intimidation and imposed an ADVO. Nevertheless, the Tribunal does not agree with the characterisation by the respondent of the applicant as a persistent perpetrator of domestic violence and equally does not accept that he is someone who has perpetrated domestic violence in front of his child.
3. By the same token, the Tribunal accepts that the applicant has been verbally aggressive and abusive to his ex-partner, resulting in the imposition of an ADVO with a specific provision about alcohol use, and considers that that conduct is likely to have been alcohol related.
4. The Tribunal also finds that there is an evidentiary basis for considering that the applicant may have breached the ADVO in September 2021, though is not in a position to make a conclusive finding about that.
5. The Tribunal accepts that at a minimum, the applicant was grossly negligent/reckless in his treatment of confidential files of vulnerable young people and in that context, breached workplace policies about privacy and confidentiality and the removal of files from the office. That conduct could have, but fortuitously did not, cause considerable harm to the young people involved, something the applicant acknowledged.
6. The Tribunal finds that the applicant has for some years consumed alcohol excessively. The applicant agreed that he had been a heavy drinker (using the term "binge drinking") and while he denied that was still the case, he acknowledged that he would drink alcohol regularly. He had previously sought treatment for that in the form of naltrexone and the Tribunal considered that given the current uncertainty about the quantum of his drinking and the effect of alcohol on his behaviour, if he were to seek to regain a WWCC Clearance it would be helpful to have some independent evidence that he had addressed his alcohol use.
7. The Tribunal considered there to be a number of positive factors about the applicant including the DCJ reports of his parenting, but in the context of the approach that has been adopted by the courts in cases arising under this legislation, must err on the side of caution given the continuing uncertainty about the applicant's alcohol use and its effects on his behaviour. Should the applicant seek to make a further application for a WWCC clearance, he would be assisted by having some evidence from one or more health practitioners to put before the respondent demonstrating that he has addressed that issue.

1. After consideration of the material before the Tribunal, and having considered the matters set out in s 30(1) and s 30(1A) of the WWC Act, the Tribunal, in reliance on the approach set out in M v M and erring on the side of caution, considers that it cannot exclude the possibility that the applicant poses a risk to the safety of children, based on the uncertainty about the current state of his alcohol use and its role in the behaviours the respondent has relied on. The Tribunal also considers that it would not be in the public interest to issue him a licence at this time.

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.