GVN v Children's Guardian
[2025] NSWCATAD 256
•20 October 2025
|
New South Wales |
Case Name: | GVN v Children’s Guardian |
Medium Neutral Citation: | [2025] NSWCATAD 256 |
Hearing Date(s): | 7 July 2025 |
Date of Orders: | 20 October 2025 |
Decision Date: | 20 October 2025 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | J Smith, Senior Member |
Decision: | The Tribunal affirms the decision under review. |
Catchwords: | ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance – risk assessment – real and appreciable risk to the safety of children |
Legislation Cited: | Administrative Decisions Review Act 1997 (NSW) |
Cases Cited: | Commissioner for Children and Young People v FZ [2011] NSWCA 111 |
Texts Cited: | none |
Category: | Principal judgment |
Parties: | GVN (Applicant) |
Representation: | Applicant (Self represented) |
File Number(s): | 2025/00014663 |
Publication Restriction: | The publication of the name of the Applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). |
REASONS FOR DECISION
Tribunal’s Decision
The Applicant seeks a review of a decision made by the Respondent to refuse to grant him a working with children check (WWCC) clearance (“clearance”). Unless he has a clearance, the Applicant cannot work with children. The Tribunal has decided to affirm the Respondent’s decision because the Applicant poses a risk to the safety of children.
Overview
The Applicant has been a well-regarded coach in the relevant sport for 35 years. The Applicant first started coaching a 14-year female child (“the child”) when she was 10 years of age. During that time, the Applicant showed some favouritism to the child, including sending her a sport DVD and a personal note in December 2015. On 6 November 2016, when the child was 14 and the Applicant was 57, the Applicant told the child that he loved her, causing the child to become very upset.
Following this incident, the Applicant resigned as a coach, underwent an independent investigation arranged by the Association of the relevant sport, and was found to have engaged in conduct that amounted to sexual harassment.
During 2022, the Applicant applied for a clearance. On 17 December 2024, the Respondent notified the Applicant that his application for a clearance had been refused. The following risk factors were identified:
(1)The Applicant was subject to sustained findings for sexual harassment towards the child while engaged in child-related work as the child’s coach in the relevant sport.
(2)The Applicant’s behaviour towards the child between 2015 and 2016 was consistent with grooming.
(3)The Applicant had an extensive career in child-related work, where he was subject to child protection training and policies surrounding contact with children. Despite this, he engaged in behaviour that he knew was inappropriate by choosing to prioritise his own needs over the child’s.
(4)The Applicant’s conduct was inconsistent with age-appropriate expectations, as per a child’s state of development. Irrespective of the Applicant’s perception of her maturity, he was aware of her young age, and that his conduct was in breach of policies and had potential criminal repercussions.
(5)The Applicant provided varying versions of events to the Association, the School where he was employed as a teacher, and his submission in response to the notice of the risk assessment, which brings his credibility into question.
(6)The Applicant’s poor mental health at the time was considered a contributing factor to the alleged conduct.
(7)Despite engagement with a general practitioner, psychologist and psychiatrist, there was no evidence that the Applicant received treatment, nor that the treatment was successful in addressing the behaviour of concern.
(8)The Applicant’s responses regarding the alleged conduct lack responsibility, insight and remorse.
(9)The Applicant’s submission reflects a regression in the attitudes he expressed during the investigation and resorts to denial, minimisation, and deflecting blame. The Applicant’s current attitude undermines his assurances of child-safe practices in the future.
On 13 January 2025, the Applicant filed an administrative review application seeking a review of this decision.
Issues
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)Does the Applicant pose a real and appreciable risk to the safety of children? Yes
(3)If not:
(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)?
(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?
Amendment Act
Since these proceedings commenced, the Child Protection (Working with Children) Act 2012 (NSW) (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 enabling 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.
Clause 27(2) of Schedule 3 of the WWC Act states that an application for review 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 13 January 2025. Therefore, the Tribunal retains jurisdiction to determine the Applicant’s application.
The provisions of the WWC Act referred to below are provisions of the WWC Act in force prior to 23 September 2025.
Does the Applicant pose a real and appreciable risk to the safety of children?
Tribunal’s powers
A person who has been refused a clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (WWC Act, s 27(1)).
The Tribunal in reviewing the Respondent’s decision, must grant a clearance to a person who is subject to a risk assessment unless satisfied that the person “poses a risk to the safety of children” (WWC Act, s 18(2)). 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).
In reviewing a decision of the Children’s Guardian to refuse a clearance, 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.
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).
In determining an application for administrative review under the ADR Act, the Tribunal is to decide “what the correct and preferable decision is having regard to the material then before it”, including “any relevant factual material” and “any applicable written or unwritten law” (ADR Act, s 63(1)). That issue is to be determined as at the time of the determination, not as at the time the Respondent made its decision: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].
Legal test for the assessment of risk
The test under the WCC Act is whether there is a “real and appreciable risk” to the safety of children. 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].
Relevant evidence
History of Applicant coaching the child
The Applicant first started coaching the child when she was 10 years of age. Prior to the November 2016 incident, the Applicant had been coaching the child for about five years.
The child was interviewed in August 2017 during an investigation and stated that the Applicant had in the past asked her to do training at his house with a teammate and individually. The child had decided that she would not attend individually. The child’s father was not aware of these training sessions at the Applicant’s home.
During cross-examination, the Applicant stated that the training that he offered to players was part of him “going the extra mile” with coaching. The Applicant denied ever having done a one-on-one session at his house with a player, and that his daughters were involved in the training as demonstrators.
During the child’s investigation interview, she stated that she had noted that the Applicant had paid her more attention over the past two years, and she had thought this was because he thought she was a really good player.
During the Applicant’s investigation interview, the Applicant conceded that the child “was a bit of a favourite player” and that she would talk to him more than the other players and he liked her sense of humour. The Applicant stated that they would share jokes.
December 2015 – note to the child
In December 2015, when aged 13, the child received a Christmas note and sport DVD as a gift from the Applicant. These were mailed directly to the child’s home, addressed to her. At the time, the child’s parents were not aware of this. The note stated the following:
“Dear […]
I felt I just had to write you a little note to say how much I appreciated your kind and genuine words after the […] Grand Final.
You have had a great year and I have enjoyed coaching you sooooo much. I am not quite sure exactly what the nature of the bond is between us, but I know it’s there. I know every time you walk in your lovely smile lights up the whole gym.
I hope you have a special Christmas and I am already looking forward to working with you again in the new year.”
During her investigation interview, the child stated that at the time, she asked others if they had got the same, and they said no.
During cross-examination, the Applicant stated that he has given DVDs for the relevant sport to numerous players he has coached in the past. During the Applicant’s investigation interview, he confirmed that he had not written any other notes with the same content and sentiment when providing DVDs to other minors in 2015 or other years. The Applicant stated that he had sent the note to her as he was not going to see her for another two months and he wanted her to improve her knowledge of the relevant sport.
During his investigation interview, the Applicant stated that the purpose of giving the DVD to the child was to encourage her to aspire to play like a representative for her country and to give her role models to look up to.
During cross-examination, the Applicant stated that he had a “massive rush” of wanting to do this for her. The Applicant conceded that it was “too much emotion” in the note and it was not strictly related to the relevant sport. The Applicant conceded that it was “not a good note”.
November 2016 – Applicant tells the child he is in love with her
On 4 November 2016, the child’s father sent an email to the child, asking that she send the Applicant her email address “so he can send emails to you direct”.
Later that same day, the child sent an email to the Applicant, requesting that she also receive copies of emails that he sent to her mother. The child’s mother was unwell, and it was considered helpful in case her mother missed something. The child’s email stated: “Could I please receive the emails as well in case mum doesn’t read them, hahaha, Thanks”.
At 7:00pm on 5 November 2016, the Applicant sent an email to the child, which stated:
“Talk to me tomorrow and I’ll explain the […] email protocols to you. Also I would [like] to have a chat about another little problem I have as well.”
On 6 November 2016, the child was at a competition, where the Applicant was also present as a spectator. During the investigation interview, the child recalled that she was with a friend and saw the Applicant. The Applicant had asked her “can we talk?”, followed by “I need to talk to you”. The child said “sure”. The child recalled that the Applicant asked her to “come outside”, which she did and stood near the door. The Applicant then said “no, not here” and walked away and sat on a log near some trees, some distance away. The child followed, and sat on the log leaving a space that would allow another person to fit between them. The child recalled feeling uncomfortable.
During the investigation interview, the child recalled the following conversation then taking place:
(1)The Applicant asked: “can this conversation stay between us?” The child responded with “okay”.
(2)The Applicant made some positive comments about her as a player and said that he valued her as a player.
(3)The Applicant said: “this isn’t uncommon – there are heaps of case studies about this, where the relationship between the coach and player gets close – spending so much time together.”
(4)The Applicant said: “I have fallen in love with a player and that player is you”.
The child stated the following during the investigation interview:
“I sat in shock but I was looking away, he was looking at me. I didn’t say anything. Then he said words like ‘so if we are at training cut me some slack if I’m staring at you longer than the other girls’….He said he couldn’t help it or stop the feelings, and that he had been feeling them for a few months, and he felt he had to tell me. Then he said words like ‘I obviously don’t expect you to say the same in return’ – I said nothing. Then he said something like he couldn’t control his emotions and he was in a bad state, and needed to get it off his chest”.
During the investigation interview, the child recalled the following then happening:
(1)The Applicant asked her: “how do you feel right now?”.
(2)The child felt “uncomfortable” and “creepy”.
(3)The Applicant stated: “you are going to keep this between us like you said”.
(4)The child’s phone then rang, and it was her father looking for her. The child stood up and saw her father and ran to him, “crying hysterically”. The child told her father what had happened.
(5)The child was shocked, scared and confused, having never experienced anything like this. The child “didn’t get it” and felt that it was wrong.
(6)The child was about to play a game, but was very upset and could not play. The child was taken home by her father and was upset all the way home.
Events after the November 2016 incident
During his investigation interview, the Applicant’s father stated that he confronted the Applicant after his daughter told him what happened, and observed him to be cowering/drooped over physically. The child’s father told the Applicant that he was never to talk to the child or see her again. The child’s father said that the Applicant said he was “sorry” and said something like “it all went wrong”.
The Applicant prepared and signed a statutory declaration on 3 August 2017 for consideration in the investigation. The Applicant stated the following in relation to the incident on 6 November 2016:
(1)At the venue, he left it up to the child to seek him out if she wished to discuss the matter about receiving emails. The child approached the Applicant in the foyer of the venue, and they had a brief discussion about her desire for the Applicant to communicate directly with her via email regarding her sport team. The Applicant explained to her that he would not be able to do this as it was the policy of the Association for coaches and managers to have no direct electronic communication with minors.
(2)The Applicant then asked her if they could move outside the stadium to continue their discussion as the area in which they were standing was very crowded.
(3)The Applicant asked the child if he were to reveal another reason as to why they should be communicating directly, could she keep that reason confidential, to which she agreed.
(4)The Applicant noted: “there was some selfishness in what I was about to say as I was looking to vent emotions that had been very troubling to me”. The Applicant noted that he believed at the time that it would be okay to be honest with the child “that I was loving her a lot more than I was comfortable with” and that “it was therefore very important that I keep my distance from her”.
(5)As the child had expressed genuine appreciation for his coaching, the child “appeared to me to be more mentally mature than the other players, and I felt I could talk to her as an adult, as an equal”.
(6)The Applicant could see that he had made the child upset and said: “sorry don’t worry, I don’t want anything from you, my feelings are my problem, not your problem and I will deal with them.” The child ran off, very upset. The Applicant realised that he had “totally screwed up” and was “already very much regretting having said anything and realising that I had put my burden onto her. But it was too late.”
(7)The Applicant denied having any sexual intentions. The Applicant also stated that his motivation was never to start a relationship with the child.
During his investigation interview, the Applicant stated that when he did reveal his feelings to the child, he said they were his problem. The Applicant confirmed that he said something like: “if I stare, or my behaviour is a bit off, please understand that I’m struggling”.
In the Applicant’s submission to the Respondent on 22 February 2023, in response to notification of the risk assessment, the Applicant stated the following in relation to another matter he had intended to speak to the child about before she ran away:
“What I never put into the public domain was why it was her who was in my head, because I wasn’t prepared to publicly accuse a 14 year old kid, whose mother was dying from breast cancer, of being what my daughters would have described as “a bit slutty”. You see […] was a very well developed good looking young lady and knew it and played on it. In hindsight I think she actually lacked self confidence and really craved the social approval and attention she received from her “friends” though the following behaviours”.
In his submission to the Respondent, the Applicant then went on to describe photos posted on Instagram, that he had been shown by his daughter, of the child walking around in scant clothing. The Applicant stated:
“So hopefully you can see that there might have been a reason that this kid was in her old coach’s head. My intention was then to suggest that she really shouldn’t post and send semi naked photos of herself all over the place (they were going to over a thousand contacts/followers) because they affect people. i.e. they had affected ME!! However she ran off before I had chance to do this.”
During cross-examination, when the Applicant was asked about whether he would describe the child as “a bit slutty”, the Applicant stated “a little bit”. The Applicant also stated that during the 6 November 2016 incident, he was going to suggest that the child “might like to become less of an exhibitionist”.
During the Applicant’s partner’s investigation interview, she said that she was shocked by what had happened and it was the first time this sort of thing had happened.
On the afternoon of 6 November 2016, the child’s father sent an email to the Applicant stating that he was giving him the option of resigning as coach of the child’s team. The child’s father said that the Applicant was to have no contact with the child or the child’s family and would no longer be able to be within 100m of the child at any time, which included all competitions that the child was involved in. The child’s father said that if the Applicant failed to agree with these “terms”, they would seek an Apprehended Violence Order and make a formal complaint to the Police. The child’s father said that the Applicant was “in need of help” and advised him to seek it.
The Applicant replied to the child’s father on 6 November 2016 via email, stating he was sorry, that he would resign as coach, and he would obey every one of the proposed conditions. The Applicant stated that the child would “never have to worry about me again” and “I give you my absolute guarantee that I will stick to all of your conditions”. The Applicant asked that the child’s father keep the “stupidity of my actions today as confidential as possible” so that the child, and the Applicant’s own children were not exposed to any further emotional trauma.
On the evening of 6 November 2016, the Applicant sent an email to the Association, advising of his immediate resignation from all of the Association’s activities on the grounds of mental health issues. On 7 November 2016, the Applicant sent an email to the families of the players, resigning from all Association coaching activities “effective immediately”. The Applicant said that the reason for this decision was due to the state of his mental health and his need to spend more time seeking help. The Applicant stated that he hopes to come back to the sport eventually. The Applicant made no reference to the incident that had occurred on 6 November 2016.
On 8 November 2016, the Applicant emailed the child’s father a copy of his referral to a psychiatrist that he had obtained on 7 November 2016. In his statutory declaration, the Applicant stated: “I was desperately trying to keep the lines of communication open in the hope of getting an opportunity to apologise in person, and also possibly meet with both of them [the child’s father and the child] face to face, because I believed that I could demonstrate to her how so sorry I was, that it was nothing to do with her. I thought that based on our many years of working positively together, we would be able to work towards a reconciliation and some forgiveness”.
In response to the email of 8 November 2016, the child’s father asked the Applicant not to contact him anymore.
On 24 November 2016, the Applicant emailed the General Manager of the Association and said that he was desperately trying to reconcile/make peace with the child’s family as he believed that this was the best option for the child as well as for himself. The Applicant stated his belief that it was for the better that he could get back to coaching either of his daughter’s teams (who were playing for the Association), that he guaranteed that this would be a safe option and he would “not screw up again”.
On 30 December 2016, the Applicant sent the General Manager of the Association an email attaching a letter from his psychiatrist, stating that he was fit to return to his duties with the Association. The Applicant suggested that a meeting be set up between himself and the child’s father to work out how to best go forward. The Applicant stated in this email that he believed that the child’s father had “totally overreacted and in my opinion misunderstood what I said to his daughter”. The Applicant stated that the child’s father had also “imposed restrictions on my movement around the […] Association that he has no legal entitlement to do so.”
It is undisputed that the Applicant’s conduct towards the child had a significant adverse effect on the child on 6 November 2016. The Applicant recalls the child running off upset. The Applicant’s father gave evidence of his daughter’s distress on the day, including crying and needing to be consoled. The child stated that she was shocked, scared, confused, upset, hurt and unable to continue playing a game. The child also said that it worried her, if the Applicant had been thinking about her like that for months, what could have happened given that he was her coach and she spent so much time with him. The child’s father stated that the child had also lost trust in adults.
February 2017 – Applicant’s attendance at subsequent competitions
In his statutory declaration, the Applicant included an email he had received from the child’s father in response to a request by the Applicant to start attending competitions and coaching again. The email stated “If we saw you from a distance that is ok, we just can’t have you coaching her or involved in her […] again. You can coach other teams if you like but that is up to you”. The Applicant stated that he then asked the child’s father if it was okay for him to attend two competitions (that his daughters were attending) in February 2017.
In response, the child’s father asked that the Applicant not attend the first of the two competitions in February 2017 as he was not able to attend with his daughter, and she would want him near her when she sees the Applicant from afar.
The Applicant stated that the child’s father advised him that it was okay to attend the second competition in February 2017. The Applicant sent an email to all the parents (including the child’s father) before this competition, to let them know that he would be attending to watch his daughters compete.
The Applicant stated that during this competition, which ran over two days, he thought there were no issues with his attendance on the first day. However, halfway through the second game on the second day, the child’s father asked the Applicant to move further away as the child was upset. The Applicant stated that he felt that he may have been the “scapegoat for her poor performance in that game.” The Applicant moved away when asked, watched some more of the game and then left the stadium.
During the investigation interview, the child stated that at the competition in February 2017, she saw the Applicant at the venue and started shaking.
On 22 February 2017, after receiving several complaints from other parents following the Applicant attending the competition, the Association suspended the Applicant from all Association activities.
2017 investigation
As agreed by the Board of the Association on 21 February 2017, the Association engaged an external independent investigator to investigate the following allegations against the Applicant:
(1)That the Applicant engaged in inappropriate conduct towards the child, with whom he had an official coaching relationship and a duty of care.
(2)That the Applicant breached his professional obligations under the relevant Code of Ethics and Code of Conduct and Association policies.
The investigator was also asked to make recommendations about whether the Applicant should coach any junior or senior representative or domestic teams and if so, what conditions should be imposed on such coaching duties.
The Applicant, the child, the child’s father, the Applicant’s partner and the General Manager of the Association were involved in providing information to the investigator.
After completing the investigation in October 2017, the investigator concluded that the Applicant engaged in inappropriate and unprofessional conduct involving the child, breaching the relevant Code of Conduct and Code of Ethics and Association policies. The investigator found that the unprofessional conduct was of a serious nature, that was neither trivial or of momentary effect, and the conduct on 6 November 2016 amounted to sexual harassment.
The investigator recommended that the Board take disciplinary action against the Applicant and that he not be engaged in coaching minors or involved in other Association activities with minors. It was recommended that consideration be given to the Applicant resuming coaching responsibilities in 2019 with adult males, after an independent psychiatric assessment has been undertaken by a specialist working in the field of young people in risk (that is, education, grooming and duty of care for minors).
In relation to the investigation, the Applicant stated in his 2023 submission to the Respondent:
“And finally, just a reminder that the Royal Commission into Institutional Responses to Sexual Abuse was in full swing at this time and everybody involved were just falling over themselves to be seen to do everything in their power to exterminate anybody reported to have upset a child.”
Mental health treatment sought by the Applicant
On 7 November 2016, the Applicant saw his General Practitioner and obtained a referral to see a psychiatrist.
On 17 November 2016, the Applicant commenced regular treatment with a psychiatrist. The Applicant was prescribed an anti-depressant which the Applicant said he found very helpful.
On 22 December 2016, the Applicant’s psychiatrist signed a medical certificate confirming that the Applicant was fit for work and able to undertake the duties of his role with the Association.
In February 2017, the Applicant began sessions with a psychologist, which was funded by the School that employed the Applicant.
On 16 March 2017, the Applicant’s psychiatrist wrote a letter to the School that the Applicant was teaching at, and stated that he had seen the Applicant on seven occasions since November 2016. The psychiatrist stated that the Applicant’s condition was Major Depressive Disorder, which was in remission and was continuing to improve. The Applicant had been prescribed antidepressant medication, which appeared to be efficacious and well tolerated. The psychiatrist noted that the Applicant’s condition was temporary, although potential for future episodes of depressive illness remained. The psychiatrist does not refer to or give any opinion about the Applicant in respect of the November 2016 incident. The psychiatrist stated that he was of the opinion that the Applicant is fit for work, and able to attend to the role of teacher.
On 31 August 2017, the Applicant’s psychologist wrote a short letter “to whom it may concern”, stating that he had seen the Applicant on six occasions for counselling between February 2017 and April 2017 as had been requested by the School. It was noted that the Applicant was consistent in his attendance and motivated in addressing the issues presented. There was no specific reference to the November 2016 incident.
The Applicant was given the opportunity to provide a detailed report from his treating psychiatrist during the investigation, however one was not provided before the investigation concluded in October 2017.
As noted above, the investigator recommended (in October 2017) that an independent psychiatric assessment be undertaken by a specialist working in the field of young people in risk if consideration was to be given to the Applicant resuming coaching responsibilities with adults. During cross-examination, the Applicant confirmed that he had not undergone an assessment as recommended by the investigator.
On 17 November 2023, the Applicant advised the Respondent during the risk assessment, that he had not taken medication or engaged in any treatment for more than six years.
In the Applicant’s submission to the Respondent on 22 February 2023, the Applicant stated that “although far from being fully recovered, I am no longer taking medication or receiving treatment for depression”. The Applicant also stated that making people, like himself, who are trying to move on with their lives “go back over all this stuff in detail all over again, is not good for your mental health. Child protection is great, but who protects the adults. They’re people too.”
On 8 April 2025, the Applicant’s psychologist who he had seen in 2017, completed a WWCC reference form. The psychologist noted that he had seen the Applicant for six counselling session between February 2017 and January 2018, with a follow up session on 8 April 2025, which was for the purpose of completing the WWCC reference form. This information is different from the information provided by the psychologist in the short letter of 31 August 2017. As the Applicant’s psychologist was not cross-examined, the reason for this discrepancy could not be tested. The Applicant included in his material, hand-written notes from sessions with his psychologist that were produced to the Tribunal under summons. These records indicate that the psychologist took notes for 11 sessions with the Applicant between February 2017 and January 2018.
In the WWCC reference form, the psychologist, noted that the treatment he had provided to the Applicant included insight-oriented psychotherapy and cognitive behaviour therapy for the Applicant’s depressive symptoms. The psychologist identified that the factor that led to the Applicant to require treatment was “one incident where there was an inappropriate communication with a minor”. The psychologist stated that the Applicant responded positively to the psychological treatment provided and throughout the sessions indicated “deep regret and remorse over this one-time occurrence”. The psychologist also stated that from the counselling sessions, it appeared that this incident was “completely out of character for this client”.
Submissions of the parties
In his application, the Applicant states:
(1)The offence was not considered serious enough to involve the Police.
(2)His conduct has been exemplary in the years since the offence.
(3)He has no criminal history at all.
(4)There is a low likelihood of reoffending.
(5)He has undergone substantial psychological treatment regarding the offence.
(6)He has taken responsibility for the offence, given apologies and expressed remorse.
(7)A clearance is in the best interests of the community given his excellent record of prior service.
During the hearing, the Applicant submitted that he “screwed up for five minutes” and did that at the “end of a depressive cliff”. The Applicant submitted that there was nothing before or after this, except for good works. The Applicant submitted that in retirement, he seeks to make a contribution to the community. The Applicant would like to go back to the Association, join the Board, and get involved in coaching and mentoring.
The Respondent submits that the Applicant poses a real and appreciable risk to the safety of children and should not be granted a clearance as:
(1)The conduct of the Applicant in the November 2016 incident, considered in its entirety, is objectively serious.
(2)The victim, who was 14 years of age at the time, was vulnerable as the Applicant was her coach, and the age difference was substantial (43 years).
(3)The Applicant’s claims as to rehabilitation and remorse are difficult to reconcile with statements that the Applicant has made which suggest that he was the victim in the matter, and the child was something of a provocateur.
(4)If the Applicant’s behaviour was repeated, it could cause psychological harm to a child, including emotional trauma and self-blame, loss of trust, isolation from peers/teammates, impacts on sporting progress and other long-term psychological impacts.
Tribunal’s findings of fact
Applicant’s conduct
The evidence in relation to the Applicant’s conduct involving the child, as outlined above, was largely undisputed.
The Tribunal, however, does not accept the Applicant’s submission about his conduct, that he “screwed up for five minutes”. That is, the Applicant has focused on the incident on 6 November 2016, where he told the child that he loved her, as the conduct of concern. The Tribunal is of the view that the Applicant’s conduct of concern involving the child, in terms of what the Tribunal should consider in assessing risk, includes the following:
(1)Asking the child to attend training at his home, which she declined.
(2)Causing the child to notice that he was paying more attention to her in the two years before November 2016. The Applicant conceded that he regarded the child as a favourite player and shared jokes with just the child.
(3)Directly sending the child a note and DVD in December 2015 without her parent’s knowledge and consent. The Tribunal is of the view that this note was overly familiar and inappropriate. The Applicant has conceded that the note had too much emotion in it and was not strictly related to the relevant sport. While the Applicant may have given a DVD to other players in the past, this would or should have been with the involvement or knowledge of the parents.
(4)Sending the child an email directly on 5 November 2016 (with neither parent of the child copied into the email), asking her to talk to him the following day.
(5)Speaking to the child directly on 6 November 2016 and away from her father and friends/teammates. Advising the child of his feelings for her - that he was in love with her, providing a rationale for this (not unusual for this to happen between coaches and players), asking her to keep this a secret, and stating that he might be staring at her more during training.
Applicant’s insight
The Tribunal finds that the Applicant has demonstrated limited insight into his conduct. The Applicant has made various statements since 2016 which deflect blame on the child (including her appearance), the child’s father, the other parents who made complaints about the Applicant, the Royal Commission into Institutional Responses to Child Sexual Abuse, the Applicant’s mental state and circumstances he was enduring at the time (including issues at home and in his workplace at the School).
Effect of Applicant’s conduct on the child
The Tribunal accepts that it would be highly distressing, confusing and troubling for the child to be told by the Applicant, after five years of regular coaching, that the Applicant was in love with her.
Applicant’s mental health treatment
The Tribunal is not able to place much weight on the reports from the Applicant’s psychologist or psychiatrist because:
(1)Neither the psychologist nor psychiatrist were aware of the whole of the Applicant’s conduct in relation to the child.
(2)The psychologist’s notes record the Applicant’s discussion about the incident on 6 November 2016 and the aftermath. The notes from the Applicant’s psychologist however are limited, as are the two formal documents the psychologist has prepared, and do not provide satisfactory or detailed evidence as to the content, efficacy or intensity of the treatment the Applicant received.
(3)The reports are not current. There is no evidence before the Tribunal from any expert as to the Applicant’s mental health since January 2018. The Applicant has not sought to obtain a detailed expert report from an appropriate expert in relation to his current mental health and whether the Applicant poses any risk to children.
The Applicant submits that mental health was a contributing factor to his conduct in relation to the child. The Tribunal, however, is not satisfied that the Applicant has undergone substantial psychological treatment or treatment that directly addresses his behaviour towards the child. Beyond what was funded by the School which went to the issue of fitness to return to work, the Applicant has not actively sought mental health treatment and assessment to address the whole of his conduct towards the child, which spanned up to a period of two years (between the time that the child noticed that the Applicant was paying more attention to her than the other players and the incident in November 2016).
Application of the law to the facts
In considering what is the correct and preferable decision, the Tribunal is to determine whether the Applicant poses a risk (a real and appreciable risk) to the safety of children. This requires that the Tribunal consider the matters in s 30(1) of the WWC Act.
Seriousness of Applicant’s conduct
The Tribunal is of the view that the Applicant’s conduct towards the child is moderately serious because:
(1)The Applicant over a period of up to two years, intentionally singled out the child by inviting her to training at his home, favouring her over other players, sending her a gift and an inappropriate note without the knowledge of her parents, and ultimately expressing his love for her. The conduct of concern did not involve sexual touching, nor did it continue after the November 2016 incident. That is why the Tribunal has assessed the conduct as moderately serious and not severe or very serious.
(2)The 6 November 2016 incident occurred in a public setting with the child’s father nearby. This did not deter the Applicant from singling out the child for the conversation that then took place.
(3)The Applicant breached his professional obligations and Association policies about contact with children by engaging in behaviour that he knew was inappropriate.
(4)The Applicant’s conduct of placing his own emotional needs over those of the child, had a significant adverse effect on the child. This included the child being shocked and confused and running crying to her father.
(5)The conduct involved the Applicant acting on the infatuation of the child he had developed before the 6 November 2016 incident, with the Applicant having observed photographs on his daughter’s Instagram account of the child with minimal clothing (or as the Applicant described “semi naked photos”), which the Applicant stated had an effect on him and was a reason why the child “was in her old coach’s head”.
(6)The Applicant’s claim that the child appeared more mentally mature than the other players, and he felt that he could talk to her as an adult and as an equal, demonstrates a lack of appreciation of the vulnerability of a 14 year old girl.
Conduct of Applicant since 2015/2016
The most recent conduct occurred nearly nine years ago, and the Applicant has not been the subject of any similar complaints. The Applicant does not have any criminal history before or after the conduct. There was no evidence before the Tribunal that the Applicant is currently subject to any order of a court or tribunal.
The Applicant submits that his conduct has been exemplary since the November 2016 incident, and that he has undergone substantial psychological treatment and taken responsibility for the offence.
The Applicant did engage in mental health treatment directly after the incident on 6 November 2016, however this was for a short period and at the instigation of the Applicant’s School. There is no evidence before the Tribunal that either the Applicant’s psychologist or psychiatrist were given any relevant background documents in relation to the November 2016 incident and what preceded it, such as the investigation report or the Applicant’s 2023 submission to the Respondent. As noted above, the Tribunal is not satisfied that the Applicant has undergone substantial psychological treatment or treatment that directly addresses his behaviour towards the child.
The investigation recommendation that the Applicant be assessed by an independent (not treating) psychiatrist with expertise in the field of young people and risk before he is considered for resuming coaching activities in 2019 with adult males. The Tribunal accepts that the Applicant would incur an expense, which may be significant, to arrange a psychiatric assessment, however the Applicant did not arrange for such an assessment, and this evidence was not before the Tribunal.
The Applicant has not been engaged in child-related work in the past nine years, and therefore any rehabilitation that the Applicant claims in terms of his mental health and capacity to not to engage in similar conduct, has not been tested.
As noted above, the Tribunal is not satisfied that the Applicant has demonstrated sufficient insight into his conduct, given his statements which deflect blame to other people and factors. The Applicant has not completed any relevant training or courses since the conduct, which may have assisted the Applicant in relation to developing insight into his conduct.
Age and vulnerability of the child
The Applicant was around 57 years of age when the matters occurred, and is currently 66 years of age. The child was aged between 13 and 14 when the matters occurred and the Applicant was well aware of the child’s age at the time of his conduct.
The Applicant was over 40 years older than the child, which is a matter which weighs heavily against the Applicant. The child was particularly vulnerable as the Applicant had been her coach for five years which created a power imbalance. The child was vulnerable as she was not only young, but the Applicant was in a position of power over the child as her coach and was in a position of having the child’s trust after coaching her regularly for five years. The Applicant was also aware of the child’s specific vulnerability with her mother being unwell with cancer at the time of the conduct.
Likelihood of the Applicant repeating the conduct
The Applicant has had a period of about nine years to consider his conduct and demonstrate appropriate insight and remorse. The Tribunal, however, is not satisfied that the Applicant has developed appropriate insight and remorse, which may reduce the risk of the conduct occurring again, because of the statements that the Applicant made in his submissions for the Respondent’s risk assessment and his statements during the proceedings. This includes the Applicant’s response to whether he considered the child “a bit slutty” and the inclusion of photographs of the child from her Instagram account in his material before the Tribunal to prove this point.
Given the lack of demonstrated insight by the Applicant into his conduct, as well as insufficient mental health or therapeutic treatment and education/training that has specifically targeted the conduct, the Tribunal is not satisfied that the Applicant, if placed in a similar situation, would not engage in the same or similar conduct.
If this conduct is repeated, then the impact on any child would likely include significant psychological harm.
Any other information given by the Applicant
The Tribunal has taken into account the Applicant’s evidence including various references and positive statements from parents of players he has coached. These references, however, do not specifically refer to the whole of the Applicant’s conduct. The only reference that directly refers to the November 2016 incident is the reference that was provided to the Respondent by the General Manager of the Association in February 2023. This reference however refers to “the only incident was the one regarding a comment made to a 15 yr old female” and “an unfortunate incident (during a period of depression) that led to his dismissal, and he acknowledged how wrong that was, with daughters of a similar age.”
What a person giving a character reference knows of the negative history of the applicant is determinative of the weight to be attributed to the reference: Minister of Transport v FV (GD) [2008] NSWADTAP 60, at [41]. The General Manager’s reference, which is the only reference that refers to the Applicant’s negative history, does not address all of the Applicant’s conduct and minimises the seriousness of the conduct (“a comment” and “an unfortunate incident”). The Tribunal therefore gives little weight to the Applicant’s character references.
In assessing risk, the Tribunal has also considered the Applicant’s undisputed evidence in relation to this extensive work and coaching history, his family relationships (including with his daughters and his partner who he has separated from in the past two years), and his plans to want to be involved in the Association and coach and mentor players.
Conclusion
The Tribunal has found that the Applicant’s conduct is moderately serious. The Tribunal has also found that the Applicant has demonstrated limited insight into his conduct, as well as insufficient mental health or therapeutic treatment and education/training that has specifically targeted the conduct, which does not give the Tribunal confidence that the Applicant would not engage in the same or similar conduct if the circumstances were repeated.
The Tribunal is not satisfied that the Applicant’s record of work and coaching or his evidence of good character from various references who do not know about the whole of the Applicant’s conduct, mitigates the risk such that the risk is not real and appreciable. These factors, including prior child protection training and knowledge of the Association’s policies about coaching children, did not prevent the Applicant from committing the conduct.
The Tribunal also does not accept that the conduct is a result of the Applicant’s mental health, anyone else’s behaviour (including that of the child) or other life stressors. As the Respondent submitted and the Tribunal accepts, people experience stress but then do not go on to express intimate adult feelings to a child. The Applicant did not prioritise the child’s safety and wellbeing over his own needs and feelings.
As there is no dispute that the conduct occurred, and having considered the s 30(1) factors, in relation to the assessment of risk, the Tribunal finds that the Applicant poses a risk to the safety of children.
Given the Tribunal’s finding that the Applicant poses a risk to the safety of children, it is not necessary to consider the reasonable person test or the public interest test in s 30(1A) of the WWC Act.
As the Tribunal has determined that the Applicant poses a risk to the safety of children, it follows that the correct and preferable decision is to affirm the decision under review.
Orders
The Tribunal affirms the decision under review.
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.
Registrar
Amendments
13 November 2025 - Paragraph 6(2) replaced 'no' with 'yes'.
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