GVC v Children's Guardian [2025] NSWCATAD 332;

(1) Documents filed 13 February 2025 pursuant to s 58 of the ADR Act;

(2) Further documents filed pursuant to s 58 of the ADR Act received 4 March 2025;

(3) Respondent's further evidence filed 28 April 2025;

(4) Respondent's further evidence filed 25 July 2025;

(5) Respondent's further evidence 10 October 2025 (filed 13 October 2025)

1. The Respondent also filed written submissions dated 10 October 2025 (also filed 13 October 2025)

1. In opening written submissions filed shortly before hearing, the applicant contended that:

(1) The Tribunal retained jurisdiction as the decision to refuse the WWCC Clearance pre-dated 1 July 2025;

(2) The applicant noted that the initiating event was the cancellation by TfNSW of the applicant's driving instructor licence "following an investigation into allegations of inappropriate physical contact with four 16 year old students during driving lessons in 2022", in the course of his business as the principal and owner of a driving school.

(3) The allegations particularised a range of matters but including touching the students' bare feet for extended periods and parking for long durations while doing so; as well as other allegations concerning physical contact;

(4) It was determined by the Children's Guardian that the applicant presented a continuing risk to children as a result of this behaviour;

(5) The applicant stated that "no formal finding ever characterised or described the conduct as sexual or sexually motivated";

(6) The applicant stressed that he had "ceased tactile instruction upon suspension and is committed never to use physical contact again in his teaching". He has also ceased driving instruction altogether since his licence was suspended.

(7) He stated that parents had been expressly advised that "sensory touch might be used for pedagogical purposes and were invited to decline it"

(8) The applicant had not undertaken further child-safety courses since suspension but contends that he has been "fully cooperative" with both the Children's Guardian and TfNSW.

(9) He has expressed regret for any discomfort caused and has insisted that he would include a "no touch policy" should he be permitted to continue to engage in driving instruction and has sought a quote for in vehicle video surveillance.

(10) Prior to establishing this business, the applicant was a serving police officer for 22 years (including in highway patrol and as a protective security driver).

(11) The submission set out the evidence of hardship to his family and referred to witness statements in support of the applicant;

(12) The submission also addressed the matters set out in s 30(1). Among other factors raised in relation to s 30(1)(a) (the nature, seriousness and circumstances of the conduct), the applicant submitted that the "analytical task is to distinguish boundary misjudgement from criminal sexual conduct. Section 29(3) speaks to safety risk, not moral reproach" (emphasis in original). It was also contended that while the conduct may be "highly unusual and inappropriate", that "does not, without more, establish an ongoing safety risk". Here it was contended, the conduct, "though unwise, is properly characterised as low-risk when contextualised".

(13) It was also contended that the passage of time without recurrence is "probative". It was further suggested that the fact that there had been no repetition (since the applicant had ceased driving instruction) "provides an objective record" indicative of eliminating "any reasonable prospect of recurrence".

(14) A repeated theme in the submissions was that the "touching alleged was non-sexual" and the reported discomfort occurred "within a disclosed instructional setting".

(15) A related submission was that there were "no criminal disciplinary or professional findings substantiating the alleged behaviour as child-risking".

(16) The applicant relied on his referees in relation to s 30(1A), that is, the question of whether a person would allow their child to be with the applicant unsupervised.

1. At the hearing, it was submitted on the applicant's behalf that the case depended on the Tribunal's assessment of the nature, character and content of the touching. His barrister also contended that he now accepted that including a tactile form of instruction was wrong and that he has now learned that this is not appropriate. He had initially thought that what he was doing was a proper way of teaching but had now realised that, from the point of view of those experiencing it, it left them open to vulnerability and it might be taken the wrong way, that is, it could make the person feel uncomfortable and should not happen.
2. He insisted that he would not use touch in his instruction practice in future. He had used the tactile method as he considered that it was instructive for students to feel the sensitivity of the pedals. He was also asked whether he would encourage students to drive barefoot and stated that he would do so.
3. He had assumed that by telling his students about his methods, that would allay the concerns.
4. He was asked about the fact that in one of his statements he had indicated that there was nothing written down that indicated that there was to be no touching in the course of instruction. His response was that he was responding to what he perceived to be an allegation of sexual touching.
5. On the applicant's behalf it was submitted that he had expressed regret for the discomfort of the complainants, and that when the applicant now says he will not touch any students in future, the Tribunal should accept that. It was accepted that his conduct was "unusual" but not coercive and thus did not give rise to any ongoing risk; there was no hint of "underlying sexual deviance". It was also conceded that he had taken no active steps to address the conduct by way, for example, of undertaking a child safety course and that there was nothing concrete he could point to to demonstrate that his conduct in the future will be different.
6. It was submitted that refusing him a clearance was a punitive outcome that was inconsistent with the Act's protective purpose. While his conduct was misguided, it was submitted that it was not dangerous, nor sexual. It was also conceded that there was no psychological evidence before the Tribunal that addressed the conduct in issue (the evidence concerned his unrelated police work caused PTSD).

1. The respondent made the following submissions, after setting out the procedural background and noting that the question for the Tribunal was whether, on the balance of probabilities, the applicant poses a risk to the safety of children.

(1) The respondent described the conduct that had led to the applicant's licence to be a driving instructor to be cancelled, and summarised the TfNSW allegations. The conduct was described as having involved "prolonged touching of the complainant's bare feet, poking and tickling the complainants, and other inappropriate behaviour".

(2) It was described as serious, child related and as having caused the complainants to feel uncomfortable and cease their contact with the applicant. It was also asserted that the applicant had said he would continue to touch students as part of his teaching practice if his licence were reinstated.

(3) Following the imposition of an Interim bar, a final decision to refuse the WWCC Clearance was notified to the applicant on 30 May 2025, pursuant to s 18(2) of the act on the basis that the respondent was satisfied that the applicant poses a risk to the safety of children. That decision was made on the basis of consideration of the factors set out in section 15(2).

(4) The respondent referred to written submissions filed by the applicant on 15 April 2025 in which he sought to explain the conduct, ie, that it was part of a structured and considered approach to driver education and that his physical contact was limited to hands, fingers, arms, legs or feet to show correct placement. He also indicated that he advised the students of his method and stated that he would agree to a no touch policy and eliminate the sensory component of his driving lessons if that were required.

(5) After setting out aspects of the legislative scheme the respondent addressed the approach to the assessment of risk established in the case law, some of which is discussed above, and then addressed the application of those matters to the facts of this case.

(6) In relation to section 30(1)(a), the respondent submitted the following:

(a) Similar allegations were made by 4 separate students, some of whom were children

(b) the incidents occurred when the students were alone with the applicant in a confined space

(c) The applicant was in a position of trust and authority over children who were accordingly vulnerable;

(d) The conduct involved the deliberate touching of children's bare feet, and their hands and legs which made the children feel uncomfortable. It was contended that this necessarily carried sexualized connotations, regardless of the applicant's asserted intent or motivation, and the conduct included inappropriate physical contact and comments towards adolescent students that was found by TfNSW to be neither appropriate nor necessary.

(e) The importance of appropriate boundaries when working with children was emphasised.

(7) The respondent addressed other parts of section 30(1), referring again to the applicant's explanation of his conduct and suggesting that he would seek written acknowledgement from parents and students of his touching techniques or if this was deemed to be unsatisfactory and he was required to apply a "no touch policy", he would do so. The respondent expressed scepticism at his more recent offer to eliminate the sensory component altogether, suggesting it was not driven by any freshly acquired insight or understanding but by a desire to return to work. It was also noted that the applicant had not taken any steps by way of remedial action such as undertaking a child protection course to demonstrate his understanding of child safety and the importance of appropriate boundaries.

(8) it was acknowledged that the applicant had no criminal history and that he had numerous references from a range of people. However, those references did not indicate that they were that the writers were privy to the particulars of the complaints against him. As for his psychological evidence, that appeared to be addressed to his historic PTSD and depression arising out of his former career as a police officer and there was no evidence of any treatment or therapy focused on the issues that are before the tribunal.

(9) It was further submitted, with respect to section 30(1A)(a), that a reasonable person acquainted with all the relevant facts would not allow his or her child to have direct unsupervised contact with the applicant if the applicant were engaged in child related work. This was said to be supported by the fact that the TfNSW allegations were made by a number of child complainants.

(10) As for the public interest it was submitted that while the tribunal should give some weight to the public interest in permitting the applicant to return to work as a driving instructor having regard to his skill and experience in this field, this was the very environment in which the conduct that had led to the decision before the tribunal had occurred. For that reason it was submitted that the public interest weighs against the applicant being granted a clearance.

1. In oral submissions, the respondent emphasised that there was no need to make a positive finding about whose version of events was accepted. Rather, as the High Court had indicated in M v M, the key question was whether there was a risk of harm to children. It was further submitted that if it were found that there had been protracted touching of the complainants, that was sufficient to establish a future risk of harm.
2. While the respondent acknowledged that in his evidence and submissions at the hearing, the applicant had shown insight into the impact of his behaviour, this was a new position which had not been previously demonstrated. On the contrary, the respondent submitted that much of the earlier material had drawn attention to the absence of legal rules about touching and appeared to challenge the fact that there was anything wrong with the conduct.
3. It was submitted that the insight he had evidenced was limited to the conduct in relation to which his licence had been cancelled and in order for the Tribunal to be persuaded that there was no future risk, the Tribunal would need to know more about his underlying change of attitude.
4. It was also contended that the referee reports should be given limited weight as they did not appear to address the issue before the Tribunal. If the referees were not aware of the detail of the specific allegations, they would not be able to provide any insight into the s30(1A) issue; ie, whether they would be comfortable with their children being with the applicant unsupervised.

1. The issue in this case is whether the correct and preferable decision is to refuse to grant the applicant a WWCC Clearance. That in turn depends upon whether the Tribunal concludes, on the balance of probabilities, that the applicant poses a risk to the safety of children.

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

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

1. The fact that the applicant does not have a criminal record means that there are no "offences" to consider, but the provision is not limited to convictions/offences. Rather, the decision maker (and the Tribunal standing in the shoes of the decision maker) can consider the matters that led to the decision under review.
2. The matters that caused the imposition of an interim bar, and ultimately, the refusal of the WWCC Clearance are those that led to the decision of TfNSW to cancel the applicant's licence to be a driving instructor. That in turn arose out of the fact that four separate young people had made complaints about the conduct of the applicant, particularly relating to the fact that being touched by the applicant on parts of their bodies had made them feel uncomfortable. Each of them indicated that they felt uncomfortable; had been touched either on their feet, fingers, hands and thighs. Students had been asked to remove shoes and socks and the applicant had touched and moved their bare feet on the pedals for a period of time. Each of the four had reported feeling uncomfortable due to the applicant's behaviour
3. As noted above, the applicant had submitted that the conduct was not sexually motivated, and contended that the fact it had not been the subject of any criminal charges ought to be taken into account. While it was submitted that the TfNSW "administrative action did not identify any criminal or disciplinary breach", TfNSW cancelled the applicant's licence to work as a driving instructor, a decision in relation to which an appeal was pending at the time of the hearing.
4. In light of the statutory question before the Tribunal, the Tribunal considers it unnecessary to make any finding about the motivation or otherwise of the conduct. Rather, it is the fact that vulnerable young people experienced the conduct as making them feel uncomfortable that indicates a risk of harm, a risk considered by TfNSW to warrant the removal of the applicant's licence to work as a driving instructor, both in relation to adults and children.
5. The Tribunal finds that the matters that gave rise to the decision under review give rise to the possibility of a risk of harm to children, demonstrated by the fact that a number of them had already made their discomfort with the applicant's driving instruction known to TfNSW. This is compounded by the fact that the applicant has shown little insight into the impact of his behaviour on others until the time of the hearing.

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

1. The applicant's licence was suspended and then cancelled some years ago and he has not been involved in instructing since then. As noted above, he now shows some insight into the fact that the complainants experienced harm by way of discomfort as a result of their interaction with him. However there is nothing in evidence other than the applicant's statement to the Tribunal that would demonstrate that insight and/or lead to a view that he does not present a risk to the safety of children. As noted above, there is no medical/psychological evidence addressing the behaviour and his understanding of it, nor has he engaged in any educational activities such as a child protection course.

(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 and

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

1. At the time the incidents that were the subject of complaints occurred, the applicant was a man of middle age; while three of the complainants were either 16 or 17. That is a significant age disparity and combined with the nature of the relationship (instructor/learner), and in circumstances where the learning takes place in a car (a small enclosed space); would be readily understood to put the learner driver in a very vulnerable position.

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

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

1. The applicant was born in 1971 and is therefore now 54 years of age

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

1. The applicant has no criminal history; thus this aspect is not relevant. As for conduct since the matters occurred, the Tribunal repeats what is stated above under factor (b), ie, that there is no independent evidence of the applicant's engagement with the issues (such as undertaking courses or seeking psychological counselling). There has been no repeat of the conduct but that may be simply attributable to the fact that the applicant's licence to work as a driving instructor was suspended/cancelled after an investigation by TfNSW.

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

1. As noted above, the Tribunal has only the applicant's own evidence of his insight to rely on in relation to the likelihood of future conduct. The applicant has offered to give an undertaking not to repeat his tactile teaching method and has provided a quotation for the cost of installation of video surveillance in his car. The Tribunal remains concerned at the absence of any independent evidence other than that of the applicant as to the gaining of insight into how his conduct affected his students and the discomfort it caused them, and could again cause, should the conduct be repeated in future.

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

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

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

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

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

1. The Tribunal considers that all relevant matters have been addressed as relevant in relation to the other factors above.
2. On the basis of the matters set out above, and in view of the protective nature of the exercise and the approach set out by the authorities that requires erring on the side of caution, the Tribunal finds that the applicant poses a risk to the safety of children, a finding supported by the various complaints received by TfNSW, and the absence of any independent evidence of action taken or insight gained since those events.
3. Even if, contrary to the finding above, the Tribunal had found that the applicant does not pose a risk to the safety of children, there is a further requirement set out in s 30(1A) which must be applied:

(**1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - **

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

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

1. In relation to s 30(1A)(a), the applicant has provided considerable evidence in the form of character references attesting to his involvement in organisations, including sporting teams, involving children. However, as the respondent has pointed out, none of the references addresses the incidents that led to the decision under review. It has been held that in applying s 30(1A)(a), "the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware including all the evidence and submissions placed before the Tribunal": see GHM v Children's Guardian [2025] NSWCATAD 98 at [88], referring to CHB v Children's Guardian [2016] NSWCATAD 214 at [127] and CSW v Children's Guardian [2017] NSWCATAD 326 at [136]. That is clearly not the case here. On the contrary, a reasonable person, being fully aware of the matters that are the subject of the primary decision, would likely not permit their child to have unsupervised contact with the applicant, at least in the absence of any further information that would assure them that the conduct that occurred would not be repeated and that the applicant has insight into the nature of the harm it caused.
2. In the context of the consideration of s 30(1A)(b), the Tribunal in CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 said at [75]:

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

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

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

The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

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

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

1. The Tribunal, in applying the public interest test, must do so by reference to the particular statutory framework and thus have regard to the subject matter, scope, and purpose of the Act. In particular it is necessary to consider the object (s 3), which is to protect children, and the paramount consideration (s 4) which is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse". That requires a consideration that errs on the side of caution.
2. The respondent has acknowledged the public interest in having someone with the skills and expertise of the applicant able to return to driving instructing. However, it also pointed out that it was in that particular context that the conduct the subject of these proceedings occurred.
3. In a context where the statutory objects (the protection of children) and paramount consideration focus on the safety and well being of children, it is, as noted above in relation to s 30(1A)(b), appropriate for the Tribunal to err on the side of caution in relation to this factor also.
4. It may be that the applicant succeeds in his appeal seeking to have set aside the decision to cancel his driving instructor licence. Even if that were the case, the matter before this tribunal involves the grant or refusal of a WWCC Clearance. The Tribunal considers that it would be too great a risk to rely solely on the applicant's assertion (not supported by any expert evidence of evidence of having engage in professional counselling or learning) that he now understands that the behaviour he engaged in was wrong and that it will not be repeated.

1. 1 The decision of the Children's Guardian, dated 30 May 2025, to refuse to grant the applicant a Working With Children Check Clearance is affirmed
2. 2 The disclosure by way of publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
3. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

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.