GTL v Office of the Children's Guardian [2025] NSWCATAD 297;

1. The Applicant provided the application for administrative review attaching the decision of the Respondent, their submissions, and a bundle of documents that included references, certificates, ADVO orders (since expired), photographs, and a psychologist's report.
2. The Respondent submitted a number of bundles of documents which included their submissions, police interview transcripts, and court documents. The Respondent also provided a bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act), as well as written submissions to the Applicant and the Tribunal.
3. The Applicant gave oral evidence and was cross examined at the hearing held on 13 November 2025. Both parties made oral submissions at the hearing.

1. The Tribunal has jurisdiction to review a decision pursuant to s 30 of the CAT Act and sections 6, 7 and 9 of the ADR Act.
2. The Tribunal notes that the Act was amended as at 23 September 2025 upon the enactment of the Child Protection (Working with Children) and Other Legislation Amendment Act 2025. However, applications for review of decisions, which were submitted prior to those amendments taking effect, continue to fall within this Tribunal's jurisdiction for determination, as per s 27 of Schedule 3 Part 6 of the (post-23 September 2025) Act.
3. All references in this decision hereafter and otherwise to the Act, will therefore refer to the version of the Act in place prior to 23 September 2025.
4. Section 27(2) of the Act provides that applications may be made to the Tribunal for administrative review of a decision to cancel a WWCC.
5. The Application was made within 28 days of the Decision, in accordance with s 27(3)(b) and the Tribunal is satisfied it currently has jurisdiction to hear and determine the Applicant's application.
6. As per s 63(3) of the ADR Act, the Tribunal may make orders including to affirm or vary the decision of the Respondent to cancel the WWCC, or to set it aside and either make a decision in substitution, or remit the matter to the Respondent for reconsideration.

1. As per s 63 of the ADR Act, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Respondent: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
2. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature as per BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110].
3. As per Commission for Children and Young People v FZ [2011] NSWCA 111, at [63] citing Roberts v Balencio (1987) 8 NSWLR 436, the Tribunal has a "discretion to act on material which is rationally probative, but ...must determine in all the circumstances whether it is proper to act on such material and must act fairly towards the parties."
4. The objects of the Act are to protect children, as per s 3(a) by not permitting certain persons to engage in child-related work, and s 3(b) by requiring persons engaged in child-related work to have Working with Children Check clearances.
5. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse."
6. Section 8(1) of the Act prohibits a person from engaging in "child-related work" unless they hold the relevant WWCC clearance or there is a current application for a WWCC on foot.
7. Section 18 of the Act sets out how the Respondent is to determine an application for a WWCC clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or where that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a "disqualified person" and the Respondent must refuse that person's application for a clearance.
8. In this case, the Applicant does not meet the definition of a "disqualified person" and the subsection does not apply to him.
9. Subsections 18(2) and (3) of the Act apply to all other applications. These subsections provide that per s 18(2), the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children; and per s 18(3), the Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
10. In making a risk assessment, the Respondent may consider the following factors set out in section 15(4) of the Act:

(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 total criminal record 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,

(j) any information given in, or in relation to, the application,

(k) any other matters that the Children's Guardian considers necessary.

1. The Applicant has a duty to disclose all relevant material pursuant to s 27(4) of the Act.
2. Section 30(1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. These essentially replicate the factors set out in s 15(4) of the Act to which the Respondent may have regard, when conducting their risk assessment, and are as follows:

(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 total criminal record and the conduct of the person since the offences occurred;

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

(j) any information given by the Applicant in, or in relation to, the application;

(k) any other matters that the Children's Guardian considers necessary.

1. Section 30(1A) further provides that the Tribunal may not make an order which has the effect of enabling a person (the affected person) to work with children in accordance with the 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. The Applicant has held a WWCC since September 2017, and is trained as a Dental Assistant and Oral Health Therapist, and co-owns a dental practice, which routinely treats people under the age of 18 years.
2. On 13 August 2023, the Applicant's wife contacted the police to report an incident, which resulted in the Applicant being charged with domestic violence offences in the form of one count of intentionally choking a person without consent pursuant to s 37(1A) of the Crimes Act 1900, and three counts of common assault pursuant to s 61 of the Crimes Act 1900.
3. The essence of the charges were the allegations that the Applicant had (i) touched his wife's face or neck, during an argument, without consent, and (ii) that he had shaken one of his 18 month old twin daughters in response to his frustration that she would not stop crying. The Applicant contended throughout that he had only touched his wife's chin to turn her face towards him, and had at no time touched her neck, inflicted damage or choked her. He further contended that he had given his daughter one or two 'jolts' but had not shaken her per se.
4. On 15 August 2023, the Respondent placed an interim bar on the Applicant's WWCC and subsequently cancelled the Applicant's WWCC on 21 November 2024.
5. The Applicant was tried in the Local Court on 23 October 2024, and found guilty of two counts of common assault. The Applicant appealed this decision, which was subsequently overturned by the District Court on 22 May 2025. The District Court found, per the Applicant's submissions, that (i) the prosecution had failed to prove essential elements of the offences (ii) the complainant's evidence was unreliable (iii) the alleged conduct fell within the bounds of normal parental or spousal contact; and (iv) there was no intent to harm, hostility or criminal culpability.
6. Despite the District Court quashing all convictions, and the Applicant now having a clear criminal history, the Respondent has elected to press the matter.

1. The Applicant submits the correct and preferable decision is to set aside the Respondent's decision and grant the Applicant a WWCC. His grounds for this review include the following:

(a) That he has been cleared of all charges and his convictions were quashed by the District Court;

(b) That he has attended courses in "Identify and report children and young people at risk", and " Understanding Domestic and Family Violence", together with several hours of online continuing professional development in this area.

(c) That he has undertaken therapy with an accredited psychologist, who has concluded that he presents a low risk of re-offending;

(d) That the historical ADVO has expired and he has happily reconciled with his family, and provides a "nurturing, stable and positive home environment" as per his wife's letter, submitted to the Tribunal on 10 November 2025;

(e) That he has provided references from community members and professional colleagues, as well as family members, who all attest to his integrity and non-violent nature.

(f) That he has complied with all attendant requirements throughout, without complaint or breach, and has demonstrated genuine rehabilitation.

(g) That the Respondent's refusal to reinstate the Applicant's WWCC in light of the above, is disproportionately punitive and inconsistent with the objects of the Act.

1. At the hearing, the Applicant submitted that the Respondent has relied entirely on the previous charges and convictions, to support their continued refusal to grant the Applicant a WWCC, despite the fact that his convictions were quashed, and he does not have a criminal record.
2. The Applicant has been seeing a psychologist regularly, who diagnosed him with an Adjustment Disorder. The psychologist noted in their initial report that the Applicant is "not a mentally ill person" but his "mental condition was a contributing factor towards his alleged offence as he was feeling emotionally distressed". She further wrote that the remorse, shame and regret he is experiencing is genuine, in her opinion, and that he was willing to comply with a treatment plan to reduce his risk of reoffending. He is continuing to see the psychologist currently, and has complied with his treatment plan.
3. The Applicant's colleagues have attested to his patience and calm manner when dealing with children in the dental practice, and his referees speak to his charity work, and "calm and collected demeanour" and his devotion to, and great love, for his family.

1. The Respondents submitted that they made the correct and preferable decision in the circumstances, and that their decision to refuse a WWCC for the Applicant should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

(a) That the Applicant poses a safety risk to children because he has a recent history of shaking and squeezing his very young children out of frustration, and grabbing his partner's chin and self-harming in the presence of his children.

(b) That the protection of children from child abuse, as per s 4 of the Act, is paramount, and includes "the exposure to harm caused by or being subjected to family violence" as established in BFX v Children's Guardian [2014] NSWCATAD 115 at [29].

(c) That 'risk to the safety of children' is a 'real and appreciable risk' as per s 5B of the Act, and is not limited in scope to a risk which would arise only in particular child-related work ie the test is simply whether the Applicant poses any risk to children, irrespective of context.

(d) That in a context where the welfare of a child is paramount, the Tribunal should take the charges and conduct of the Applicant into account when assessing the risk he presents, regardless of whether any allegation of misconduct has been proven beyond reasonable doubt.

(e) That if the Tribunal does not find that the Applicant poses a risk to the safety of children, they must then consider the supplementary tests in s 30(1A) of the Act before granting the Applicant a WWCC clearance.

1. The Respondent submitted that the Applicant's conduct was very serious as per s 30(1)(a) and (b) of the Act, and that the Applicant's conduct of over 2 years ago, should be considered recent.
2. The Respondent further submitted that there is a high likelihood of the Applicant engaging in similar misconduct when placed in a stressful situation with a young child, as per s (30)(1)(i) of the Act. The Respondent submitted that a reasonable person with knowledge of the Applicant's recent history, would be concerned that the Applicant may engage in similar 'risky physical retribution' towards their child, if the child behaved so as to frustrate the Applicant.
3. The Respondent further submits that the Applicant has provided insufficient information regarding his life since August 2023 nor any evidence to support a finding that he is less likely in future to engage in similar behaviour.

1. The Tribunal has to consider all of the evidence adduced by the parties in light of, and pursuant to, the mandated considerations contained in s 30 of the Act.
2. An application pursuant to s 27 of the Act is a merits review and not a review in which the Applicant must show that the decision maker was wrong as per Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
3. The issue which must be decided is whether in all the circumstances the Applicant poses a real and appreciable risk to the safety of children.
4. In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at [27], the Court noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."
5. The overarching story of this matter is that it involves a young couple who were under marital stress exacerbated by the management of twin infant daughters, leading to an incident on 13 August 2023, after which the police were called and charges were laid.
6. The Respondent submits that the Tribunal should ignore the District Court's findings on the basis that an overturned conviction does not equate to a finding of innocence. The Respondent submits that the Applicant is nonetheless guilty of sufficiently concerning and serious conduct such that he should be considered a risk to children.
7. Whilst we have made our own assessment of the risk that the Applicant presents to children, we do not accept that the District Court findings should carry no weight.
8. The District Court found the Applicant to be "forthright and honest", and "doing his best just to simply say what he was genuinely thinking". We similarly found the Applicant to be honest, respectful and quietly considered whilst giving evidence under cross-examination during the hearing, and during the original police interview which the Respondent provided.
9. The Respondent sought to characterise the Applicant as having anger-management issues, however, despite the Respondent's efforts in cross-examination, the Applicant presented as calm, quietly spoken and considered throughout. This is consistent with his psychological evaluation and character references.
10. The Applicant has engaged regularly with a psychologist in the interim, who diagnosed him with an Adjustment Disorder, and provided him with a treatment plan, with which he has complied. The Respondent has not challenged this assertion.
11. The Applicant has undertaken multiple relevant courses and accreditations to educate himself, obtain insight into his past conduct and prevent recurrence thereof, and has demonstrated accountability and maturity in his actions since August 2023.
12. There has been no evidence adduced by the Respondent to support a finding that the Applicant either intended to cause harm or actually inflicted any harm, and the District Court's findings in this regard remain unchallenged.
13. Our observations overall were that a domestic situation gave rise to disproportionately serious consequences for the Applicant. The District Court found the complaint against the Applicant to have been somewhat exaggerated, not entirely reliable, and led by the police in a quite forceful manner.
14. The Respondent asserts that shaking an infant can be dangerous, and even fatal, which is a fact. However, the Applicant's contemporaneous and subsequent evidence, is consistently that he did not and would not shake his daughter, that he did not intend to cause her harm, and that he did not, in fact, cause her any harm. He has maintained throughout that he gave her a 'jolt' or two, and may have shouted at her. The Applicant accepts this is not appropriate and has expressed deep regret about such conduct, but it is important to note that this is significantly different from the shaking offence with which he was initially charged.
15. The version of the events given by the Applicant's wife contemporaneously to the police, supports the Applicant's evidence. The Applicant's wife stated that the Applicant spoke normally to their daughter, with only a little elevation in his voice, and that the Applicant's hands were under the arms of their daughter at the time of the brief 'just a little shake'. She then submitted that 'it was more of a movement than a shake', and that the Applicant had been trying to quieten their daughter down, and reassure her. The relevant common assault charge was quashed by the District Court, and we agree with their findings in this regard.
16. The District Court found that the manner in which the Applicant touched his wife's chin, fell within what is acceptable in the ordinary conduct of daily life in the context of their relationship. After reviewing the available evidence, submissions and the Applicant's oral submissions during the hearing, we agree with their assessment of the domestic situation which occurred.
17. Despite the findings of the District Court, which also align with our observations of the Applicant's wife's complaint to the police via the body-worn camera footage provided, the Applicant did not seek to discredit his wife's version of the events during cross-examination. The Respondent viewed this as confirmation that the most serious version of the misconduct had occurred despite the District Court's findings. Conversely, we found that his reticence more likely demonstrated the Applicant's loyalty to his wife, and his determination to put this behind him and keep his family intact.
18. The Applicant fought the charges and his initial convictions through the courts, whilst availing every reasonable avenue of rehabilitation throughout. The District Court found him to be a "person of good character" and our review of the material and submissions provided by both parties, has led us to the same conclusion. This is further supported by the character references provided by the Applicant.

Consideration of the factors in s 30(1) of the Act

1. We have set out below our findings as to the factors in s 30(1) of the Act (other than the factor in s 30(1)(j1) which is inapplicable).
2. With regard to s 30(1)(a), we find that the relevant conduct was potentially quite serious, but not to the extent alleged or prosecuted, and our views align with those of the District Court.
3. With regard to s 30(1)(b) we find that over two years has elapsed since the last occurrence of the relevant conduct, and given the measures undertaken by the Applicant in the intervening period, recurrence appears unlikely, on the balance of probabilities.
4. With regard to s 30(1)(c), the Applicant was aged 30 at the time of the relevant conduct, and is now 32-33 years old. We find that the Applicant has demonstrated growth and maturity in his approach to rehabilitation and accountability in this matter.
5. With regard to s 30(1)(d)-(g), the relevant 'victims' are his wife, of similar age, and his twin daughters, now almost 4 years old. The Applicant has had all convictions quashed, and has undertaken significant rehabilitative measures in the form of psychological treatment, and education. The Applicant and his wife have reconciled, and their home is now a happy and loving one, per their submissions.
6. With regard to s 30(1)(h) and (i), the Applicant has no criminal record as at the date of hearing, and we are satisfied that his conduct since August 2023 supports a finding that a recurrence of his past conduct is extremely unlikely.
7. With regard to s 30(1)(j), we consider the Applicant's rehabilitative measures and character references, as substantially supportive of his application.
8. With regard to s 30(1)(k), we do not consider that any of the matters raised by the Respondent have compellingly demonstrated that the Applicant poses a risk to the safety of children.
9. The Tribunal is satisfied that the Applicant has genuine insight into, and sincere regret about, his past conduct and the attendant consequences, and has learned from his actions. The Applicant has reconciled with his wife and children, has a stable business, and considerable family support.
10. The Tribunal has considered all of the matters in s.30 (1) of the Act, and are satisfied that the available evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the Applicant.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work (s 30(1A)(a)) of the Act?

1. The reasonable person, for the purposes of s 30(1A)(a) of the Act, is a person with knowledge of the matters before the Tribunal, which is to say, a person privy to all the evidence before the Tribunal as per [56] of DAR v Children's Guardian [2018] NSWSC 942. The relevant question, at [57] of that decision, is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant.
2. In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136] stated that "a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal" noting that a "reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material."
3. The Respondent submitted that whilst the circumstances of this matter do not directly relate to the Applicant's dealings with children in the context of his dental practice, he could potentially rely on his WWCC, if granted, in the future as a foster parent.
4. We have considered the matter in the full context of s 30(1A) of the Act and all the circumstances of this matter, and are satisfied that a reasonable person would allow their child to have direct contact with the Applicant that was not directly supervised by another person whilst the Applicant was engaged in any child-related work.
5. A reasonable person would have particular regard to the following matters:

(a) the rehabilitation efforts made by the Applicant, and his willingness to accept accountability and responsibility for his past conduct, and take action to prevent recurrence;

(b) the Applicant's reconciliation with his family;

(c) the absence of recurrence since August 2023;

(d) the Applicant's clear criminal record; and

(e) the confidence demonstrated in the Applicant by his family, referees and psychologist.

Is it in the public interest to make the orders sought by the applicant (s 30(1A)(b) of the Act)?

1. Section 30(1A)(b) provides that the Tribunal cannot make an order with the effect of enabling a person to work with children unless the Tribunal is satisfied it is in the public interest to make such an order. This was considered in CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75] which provided that "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 (ZZ) 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."
2. At [202] in ZZ, Bell J referred to the relevance and importance of rehabilitating offenders, noting at [203] "In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others."
3. Having regard to the matters discussed above, and also considering the Applicant's skills, qualifications and significant employment history in providing dental care services to young people, we are satisfied it is in the public interest to make an order enabling the Applicant to work with children. We therefore find that the public interest test is satisfied.

(1) The decision of the Children's Guardian on 21 November 2024 to refuse the Applicant's Working with Children Check Clearance is set aside.

(2) The Children's Guardian is to grant a Working with Children Check Clearance to the Applicant.

(3) An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, with the exception of expert witnesses and officers of government agencies, the publication or disclosure of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters.

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.