GWD v Children's Guardian

[2025] NSWCATAD 277

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GWD v Children’s Guardian [2025] NSWCATAD 277

Hearing dates:

17 June 2025

Date of orders:

19 June 2025

Decision date:

12 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Decle, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

The decision of the Children’s Guardian on 25 June 2024 to impose an interim bar on the Applicant pursuant to s 17(2) Child Protection (Working with Children) Act 2012 is set aside.

Catchwords:

ADMINISTRATIVE REVIEW - Holder of Working with Children Check – Interim Bar – Admission of Evidence Without Provenance – Weight to be Placed on Finding of Overseas Body – Correct and Preferrable Decision – Is it Likely that there is a Real and Appreciable Risk to the Safety of Children

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Evidence Act 1995 (NSW)

Working with Children Act 2005 (VIC)

Cases Cited:

BKE v Office of the Children’s Guardian [2015] NSWSC 523

Boughey v the Queen [1986] HCA 29

Briginshaw v Briginshaw [1938] 60 CLR 336

Commission for Children and Young People v V [2002] NSWSC 949

Commissioner for Children & Young People v FZ [2011] NSWCA 111

CS v NSW Civil & Administrative Tribunal [2015] NSWSC 126

CXZ v Children’s Guardian [2020] NSWCA 338

Fitzwater & Fitzwater [2019] FamCAFC 251

Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409

GM v Department of Human Services [2025] SASCA 68

Hickson & Matthew [2022] FedCFamC1A 161

Isles & Nelissen [2022] FedCFamC1A 97

Jess (a pseudonym) [2024] NSWCATGD 16

M & M [1998] HCA 68

McDonald v Director-General of Social Security [1984] FCA 59

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11

Ministry of Transport v FV (GD) [2008] NSWADTAP 60

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Office of the Children’s Guardian v DVR [2022] NSWSC 1036

OYJ v Secretary to the Department of Justice and Regulation [2019] VCAT 33

PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union [1979] 42 FLR 331

VQB v The Secretary to the Department of Justice [2013] VCAT 789

Category:

Principal judgment

Parties:

GWD (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
A Sapienza (Applicant)
R J Pietriche (Respondent)

Solicitors:
Mark O’Brien Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00048336

Publication restriction:

Pursuant to s 64 Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the Applicant, any person who appears as a witness and any child referred to in these proceedings is prohibited.

REASONS FOR DECISION

Decision

1. The Applicant made an application pursuant to s 27(3) Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) seeking to review the decision of the Children’s Guardian on 25 June 2024 to impose an interim bar on his working with children check clearance (the review application).

2. The final hearing held on 17 June 2025 encountered some practical challenges and, with the consent of the parties, the Tribunal dispensed with the need for a further hearing and ordered that the parties file further short submissions on 18 June 2025 and the application thereafter be determined on the papers.

3. For reasons discussed below, after receiving the final submissions of the parties, the Tribunal determined it was appropriate to deliver its decision prior to issuing its reasons.

4. On 19 June 2025, the Tribunal made an order setting aside the decision of the Children’s Guardian on 25 June 2024 to impose an interim bar on the Applicant pursuant to s 17(2) WWC Act. The parties were notified that written reasons would be provided. These are those reasons.

5. It is noted that in between making the above order and delivering these reasons, the WWC Act has been substantively amended. The references to the WWC Act in this decision relate to the version in existence as at 19 June 2025.

Background

6. The Applicant was a professional sportsperson who competed at a national and international level until 2022.

7. On 2 July 2020, the Applicant was issued with a Working with Children Check clearance (WWCC). Pursuant to this clearance, the Applicant coached mainly young people in New South Wales.

8. In June 2024, the Children’s Guardian received information about a decision made by an overseas body to the effect that the Applicant had engaged in behaviour towards a minor that breached their code of conduct. Following this, an interim bar was imposed on the Applicant’s WWCC (the interim bar decision) and the Applicant was notified that the Children’s Guardian proposed to cancel his WWCC and was conducting a risk assessment.

9. On 6 February 2025, the Applicant filed the review application.

10. The Tribunal made directions in March 2025 for the Children’s Guardian to file documents required by s 58 Administrative Decisions Review Act 1997 (NSW) (ADR Act) (s58 Documents), for the Applicant to file the evidence he relied upon and an order that the name of any person mentioned in the proceedings or referred to in any documentary material is prohibited.

11. In May 2025, the Tribunal listed the matter for final hearing, noting that it was given “expedition because the interim bar expires on 26 June 2025”. Directions were also made with respect to a foreshadowed application by the Children’s Guardian for orders to keep certain documents confidential.

The final hearing on 17 June 2025

12. Shortly before the final hearing was due to commence on 17 June 2025, the Tribunal building and surrounding area was impacted by a significant flooding event. There were two relevant effects from this. The Children’s Guardian was unable to physically attend the hearing room (where the Applicant and his legal representatives and witnesses were already present) and the Tribunal lost some technical services including the ability to record the hearing.

13. With immense effort and resourcefulness in difficult circumstances, the Tribunal registry staff were able to arrange for the Children’s Guardian to appear by audio visual link and to record the hearing using portable recording equipment.

14. As there was a risk of the review application becoming nugatory if the hearing did not proceed that day, the Tribunal decided that it was desirable to hear the Children’s Guardian in respect of their Confidentiality Application by AVL and in the absence of the Applicant and his legal representatives.

15. After hearing the Confidentiality Application, when the open session resumed, the Children’s Guardian withdrew the Confidentiality Application and made an oral application that the Children’s Guardian be excused from lodging the Confidential Material with the Tribunal pursuant to s 59 ADR Act. That order was not opposed by the Applicant and was made by the Tribunal having been satisfied it would have made some confidentiality orders with respect to that material.

16. The hearing resumed after lunch with both the Applicant and the Children’s Guardian and their legal representatives appearing in person.

17. Evidentiary issues were dealt with (referred to at pars 58 to 61 below). Unfortunately, just prior to the Applicant giving evidence, the building in which the Tribunal was sitting was evacuated for the day due to flood damage to essential services. The Tribunal gave the parties the option of adjourning the hearing part-heard to the following week. The parties proposed instead that the Tribunal determine the matter on the papers, giving appropriate weight to the fact that the Applicant’s evidence would not be tested under cross-examination. The Children’s Guardian sought the opportunity to make further short written submissions in respect to the weight to be given to the Arbitration Decision and this course was not opposed by the Applicant provided they had the right of reply.

18. In circumstances where evidentiary issues had been dealt with, the parties had filed written submissions and would have the opportunity to file further submissions, the fact that the interim bar would be expiring shortly and the unfortunate difficulties arising out of the flooding event, the Tribunal determined that it was appropriate to dispense with an oral hearing and reserved its decision.

Jurisdiction

19. The Tribunal has jurisdiction to review a decision of the Children’s Guardian to impose an interim bar, provided the application for review is not filed more than 6 months after the interim bar decision (s 27(3) WWC Act). That condition has been satisfied.

20. There is no requirement for the Applicant to seek an internal review before making an application to the Tribunal for administrative review of a decision that is reviewable under the WWC Act (s 27(7) WWC Act).

21. Consequently, ss 7 and 9 Administrative Decisions Review Act 1997 (NSW) (ADR Act) give the Tribunal jurisdiction to hear and determine this application.

22. The Tribunal’s role is to decide what is the correct and preferrable decision having regard to the material before it and relevant law (s 63(1) ADR Act).

Legislative Scheme and Relevant Caselaw

23. The Tribunal is required to determine whether the Children Guardian’s decision to impose an interim bar is the correct and preferable decision.

24. The context in which the Tribunal is making its decision is legislation which has as its paramount consideration protecting children from child abuse (s 4 WWC Act):

4 Safety, welfare and well-being of children to be paramount consideration

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.

25. Section 17 WWC Act governs when an interim bar may be imposed:

17 Interim bars

(1) The Children’s Guardian may, at any time after receiving an application for a working with children check clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following—

(a) engaging in child-related work,

(b) residing on the same property as an authorised carer,

(c) residing on a property where a family day care service is provided.

(2) The Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1)(b) or (c) pending the determination of the application or assessment.

(3) The Children’s Guardian must as soon as practicable after determining that an applicant or holder is subject to an interim bar, give written notice of that determination to the applicant or holder and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant or holder.

(4) An interim bar ceases to have effect—

(a) on notification in writing by the Children’s Guardian to the applicant or holder that the interim bar is revoked, or

(b) in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or

(c) 12 months after the interim bar takes effect,

whichever occurs first.

26. A ‘risk to the safety of children’ is defined in s 5B WWC Act as “a real and appreciable risk to the safety of children”.

27. Pursuant to s 5(1) WWC Act, ‘children’ means ‘persons under the age of 18 years’.

28. In determining this application, the Tribunal is specifically required to have regard to each matter listed in s 30(1) WWC Act that is relevant (BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126). The list of potentially relevant matters are:

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.

29. In Commission for Children and Young People v V [2002] NSWSC 949, Young CJ provided the meaning of ‘risk’ which underpins the current statutory test [42]:

It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word “risk” with the words that follow, namely, “to the safety of children”.

30. The task of assessing whether there is a real and appreciable risk to the safety of children pursuant to the WWC Act has been judicially considered over the years. The focus of much of this consideration has been how to assess risk in those difficult cases where it cannot be determined that the alleged harmful conduct is true, but neither can it be determined that the allegations have no foundation.

31. In CXZ v Children’s Guardian [2020] NSWCA 338 at [54-7] (CXZ), Simpson JA (with whom McCallum J agreed) explained the task as follows:

52. Nowhere does the High Court [M & M [1998] HCA 68] say, or suggest, that every individual allegation is to be assessed as either “well founded” or “groundless”. Nowhere does the High Court say, or suggest, that all allegations must be treated as falling into one or other of those categories. Indeed, it explicitly says the opposite. In those cases which do not fall into one or other of those categories the court or tribunal must decide whether the evidence is such as to justify a finding that there is a relevant risk.

53. In the context of the Child Protection Act this assessment will depend upon a number of things: among them, the seriousness of the allegations, the strength of any evidentiary support for the allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant.

54. The view I have expressed above that the proposition that a three-step process is required should be rejected is in accordance with what Beech-Jones J said in BKE. At [33] his Honour said:

“… Thus in such cases it may be that [the Tribunal] can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, [the Tribunal] 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, [the Tribunal] 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.”

...

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.

[Emphasis added].

32. The issue of risk analysis has been judicially considered in many jurisdictions in Australia, including state working with children cases, child welfare cases and family law cases. Many of those cases, in the Tribunal’s view, show substantial uniformity in the way in which risk of harm to children is conceptualised and analysed. That is not surprising as they have a common jurisprudential foundation.

33. In 2022, a 5-judge bench of the Full Court of the Federal Circuit & Family Court of Australia was specially constituted to consider an appeal which dealt with arguments around the concept of risk of harm to children in parenting cases: Isles & Nelissen [2022] FedCFamC1A 97 (Isles & Nelissen). In a unanimous decision, the Full Court held that the High Court case of M & M [1998] HCA 68 was the foundation for the development of jurisprudence concerning risk of harm to children in many jurisdictions, including family law and WWC Act matters, and specifically referred with approval to the decision in CXZ (at [55]). A special leave application to appeal this decision was refused by the High Court.

34. That decision is plainly consistent with the existing view of the NSW Court of Appeal considering WWC Act matters (CXZ per Basten JA at [25], McCallum JA at [28] and Simpson AJA at [44] - [56]) and other decisions of the NSW Supreme Court (see for example the discussions in BKE v Office of the Children’s Guardian [2015] NSWSC 523, Office of the Children’s Guardian v CFW [2016] NSWSC 1406 at [23] - [29] and Office of the Children’s Guardian v DVR [2022] NSWSC 1036 at [37] - [43]).

35. The common foundation across jurisdictions has produced a broad range of helpful descriptions of the general process of risk analysis in cases concerning the safety of children. Of course, in having regard to these cases, it is essential that decision-makers keep in mind the substantive differences that exist in the application of risk analysis principles in different jurisdictional contexts (CXZ per Basten JA at [14] - [16] and Simpson AJA at [50]).

36. The Full Court in Isles & Nelissen approved (at [50]) the formulation by Austin J in Fitzwater & Fitzwater [2019] FamCAFC 251 that risk exists on a spectrum [139]:

Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. ...At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

37. In Hickson & Matthew [2022] FedCFamC1A 161, McClelland DCJ summarised the findings in Isles & Nelissen and explained that at its’ essence [38]:

...determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence...

38. In GM v Department of Human Services [2025] SASCA 68, the South Australian Court of Appeal described the task of assessing risk to the safety of children (in the context of South Australian working with children legislation) in a more expansive manner:

110. As to the degree of risk, the exercise involves an assessment of the likelihood of the apprehended harm occurring. It will usually involve a consideration of the past behaviour and conduct of the relevant adult. That may take the form of abuse of a physical, sexual, psychological or emotional nature. It will include abuse in its widest sense, and so including conduct such as manipulation, intimidation, threats, harassment or neglect. But it will also extend to consideration of conduct that might be described as grooming or poor boundary recognition (particularly in the context of relationships involving a degree of authority or power on the part of the adult). It will include other behaviour which might be indicative of a prurient interest in a child or children, or of an interest in other inappropriate sexual or violent behaviour. It will also include behaviour which might represent a less direct risk of harm to children, such as a dysfunctional or hazardous lifestyle, difficulties with the abuse of alcohol or drugs, or adherence to social attitudes or beliefs which conflict with broader community norms.

111. As mentioned later in these reasons, past conduct need not be proven to any particular standard for it to be relevant to the assessment. Nor does there need to be a likelihood of any particular form of harm occurring before it may be taken into account. However, in determining what weight should be attached to information about past conduct and the prospect of apprehended harm in the future, it will be important to have regard to where on the spectrum of proof or satisfaction the information as to past conduct lies. It will be important to have regard to whether it represents, for example, proven past conduct, allegations based upon some sound factual basis and from an apparently credible source, or mere allegations without any identified factual basis or source.

112. As to the seriousness of the risk, this involves a consideration of the potential gravity of the consequences for a child were the apprehended harm to occur. This may range from a risk of immediate and significant physical or sexual harm, through to a risk of a longer-term form of psychological or emotional harm.

113. The assessment will often be multi-faceted, involving consideration of a range of information about past behaviours and risks, of varying types and with varying degrees of likelihood and seriousness. In such cases, it will require an assimilation and synthesis of this information, in order to arrive at an overall assessment of the risk that the relevant adult poses to children.

...

115. It may be expected that a realistic prospect of relatively serious harm would ordinarily be unacceptable. Conversely, it may be expected that a fanciful, farfetched or theoretical prospect of mild or insignificant harm would ordinarily be acceptable. However, as should be apparent from the above articulation of the process, it is difficult, and generally unwise, to generalise.

39. These above cases show, in the Tribunal’s view, a consistent approach to risk assessment across jurisdictions. The totality of the evidence concerning the alleged past conduct must be carefully considered and assessment made as to the weight to be given to that evidence. Unless allegations are rejected as groundless, the alleged conduct must be considered regardless of whether it is a mere possibility or based on strong foundation. The Tribunal must determine to what extent the alleged past conduct, individually or cumulatively, is potentially harmful to the safety of children. The Tribunal must also consider the likelihood of the alleged past conduct occurring in the future. It is the synthesis of these factors which allows the Tribunal to assess where the conduct in question falls along the spectrum of risk to the safety of children.

40. The present case requires the Tribunal to have regard to the legislative aim of protecting children from child abuse, the matters in s 30(1) WWC Act and, using the method of risk analysis derived from caselaw, the Tribunal must assess whether it is ‘likely’ that there is a risk to the safety of children if the Applicant engages in child related work or engages in the conduct regulated by s17(1)(a)-(c) WWC Act. The meaning of ‘likely’ is not defined in the WWC Act, nor has this section been the subject of judicial consideration.

41. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union [1979] 42 FLR 331, at [339] the Full Federal Court discussed the ambulatory meanings of ‘likely’ as follows:

The word “likely” is one which has various shades of meaning. It may mean “probable” in the sense of “more probable than not” - “more than a fifty per cent chance”. It may mean “material risk” as seen by a reasonable man “such as might happen”. It may mean “some possibility” - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

42. In the case of Jess (a pseudonym) [2024] NSWCATGD 16, the Tribunal sitting in its Guardianship Division considered the meaning of ‘reasonably likely’ for the purpose of considering an application for special medical treatment of a child. The Tribunal found:

The adverb “reasonably” in the expression “reasonably likely” conveys a sense that the likelihood of an event occurring is relatively less than it is “likely”. The qualifying adverb diminishes the phrase’s weight or intensity compared with the power of the adjective “likely” standing by itself. It conveys a sense that there is “a fairly good chance” that the potential event will occur: see Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 at [150]-[152] (Palmer J); see also Department of Agriculture and Rural Affairs v Binnie [1989] VR 836. The “likely” event is not one which is more likely than not to occur, that is “odds on”, or necessarily probable but must be more than a mere possibility: Re the Will of Bridget [2018] NSWSC 1509 at [106]-[108] (Hallen J).

43. Ultimately, the meaning of ‘likely’ must be drawn from the context of the WWC Act (Boughey v the Queen [1986] HCA 29 at [14]). The relevant context is the Children’s Guardian receiving information that results in an assessment being triggered in respect of a person who has applied for or who already has a clearance. The purpose of imposing an interim bar is clearly intended to protect children while the Children’s Guardian is gathering information as part of its assessment as to whether the person poses a risk to the safety of children.

44. Although parliament has chosen to use ‘likely’ over other words such as ‘possible’ or ‘reasonably likely’, the particular statutory context that ‘likely’ appears in s 17 WWC Act is protective. The Tribunal therefore considers that ‘likely’ is intended to require satisfaction that is more than a possibility, but less than a strong probability.

45. If the Tribunal is not satisfied that it is likely that the Applicant poses a risk to the safety of children, the Tribunal must not set aside the Children Guardian’s decision (which would have the effect of allowing the Applicant to work with children) unless s 30(1A) WWC Act is satisfied. That section states:

(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.

46. The first limb of this test is to be determined by reference to a hypothetical ‘reasonable person’. The Tribunal was not referred to and has been unable to find any judicial authority considering the scope of this test in NSW. However, there have been some administrative and judicial decisions in respect of a substantially similar reasonable person test in Victorian working with children legislation. Section 13(3)(a) and 26A(4)(a) Working with Children Act 2005 (VIC) (WWC Act (VIC)) provides that the Secretary or Tribunal (whoever is considering the matter) must be satisfied that:

a reasonable person would 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 type of child-related work.

47. In VQB v The Secretary to the Department of Justice [2013] VCAT 789, the Vice-President of the Victorian Civil and Administrative Tribunal considered the reasonable person test in the WWC Act (VIC) in the context of an applicant who had a series of relatively recent convictions for domestic violence related offences and a significant psychiatric disorder (although he was medicated and receiving treatment). The Vice-President held that the reasonable person test was to be objectively determined and that:

A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

48. In PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514, Bell J rejected an argument that the reasonable person test in the WWC Act (VIC) was akin to what is colloquially known as ‘the pub test’. Bell J affirmed that it was an objective test that requires consideration of the response of a reasonable person who has knowledge of all of the facts and surrounding circumstances (at [57]).

49. In OYJ v Secretary to the Department of Justice and Regulation [2019] VCAT 33, Deputy President Lulham considered that the reasonable person test in WWC Act (VIC) should be interpreted in the following ways:

1. To be consistent with human experience that a reasonable parent would be more cautious about risks to their own child than they would in respect of other peoples’ children [94];

2. But, not so broadly so as to remove the intent behind this section [96]:

A hypothetical reasonable person, considering whether to allow their own child to have direct contact with an applicant for an Assessment Notice, could well take a different view if their child was very young and it was proposed that the child would be entirely alone with the applicant, than if the child was 17 years of age and was to be in contact with the applicant only at a school camp attended by many other teenage children and a number of teachers. This much is clear. But to refer to the broad range of possibilities in this way invites a misinterpretation and misapplication of the subsection 26A(4)(a), because it could create a situation where an applicant could never satisfy the test. The broader the age range of the child, and the broader the range of activities being child-related work as broadly defined, the more difficult it becomes to conclude that a reasonable person would ever allow his or her child to have direct contact with an applicant while the applicant was engaged in any type of child-related work

50. The second limb of the test in s 30(1A) WWC Act is the ‘public interest’ test. That test is also objective and requires the Tribunal to consider the public interest, which necessarily includes the interest of the community in protecting children from child abuse, and to prioritise that over the private interest of the Applicant. The Respondent conceded that if the Tribunal found that the Applicant did not pose a real and appreciable risk to the safety of children and the reasonable person test in s 30(1A) WWC Act was satisfied, that it would be in the public interest for the Applicant to be granted a clearance.

Approach to Fact-Finding

51. There is no onus of proof on any party in this type of administrative review proceedings (McDonald v Director-General of Social Security [1984] FCA 59). Notwithstanding the Applicant has held a WWCC since 2020, there is no presumption that he does or does not pose a risk of harm to children.

52. The Tribunal is not constrained to the material relied upon by the Children’s Guardian in its interim bar decision and must also consider the material existing at the time of the hearing (Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409). This is particularly important when making decisions about potential risk to the safety of children.

53. In determining the facts, 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” (s 38(2) CAT Act). This means the Tribunal has a discretion to act on any material that is rationally probative; but must determine whether in all the circumstances it is proper to act on that material and must act fairly towards the parties (Commissioner for Children & Young People v FZ [2011] NSWCA 111 (FZ)).

54. It is important to understand the distinction between making findings of fact and undertaking assessment of risk.

55. Fact-finding involves consideration of evidence about past known events. Facts are either established or not established. It is a binary exercise. The standard of proof for findings of fact in civil proceedings is the balance of probabilities. The Tribunal has regard to the principle arising from Briginshaw v Briginshaw [1938] 60 CLR 336 (Briginshaw) that the degree of satisfaction required to make a finding on the balance of probabilities will depend upon the nature of the issues. Factors that are relevant to the degree of satisfaction that must be achieved include “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” (Briginshaw at p 362).

56. The assessment of risk involves deciding the degree of possibility of future events occurring that pose a risk to the safety of children. It is a predictive and evaluative exercise based upon consideration of all relevant evidence of past events before the decision-maker (whether they are proven as facts or not). The civil standard of proof has no role to play in the assessment of risk: Isles & Nelissen at [47].

Material before the Tribunal

Hearing Bundle

57. The Tribunal received in evidence a Hearing Bundle prepared by the parties which contained material that had been filed in advance and read by the Tribunal in preparation for the final hearing. The evidence admitted, except the document referred to in par 58 to 61 below, included the following documents:

1. For the Children’s Guardian

1. Section 58 Documents filed on 14 March 2025;

2. Supplementary s 58 Documents filed on 27 March 2025;

3. Further supplementary s 58 Documents filed on 30 April 2025;

4. Non-confidential version of an Affidavit of MLC (an employee of the Children’s Guardian) dated 19 May 2025;

5. Non-confidential version of an Affidavit of TK (an employee of the Children’s Guardian) dated 20 May 2025; and

6. Non-confidential version of written submissions drawn on 6 June 2025.

7. Supplementary submissions drawn on 18 June 2025.

2. For the Applicant:

1. Review Application filed 6 February 2025;

2. Affidavit of the Applicant dated 1 April 2025;

3. Affidavit of RM dated 25 March 2025;

4. Affidavit of the Applicant’s parent dated 1 April 2025;

5. A bundle of references lodged 2 April 2025;

6. Affidavit of the Applicant dated 28 May 2025;

7. Written submissions drawn on 28 May 2025;

8. Affidavit of the Applicant dated 13 June 2025 (with the consent of the Children’s Guardian the Tribunal granted leave for the Applicant to rely upon this further Affidavit);

9. Written submissions in reply drawn on 13 June 2025.

10. Supplementary submissions drawn on 18 June 2025.

Rejected document

58. The Tribunal did not accept into evidence a two-page typed document relied upon by the Children’s Guardian which was described in the index to the Supplementary Bundle to be a victim impact statement by Claimant 1 who had made relevant allegations about the Applicant’s conduct overseas. The document was typed, undated and unsigned. The document, which appeared to be written in first person by Claimant 1, contained fresh allegations against the Applicant not previously made by her in the formal processes that she and the Applicant had already engaged.

59. The Applicant opposed the document being accepted. In short, the Applicant argued it would be unfair to admit the document as evidence of the truth of its contents where it was unsworn and Claimant 1 was not available to be cross-examined about it (relying upon authorities such as FZ). If the document were admitted as to the fact that allegations were made, its probative value would be negligible. The Children’s Guardian submitted that the Tribunal should have regard to the document as it contained statements by Claimant 1 about the Applicant’s alleged abusive behaviour towards her; the fact that it was unsworn/unsigned went to the issue of weight. It was submitted that the statement could be used as evidence of the truth of the allegations and it was a relevant matter that Claimant 1 had made these further allegations. Cases such as FZ were distinguishable because those cases typically involved material that derived from separate proceedings. Here the substance of the allegations in the document gave weight to the other evidence of Claimant 1’s allegations.

60. The Tribunal rejects the contention that just because a document contains allegations that could be relevant to the risk of harm to children it should be admitted into evidence and questions about provenance should be addressed when assessing its weight. In this case, there is no material before the Tribunal (no email, file-note or other document) which give any clue as to the provenance of the document. When this issue was raised, the Children’s Guardian did not seek an opportunity to adduce evidence which might shed light on who wrote it or how and when it came into existence. It was plain from the material already before the Tribunal that at least one third party was the source of material provided to the Children’s Guardian and there was significant animus (including threats of legal action) between that third party and the Applicant and his parent. Without any evidence capable of linking the document to Claimant 1, the allegations in the document could not have any probative value.

61. Even if there was some evidence demonstrating that the document had been written by Claimant 1, or even if the Tribunal assumed that it was written by Claimant 1, there were strong reasons against it being admitted.

1. The Children’s Guardian accepted that there was no evidence before the Tribunal as to why Claimant 1 had not given a sworn statement or was not available for cross-examination. The failure to give evidence about Claimant 1’s availability is significant in circumstances where the evidence suggested a person in contact with the Children’s Guardian was also in contact with Claimant 1.

2. It would be unfair to the Applicant for the Tribunal to give any substantial weight to new unsworn allegations of Claimant 1 without having any opportunity to test them.

3. The fact that the document purportedly contained fresh complaints about the Applicant by Claimant 1 is not a compelling reason to admit the document. It was unexplained why Claimant 1 had not given sworn evidence about these complaints in the overseas arbitration proceedings in August-September 2024. The form and the content of the document did not produce any corroborative effect in respect of the sworn allegations made in the arbitration proceedings.

1. Finally, to the extent that the document was said to contain evidence by Claimant 1 as to the impact on her of the Applicant’s alleged conduct, there was sufficient record of those matters otherwise before the Tribunal in the Arbitration Decision.

Section 128 Certificate

62. A limited certificate was issued to the Applicant with respect to evidence which tended to prove that he had committed an offence in an overseas jurisdiction pursuant to s 128 Evidence Act 1995 (NSW).

General issues of weight

63. In reaching its decision on 19 June 2025, the Tribunal read and considered the material referred to in par 57 above. In doing so, the Tribunal has had regard to general issues of weight attaching to the evidence discussed below.

64. The evidence given by the Applicant in these proceedings was not tested by cross-examination with the effect that his credibility and reliability cannot be assumed other than what it is apparent on the face of the material.

65. The Children’s Guardian relies upon an Arbitration Decision delivered in the overseas jurisdiction concerning relevant allegations against the Applicant. The Tribunal was not provided by either party in the present proceedings with any of the material that was before the Arbitrator. The only official record of what occurred during the arbitration hearing is contained in the Arbitrator’s decision issued on 16 September 2024 (the Arbitration Decision).

66. The Arbitration Decision discloses that the parties were an overseas organisation for the prevention of abuse in elite sport (the safety organisation) and the Applicant. The overseas hearing was conducted virtually and Claimant 1, the Applicant and one other witness gave evidence. The evidence of Claimant 2 and other known and unknown witnesses came solely through a safety organisation investigation report prepared by an unknown investigator/s. The Arbitrator was entitled (by reference to the relevant safety organisation Code) to accept the investigation report into evidence even though it was not tested. The Applicant, through his lawyers, had the opportunity to submit written questions to the Arbitrator who asked them of Claimant 1 in a ‘neutral manner’. Opening and closing statements were made. None of the hearing was recorded.

67. The Arbitration Decision is plainly relevant; however, its findings are not binding on the Tribunal. The Tribunal is required to make its own findings on material questions of fact and is not even constrained by prior decisions involving the same factual history (ie. Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 per McHugh at [37]). Like any other piece of evidence, the Tribunal must assess the weight to be attached to any relevant findings made by the Arbitrator. The Tribunal considers that the Arbitrator’s findings are to be given due weight for the fact that the Arbitrator was professionally engaged by safety organisation to inquire into and determine whether the Applicant had violated the safety organisation Code and what consequences should flow for the protection of athletes, including minor athletes, under their jurisdiction. Giving due weight to the Arbitrator’s findings does not obviate the need for the Tribunal to forensically assess the evidence so far as it is relevant to findings that this Tribunal needs to make. For example, it is also a relevant matter that the Arbitrator’s assessment of the credibility of the parties was made in the context that the Applicant and Claimant 1’s evidence was tested but not in the manner of cross-examination, let alone vigorous cross-examination, suggested by the Children’s Guardian.

Relevant Evidence

68. Unless otherwise indicated, the following represents findings of relevant fact made by the Tribunal.

69. During his professional career spanning many years until 2022, the Applicant was an Australian national champion at the highest levels.

70. In 2012, at the age of 17-8 years, the Applicant moved overseas to train with an elite coach. In November 2017, at the age of about 23 years, the Applicant moved to another region in the same country, to train with another coach.

71. In March 2020, the safety organisation received a report that the Applicant had allegedly engaged in misconduct against Claimant 1 and Claimant 2 between 2016 and 2017. The safety organisation is an independent body set up by the government of the overseas country to, among other things, investigate allegations of abuse and misconduct against athletes participating at the highest levels in that country. No records were presented by either party in the current proceedings in respect of the investigation or determination of the complaints concerning the Applicant by the safety organisation, and what follows is ascertained from the reasons of the later Arbitration Decision.

72. Initially the safety organisation considered it did not have jurisdiction to investigate the complaints. However, in 2021, the Applicant was notified by the safety organisation of the complaints and that an investigation was being undertaken. The Applicant participated in a short interview with an investigator, conducted virtually. The Applicant was not otherwise given an opportunity to see or respond to the allegations against him. A temporary order was made preventing the Applicant from having contact with the complainants, however, it appears that no steps were taken by the safety organisation to preclude the Applicant from performing or competing in that country pending finalisation of their investigation. In 2022, the Applicant was invited by a sporting association in that country to compete in a prestigious sporting event.

73. In 2022, the Applicant retired from professional sport, returned permanently to Australia and started working full-time as a coach. He had 15 to 20 clients who paid him for individual and group lessons. The ages of the students were from 4yo to 28yo, with most of the students between 9yo and 15yo.

74. In 2024, Claimant 2 published material including allegations that the Applicant had abused her. That material and the content of those allegations were not before the Tribunal.

75. In 2024, reforms were made to the Safety organisation’s investigation procedures which included the right for respondents to review and respond to the safety organisation’s evidence.

76. More than 4 years after the first report, the safety organisation issued a Notice of decision to the effect that the Applicant had:

1. Engaged in physical misconduct by providing Claimant 1 alcohol in 2016 and 2017 when she was under the legal drinking age;

2. Engaged in sexual misconduct with Claimant 1 on multiple occasions between 2016 and 2017 when she was 16-17 and the Applicant was 21-22; and

3. Engaged in battery in 2017 – by kissing Claimant 2 over her objection.

(the safety organisation decision).

77. A further allegation by Claimant 2 that the Applicant had sexually assaulted her in 2017 was rejected by the safety organisation.

78. The safety organisation determined that the Applicant was permanently ineligible from participating in any event, program, activity or competition authorised by, organised by or under the auspices of the country’s highest level sporting organisations. Additionally, the safety organisation determined the Applicant should have no contact with the claimants.

79. The Applicant became aware of the safety organisation’s decision the day after it was issued. That same day, the Applicant’s parent, who at the time was involved with several professional sporting bodies that the Applicant was involved with, contacted the Children’s Guardian to notify them of the safety organisation’s decision. Parents of the Applicant’s minor students were also contacted.

80. The following month, in June 2024, the Children’s Guardian issued an interim bar formally preventing the Applicant from working with children. From that time, the Applicant ceased coaching completely and removed himself from professional bodies in the sport.

81. The Applicant appealed the safety organisation decision and an Arbitration hearing was conducted later in 2024. The Arbitration Decision contains relevant findings said to be using ‘the preponderance of the evidence’ (balance of probabilities) as the standard of proof. The Tribunal accepts relevant aspects of those findings to the extent they are set out below.

82. At the time of the alleged conduct, which occurred in overseas Region A, it was unlawful to furnish alcohol to a minor. It is unclear whether this was defined as being a child under the age of 18 years or 21 years, but resolution of that question is not necessary. It was also unlawful for an adult to have sex or oral copulation with a minor (being a child under the age of 18 years) and the minor was unable to consent to such acts.

83. Claimant 1 met the Applicant in October 2015 and they maintained a social media connection. The Applicant encouraged her to meet and try to be trained by his coach in Region A.

84. Claimant 1 visited Region A in January 2016 and on other occasions before moving there in June 2016. Claimant 1’s parents were opposed to her move and they were estranged for a period causing Claimant 1 mental distress.

85. After moving to Region A Claimant 1 joined the training group. Claimant 1 and the Applicant spent time together alone and socially with others who were also being trained by the same coach. Claimant 1 considered the Applicant supported her and that he was her best friend.

86. The Applicant provided alcohol to Claimant 1:

1. In January 2016 when she was 16 years old and the Applicant was 21 years old. The Claimant and the Applicant had been at a team gathering. The Claimant was looking for a ride back to her aunt’s home, which the Applicant gave her. The supply of alcohol occurred during the trip.

2. By admission in August/September 2016 at his apartment (despite the Applicant denying during the investigation having any recollection of providing alcohol to Claimant 1). Claimant 1 turned 17 years old in August 2016 and the Applicant would still have been 21 years old.

87. The Applicant admitted to having sexual intercourse with Claimant 1 between 10 and 20 times after she turned 17 years of age, between August 2016 and June 2017.

88. The conduct in par 86 and 87 above was enough for the Arbitrator to find that the Applicant had breached the safety organisation’s code of conduct; it amounted to a breach of community standards because it was against the law in Region A. The Tribunal considers these were significant findings for the Arbitrator. The Arbitrator repeatedly stated they were enough to dispose of the matter leaving the impression that the Arbitrator’s other findings about the interactions between the Applicant and Claimant 1 were not necessary for the Arbitrator’s ultimate decision. Nonetheless, the other findings of the Arbitrator as to alleged conduct by the Applicant are said by the Children’s Guardian to demonstrate the Applicant poses a risk to the safety of children, and the Tribunal therefore has also considered these findings carefully.

89. Between August 2016 and June 2017 when the Applicant and the Claimant 1 were having sexual intercourse, neither the Applicant or Claimant 1 considered they were in a relationship or “boyfriend” and “girlfriend”. Others in their social/training circle did not know that they were having intercourse. The Applicant was having intercourse with other people, including it seems Claimant 2, during the same period.

90. The Arbitrator found and the Tribunal accepts:

1. The Applicant was not ‘grooming’ Claimant 1, but she was a lonely and vulnerable teenager living away from home.

2. That the Applicant failed to exercise boundaries with his young friend who was also part of the same coaching group, creating a negative impact on her.

91. The Arbitrator found in certain respects that the evidence of Claimant 1 was more credible than the Applicant and accepted several contentions by Claimant 1 over the denials or contrary accounts given by the Applicant. Where these findings are relevant to the issue of the risk posed by the Applicant to children they are discussed below.

92. The Arbitrator found and the Tribunal accepts the Applicant was Claimant 1’s first sexual encounter and that the experience, including being ‘taught’ how to give oral intercourse, was a shock and was a ‘big deal’ to her.

93. The Arbitrator found the Applicant kept his sexual relationship with Claimant 1 secret because he knew it was wrong (at law). The Arbitrator found that both parties agreed they were not in a relationship, but the Arbitrator accepted Claimant 1’s account that the Applicant asked Claimant 1 to keep the sexual relationship secret (telling others they were like siblings) and found that the Applicant did not tell his friends about it despite being open about other relationships with them.

1. The Tribunal notes that the Applicant continues to deny that he was aware of the age of consent in Region A until the end of his sexual relationship with Claimant 1. The Applicant says he would not have had a sexual relationship with Claimant 1 if he had known. The Applicant also says that Claimant 1 told him she did not want to be boyfriend/girlfriend and in that context agreed not to tell anyone of their sexual relationship. His motivation was said to be that the sport community was rife with gossip and as they were not boyfriend/girlfriend he wanted to keep it private. There was evidence before the Arbitrator that the Applicant was having sexual intercourse with another person, possibly Claimant 2, in the same period as Claimant 1.

2. The Tribunal is unable to find that the Applicant knew of the age of consent in Region A, although it is likely that he had knowledge given he had been living in Region A since 2012 between the ages of 17 and 22 years; a period that many young people would be or be contemplating being sexually active. The Tribunal accepts that in the Region that Claimant 1 was from (Region B), the age of consent was 17 years. Claimant 1 and the Applicant both agree that their sexual relationship started shortly after Claimant 1 turned 17 years of age, and the Tribunal finds that it is probable both were to some degree alive to this issue. It is certainly possible that the Applicant wanted to keep the relationship quiet because of Claimant 1’s age. It is also possible that he was respecting her privacy. Whether or not the Applicant knew his interactions with Claimant 1 were unlawful and he was being deliberately deceptive for that reason, it was at minimum insensitive behaviour potentially reflecting a pre-occupation with his own needs and interests over Claimant 1’s.

94. The Arbitrator found, over the Applicant’s denial, that the Claimant experienced emotional pressure/force from the Applicant to continue to have intercourse and oral sex with him between September 2016 and June 2017. While the Tribunal is mindful that the Arbitrator saw the parties give evidence first-hand and had before her statements that are not before the Tribunal, there is limited evidence and little to no details or context in the Arbitrator’s reasons as to what the Applicant is said to have said or done which supports this finding. There were also no contemporaneous complaints by Claimant 1. The evidence recounted by the Arbitrator is almost exclusively the account of Claimant 1, given many years after the events in question, as to how she felt or perceived events before, during and after intercourse with the Applicant. Even if the Tribunal accepts this evidence, having regard to the standard of persuasion required by Briginshaw, the Tribunal cannot find the Applicant did exert emotional pressure or force on Claimant 1 to have intercourse with him. It is, of course, possible that the Applicant did so, but the evidence does not allow the Tribunal to give any significant weight to this allegation.

95. The Arbitrator found that the Applicant took advantage of a young, socially immature, vulnerable girl. The Tribunal accepts on the evidence in the Arbitration decision that Claimant 1 was young, socially immature and vulnerable. It is not clear however, what evidence supported the Arbitrator’s finding that the Applicant took advantage of Claimant 1. Again, there is limited evidence of specific acts or things said by the Applicant which demonstrate this finding. The primary evidence recounted in the Arbitration Decision again appears to be Claimant 1’s account of how events made her feel, sometimes from the perspective of many years later. Furthermore, Claimant 1 gave evidence suggesting that, while she later came to understand it was unhealthy behaviour, at the time she used sex to keep the Applicant interested or close. This gives the impression of a disjuncture between the actual events and Claimant 1’s current feelings about them.

96. While the Arbitrator found and the Tribunal accepts the Applicant provided alcohol to Claimant 1 and that they consumed alcohol together at times that they had intercourse, which could infer exploitation, the Arbitrator specifically rejected the contention that the Applicant groomed Claimant 1. The evidence of both the Applicant and Claimant 1 (and the only witness) shows they were part of a group of young people who lived in or who had moved to Region A to access high performance coaching. The totality of the evidence gives the clear impression that the individuals in this group engaged in a range of social activities and some had relationships with each other. That context does not exclude exploitation, but it gives a different perspective to the nature of the interactions between the Applicant and Claimant 1.

97. The Tribunal is not satisfied that the evidence demonstrates the Applicant took advantage of or exploited Claimant 1. Regardless, the Tribunal does accept there was a power imbalance between the Applicant and Claimant 1 given their ages and experience. The Applicant’s sexual relationship with Claimant 1 was objectively inappropriate and unlawful pursuant to the laws of Region A. It is likely that the relationship was a negative experience for Claimant 1 and the Applicant was, and likely remains, insensitive to that fact.

98. The Arbitrator was unable to make findings in respect of the following allegations made by Claimant 1 and denied by the Applicant:

1. That the Applicant used physical force during intercourse, that his kissing and fondling of Claimant 1 was coercive, that he held her head and forced her onto his penis during oral sex, that sex was rough and that towards the end of their sexual relationship she said “no” many times and he held her down.

2. That the Applicant took Claimant 1 to a lawyer in August 2017 to sign an NDA (presumably a non-disclosure agreement).

99. Notably, the Arbitrator did not make findings these two allegations did not occur but was not satisfied of their truth on the balance of probabilities. Plainly Claimant 1’s allegations cannot be rejected as groundless and the Tribunal accepts that there is a possibility that the Applicant behaved that way.

100. The Arbitrator was unable to make any findings in respect of Claimant 2’s allegations:

1. That the Applicant engaged in non-consensual intercourse. The Arbitrator noted that the safety organisation did not pursue this allegation, Claimant 2 did not give evidence and the Applicant denied it. No particulars were included in the Arbitration Decision as to the nature of the alleged conduct by the Applicant.

2. That the Applicant kissed Claimant 2 without her consent at a party.

101. There is no evidence of the alleged non-consensual intercourse and having regard to the age of Claimant 2, the context of the alleged kiss and the fact that Claimant 2’s allegations were not tested in the arbitration proceedings, the Tribunal cannot place any weight upon those allegations.

102. The Arbitrator upheld the bans and no-contact orders imposed by the safety organisation.

103. In the Notice sent by the Children’s Guardian the Applicant in June 2024 advising of their intention to cancel his WWC Clearance it was suggested that the safety organisation decision had resulted in a termination of the Applicant’s employment as a coach in that country. It was conceded by the Children’s Guardian in their submissions that there was no evidence of the Applicant coaching Claimant 1. There is nothing in the Arbitration Decision which gives any basis to find that the Applicant held any position of authority in respect of either of the claimants. The Children’s Guardian properly withdrew their submission that the Applicant was Claimant 1’s teacher; the relevant statement in the Arbitration Decision is plainly a reference to Claimant 1 having learned about sexual intercourse from the Applicant.

101. At the time of the hearing, almost 12 months had passed since the Children’s Guardian imposed an interim bar and commenced assessing the Applicant’s suitability for a working with children check. Other than the Arbitration Decision, it appears no evidence has come to light in this period suggesting that the Applicant has been the subject of any other misconduct allegations, or that any other child or adult has ever made a complaint about the Applicant’s conduct towards them.

102. The Applicant has never been contacted by Police from any jurisdiction in relation to the allegations of the claimants. There is no evidence that the Applicant has any criminal record or is or has been the subject of allegations that he has engaged in criminal activity that might be relevant to the safety of children.

103. The Applicant has been coaching students between the age of 4 and 28 years in Australia since 2022. The Applicant produced letters from 26 people in support of his application; these included parents of students the Applicant coached, fellow coaches and professionals working in that sport and 2 teenage students coached by the Applicant. Some of the letters are in the nature of character references which hold limited relevance. Some of the letters demonstrate that the writer was aware of the safety organisation decision although it was not possible to know whether they were aware that Claimant 1 was below the age of legal consent at the time of her relationship with the Applicant or that it was alleged that the Applicant had sexually assaulted Claimant 1 and Claimant 2. That is a significant limitation with respect to the weight that can be given to this evidence (Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [47]). The primary relevance of the letters is that it demonstrates that the Applicant has a large amount of support from parents and students he coached; not only were no concerns raised about his interactions with children, most accounts described the Applicant engaging with children in a respectful and professional manner (including when he has accompanied children to international competitions as part of their coaching team). Of course, it goes without saying that only persons who are happy with the Applicant’s conduct are likely to give positive references and their existence does not preclude the existence of parents or students not feeling the same way. Of significance though, there is no evidence of any formal or informal complaints about the Applicant or his conduct arising from his coaching activities.

Consideration

107. The issue for the Tribunal is whether it is likely that the Applicant poses a real and appreciable risk to children such that the interim bar should be maintained to prevent the Applicant engaging in child related work (and the other matters in s 17(1) WWC Act) while the Children’s Guardian undertakes her assessment.

108. Counsel for the Children’s Guardian submitted that the Tribunal should find it is likely that the Applicant poses a real and appreciable risk to children. The Children’s Guardian relies heavily upon the Arbitration decision and findings and focuses particularly upon the objective seriousness of the Applicant’s conduct towards Claimant 1, his ongoing denial and lack of remorse and the age disparity and vulnerabilities of Claimant 1.

109. Counsel for the Applicant submitted that the Tribunal should find it is not likely that the Applicant poses a real and appreciable risk to children. Counsel points to the conduct falling at the lower end of the spectrum of seriousness, the context of their relationship, the length of time since the alleged conduct, the Applicant’s respected role in the sporting community, his lack of criminal history or other allegations relevant to posing a risk towards children. It was submitted the Applicant’s denial of the allegations makes it difficult to demonstrate insight now and points to other evidence of the Applicant showing insight into the emotional needs of the students he coaches.

110. The Tribunal’s consideration of the matters required by s 30(1) WWC Act is set out below.

(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,

111. The Applicant admitted to having sexual intercourse with Claimant 1 while she was 17 and under the legal age of consent in Region A. That is a strict criminal offence and is objectively a very serious matter. The subjective circumstances, however, lessen the seriousness of this conduct. This includes the fact that Claimant 1 was 17 years old, it was a somewhat similar age relationship, the differing ages of legal consent in this age group (Claimant 1 was over the age of legal consent in Region B where she was from and in Australia where the Applicant was from) and the Applicant was not a coach of Claimant 1.

112. The Applicant also admitted to giving the Applicant alcohol on one occasion when she was 17 years old, although the Arbitrator found that he did so on multiple occasions. Again, the supply of alcohol to a minor is a criminal offence in in Region A and an objectively serious matter. The context of this behaviour, whether it was once or multiple times, was a similar age friendship between the Applicant and Claimant 1 and, although alcohol was said to be supplied at the time of sexual and oral intercourse, according to the Arbitrator did not amount to grooming. That lessens the seriousness of the conduct for the purpose of considering the risk of harm posed by the Applicant to children.

113. The allegations made by both Claimant 1 and Claimant 2 that the Applicant engaged in sexual or indecent assaults, and Claimant 1’s allegations that the Applicant was physically and emotionally coercive are objectively extremely serious matters. It is relevant that these allegations are unproven and that, having regard to par 101 above regarding Claimant 2’s allegations, the Tribunal cannot find that the Applicant has engaged in a pattern of behaviour which involves serious boundary violations or abusive behaviour.

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

114. The alleged conduct took place between 2016 and 2017, now 8 to 9 years ago. The Tribunal places significant weight upon the fact that there have been no other allegations of this nature (or of any nature which poses a risk to children) either before or since these allegations.

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

115. At the time of the alleged conduct, the Applicant was between 21 and 22 years of age. It is very relevant that the alleged conduct took place in a setting where the Applicant and a group of other young people were all living away from home in Region A to access high performance coaching.

(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,

116. Claimant 1 was 16.5 years old at the time the Applicant was alleged to supply her with alcohol and was 17 years old at the time that she and the Applicant started having sexual and oral intercourse. The Tribunal has accepted that she was a young, socially immature and vulnerable girl.

117. Although the Tribunal has found the allegations made by Claimant 2 have limited relevance, for completeness, Claimant 2 was between 21 and 22 years old at the relevant time and there is no evidence supporting a finding that she had any particular vulnerability.

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

118. The difference in age between Claimant 1 and the Applicant was 4 years. This age difference has greater significance because Claimant 1 was 17 years old and the Tribunal has already found that there was a power differential between them because of the Applicant’s age and sexual experience. There was no age difference between Claimant 2 and the Applicant. There is no evidence to support a finding that the Applicant has a pattern of engaging in sexual interactions with others where there exists a power differential or significant age difference.

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

119. The Applicant knew Claimant 1 was a child.

(g) the person’s present age,

120. The Applicant is now almost 31 years of age. The Applicant has now been permanently living in Australia for several years. He no longer trains abroad and does not compete internationally.

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

121. The Applicant has no criminal history or other conduct which suggests that he poses a risk of harm to children.

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

122. If the Applicant, now a 31 year old man, were to engage in a sexual relationship with a teenage child (in Australia), provided they were over 16 years and not a student, that would not be unlawful. If the Applicant also supplied that teenage child with alcohol, that would be unlawful, and given the age difference, would raise the real possibility of grooming. Regardless of the supply of alcohol, there would likely be an enormous power imbalance (in favour of the Applicant) in many important aspects of their interactions including their sexual experience and ability to influence the other’s decision-making around sex and other intimate acts. This power imbalance would be exacerbated if the Applicant kept the relationship secret or supplied alcohol to the teenage child. In these circumstances there would be a real risk of the teenage child being unable or unwilling to communicate their needs and wants to the Applicant. Without other friends or trusted adults knowing about the relationship, there the teenage child could engage in sexual acts that they were not ready for, were uncomfortable with or did not want to do. This could potentially have long-lasting adverse emotional consequences for the teenage child.

123. The Tribunal finds, however, that the likelihood of the Applicant engaging in a secret relationship with and supplying alcohol to a teenage child now is low. The circumstances of the Applicant’s interactions with Claimant 1 were very specific in time and place and are never likely to be repeated. There is no evidence of any pattern of behaviour by the Applicant in engaging in relationships with another child, let alone another person where there is a significant power differential or who he is coaching.

124. If the Applicant were to physically and emotionally coerce another person, particularly a teenage child, to engage in sexual intercourse or sexual acts without their consent, the emotional consequences for that teenage child are likely to be severe and long-lasting. The Tribunal finds, however, that the likelihood of the Applicant engaging in this conduct is very low. It has not been established, even on the balance of probabilities, that the Applicant previously engaged in this conduct. There is no evidence of the Applicant otherwise engaging in criminal conduct, nor is there any evidence to find that the Applicant has a pattern of behaviour which involves exploitation, abuse of power or boundary violations over others.

(i1) any order of a court or tribunal that is in force in relation to the person,

125. There are no relevant orders in this matter.

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

126. The Tribunal has had regard to the information supplied by the Applicant to the Children’s Guardian and the evidence he has provided to the Tribunal. It is noted that the interim bar has been in place for almost 12 months without the Children’s Guardian determining to cancel the Applicant’s clearance.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

127. There does not appear to have been any information obtained in accordance with s 36A WWC Act.

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

128. The Tribunal has had regard to the s 58 material produced by the Children’s Guardian, save for the document referred to in pars 58 to 61 above.

129. The Tribunal is mindful that this jurisdiction is protective, not punitive; an applicant for a clearance might be entirely innocent of alleged conduct; yet be properly denied a clearance (or have an interim bar maintained) because the Tribunal finds that the evidence of risk of harm to children is too high (CXZ per Simpson AJA at [58]).

130. Having regard to the facts of the present case and the analysis above, the Tribunal is not satisfied that it is likely that the Applicant poses a real and appreciable risk to the safety of children. The Tribunal considers that the risk posed by the Applicant to the safety of children is overall very low. The Applicant’s objectively unlawful and inappropriate behaviour in having a sexual relationship with Claimant 1 in 2016-2017 and the possibility that the Applicant may have engaged in sexually abusive behaviour towards Claimant 1 must be balanced against the time that has passed, the particular factual context from which the allegations arise which are unlikely to be repeated, the evidence that the Applicant has been teaching children for a few years without complaint and the lack of any other evidence that the Applicant poses any risk to the safety of children. The evidence suggests that the level of risk presently posed by the Applicant is overall low; not much greater than the risk that any person poses to a child.

131. The Tribunal further finds, as required by s 30(1A) WWC Act, that a reasonable person would permit their child to have direct contact with the Applicant and it is in the public interest for the Applicant to have a clearance.

1. A reasonable person is likely to be concerned about the Applicant’s unlawful behaviour and the allegations of sexual assault made against him. However, the Tribunal considers that, armed with the facts, a parent would understand that the interactions between the Applicant and Claimant 1 relate to a specific time and place when both were young. They would understand the allegations of abusive behaviour are not proven and be reassured by the time has passed, the lack of any other evidence of relevant inappropriate conduct and the number of parents who are very happy with the Applicant’s coaching and interactions with their children.

2. In circumstances where the risk to the safety of children is low, there is a public interest in the Applicant being able to coach children as he was doing prior to the interim bar. The Applicant has enormous talent in his sport and there is significant benefit to individuals and the Australian community receive coaching from him. It is noted that the Children’s Guardian accepts that if the Applicant does not pose a risk, the public interest test would be satisfied by the Applicant.

132. For the above reasons, the Tribunal made an order to set aside the decision of the Children’s Guardian to impose an interim bar.

133. The Tribunal finds that it is desirable to continue the order prohibiting disclosure of the names of any person mentioned in these proceedings in order to protect the identity of an alleged victim. The Tribunal has also removed from this decision information concerning the Applicant which could lead to the identification of the victim.

Orders

1. The decision of the Children’s Guardian on 25 June 2024 to impose an interim bar on the Applicant pursuant to s 17(2) Child Protection (Working with Children) Act 2012 is set aside.

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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 - Para 106: Administrative formatting text removed.

17 November 2025 - Identifying information removed throughout the decision.

Decision last updated: 17 November 2025