BQU v Children's Guardian

[2015] NSWCATAD 121

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BQU v Children’s Guardian [2015] NSWCATAD 121
Hearing dates:	2 April 2015
Decision date:	16 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	The decision under review is affirmed
Catchwords:	ADMINISTRATIVE LAW – review of decision of Children’s Guardian – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working With Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BLU v Children’s Guardian [2015] NSWCATAD 41 Commission for Children and Young People v V [2002] NSWSC 949 M v M [1988] HCA 68; (1988) 166 CLR 69
Category:	Principal judgment
Parties:	BQU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: H Packer (Applicant) G Mahony (Respondent)   Solicitors: BQU (Applicant in person) Crown Solicitor (Respondent)
File Number(s):	1510021
Publication restriction:	The publication or disclosure of the name of, and any information that will, or is likely to, identify the applicant or the victims: s 64 of the Civil and Administrative Tribunal Act 2013 (NSW)

Judgment

1. The applicant is a high school teacher in his early fifties. In December 2014 he was notified by the Children’s Guardian of the decision made under the Child Protection (Working with Children) Act 2012 (NSW) (the Act), to refuse to grant him a “working with children check clearance”. That decision was made following a “risk assessment” undertaken by the Children’s Guardian after becoming aware of an “assessment trigger”, namely a report of sexual misconduct, specifically “grooming of a child”, made in 2007 to the Commission for Young for Children and Young People (CCYP). As a consequence of that decision it is unlawful for the applicant to continue to work as a school teacher.

2. The applicant applies to the Civil and Administrative Tribunal of New South Wales (NCAT) for review of the decision made by the Children’s Guardian to refuse to grant him a working with children check clearance (the decision under review). In determining that application, I must decide what is the “correct and preferable decision” having regard to the material before me, including any relevant factual material and applicable written or unwritten law (s 63(1) of the Administrative Decisions Review Act 1997 (NSW)).

3. Orders have been made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the name of, or any information that will, or is likely to, identify the applicant or the victims of his offending conduct. In these reasons for decision, the applicant will be referred to by the pseudonym “BQU”.

Statutory scheme

4. The object of the Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances (s 3). Section 4 of the Act provides that 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. “Children” are defined as persons under the age of 18 (s 5).

5. The Act makes it unlawful for a person to engage in “child-related work”, unless they hold a “working with children check clearance of a class applicable to the work” or a current application has been made by the worker to the Children’s Guardian for a clearance (s 8(1)). “Child-related work” is defined to include work in schools that involves “direct contact” with children (ss 6(1), (2)(g) of the Act; r. 10 of the Child Protection (Working With Children) Regulation 2013 (NSW)).

6. Part 3 of the Act deals with the granting and refusal of clearances. A person may apply to the Children’s Guardian for a working with children check clearance (s 13(1)). If the Children’s Guardian becomes aware that the applicant is subject to an “assessment requirement”, the Children’s Guardian must conduct a risk assessment to determine whether the applicant poses a risk to the safety of children (s 15(1)). A person who is the subject of a finding by a “reporting body” that they have engaged in sexual misconduct committed against, with or in the presence of a child, including the grooming of a child, is subject to an "assessment requirement" (cl. 2(a) of Schedule 1 to the Act). A reporting body is defined to include an employer or professional or other body that supervises the conduct of an employee (s 35(4)).

7. Section 15(4) provides that in making a risk assessment the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

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

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

8. Section 18 states:

18 Determination of applications for clearances

…

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

9. A person who has been refused a working with children check clearance is generally not entitled to make a further application for a clearance until five years after being given notice of the refusal (s 21(1)).

10. A person who has been refused a working with children check clearance by the Children’s Guardian may apply to NCAT for an administrative review under the Administrative Decisions Review Act (s 27(1)).

11. Part 4 of the Act deals with reviews and appeals. An applicant must fully disclose to the Tribunal any matters relevant to the application (s 27(4)). Section 30 prescribes the matters that NCAT must consider in determining an application for review of a decision made by the Children’s Guardian to refuse to grant a working with children clearance. Those matters mirror those listed, in s 15 of the Act, that the Children’s Guardian may consider in conducting a risk assessment:

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 total criminal record and the conduct of the person since the offences occurred,

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

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

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

12. The Act creates a presumption that a “disqualified person” — broadly, a person convicted of, or charged with a prescribed offence — “poses a risk to the safety of children” (s 28(7)). No such presumption is created in respect of a person, such as the applicant, who is not a disqualified person.

13. It is settled that the word “risk” in the Act should be construed to mean a risk that is “real and appreciable”. In BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following explanation given by Young CJ in Eq. in Commission for Children and Young People v V [2002] NSWSC 949 at [42] concerning the word “risk” in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW):

What one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of the children’.

Employment history

14. In 1985 the applicant started work as a teacher after graduating from university with degrees in economics and education. Apart from the period May 2005 to March 2008 he has worked continuously as a secondary school teacher in girls or coeducational schools, until notified in December 2014 that he had been refused a working with children clearance. In three of the schools the applicant has been employed, he has been the subject of allegations of inappropriate conduct involving children. Only those allegations relating to the school where the applicant was employed between 2000 and 2005 have been investigated and found proven. For convenience the applicant’s employment history is detailed below.

Period of employment	School	Relevant allegations
1985 - 1986	School 1	Yes. Not investigated. No findings made.
1988 - 1999	School 2	No
2000 - May 2005	the College	Yes. Two findings of reportable conduct
March 2008 -Term 4 2011	School 3	No
Term 4 2011 - December 2013	School 4	No
Semester 1 2014	School 5	No
Semester 2 2014	School 6	Yes(2). Not substantiated (1). Neither investigated nor substituted (1).

The 2005 allegations

15. The trigger for the “risk assessment” conducted by the Children’s Guardian was conduct which occurred while the applicant was employed at a Catholic secondary school for girls (the College). In early 2005, the Catholic Schools Office (the Office) commenced an investigation following a complaint made by a parent about text messages sent by the applicant to her (then) Year 11 daughter (Student A). The applicant was stood down from his position in August 2005 and resigned from the College in May 2007. In May 2007 the Office made a “Category 1 notification” to the CCYP.

16. The Office found proven 22 allegations of professional misconduct and two allegations of “grooming”. In respect of the former the Office found:

sent inappropriate text messages to xxx and xxx on 9 May 2005

2.   volunteered your mobile telephone number to students for personal purposes

3.   failed to discourage students from contacting you on your mobile telephone number out-of-school hours

4.   stated that you had a policy of not offering lifts to students, whereas the evidence indicates that you did offer lifts in your taxi to a small number of students

5.   did not 'persistently discourage' other students from requesting lifts as you have asserted

6.   talked In class about offering and giving lifts in your taxi (your assertion that asking one student to tell the class that you 'drive like a grandma' was intended to discourage them for asking for lifts is not accepted as credible)

7.   gave lifts to students at cheap rates or for no fare at all

8.   breached the privacy of students by obtaining and using personal information (such as addresses and mobile phone numbers of students) for purposes un-related to the 'primary purpose of education

9.   persistently asked some students for their personal email addresses

10.   set up and maintained, without proper authority, a personal email address [xxx]' which you gave to students for school purposes (business classes) but also used for ongoing and inappropriate contact with former students

11.   singled out particular girls for special attention including sending personal cards and offering to assist particular students during holiday period, such offers not being made generally to all students

12.   sused overly familiar greetings with students including 'babe’ and 'sexi babe'

13.   shared personal information with students

14.   wrote knowingly misleading references for students contrary to College policy

15.   instructed a student to use her reference even though she advised you that it contained errors

16.   on references written in 2003 and 2004 fraudulently misrepresented your qualifications by including a 'Masters in Education'; on your own evidence you were not awarded with this degree until October 2005

17.   allowed students to smoke in the drama space in contravention of College rules

18.   allowed students to use their mobile phones and foods in class in contravention of College rules

19.   gossiped with students including making derogatory remarks about other members of staff

20.   involved students from the Year 12, 2005 business class in 'secret’ hints regarding the trial exams knowing that to do so was in contravention of proper teaching practice;

21.   marked students on the College roll as being present even if late or absent

22.   treated students as 'friends' and did not maintain appropriate professional boundaries particularly in your persistent use of 'text speak' with students.

17. The grooming allegations involved a series of text messages and emails sent by the applicant to two students. The Office found:

1. Between April and May 2005, the applicant sent a series of “inappropriate and sexually suggestive” text messages to Student A. These included a series of text messages sent over the evening of 17 May 2005:

(9:16pm)   Hey hi [Student A]l, how r u goin m8? Hope ur day@tafe was k n ur stayn kool, takrcare n lofealuv- P

(9:22pm)   Say wot m8? Only heard about complaint bout [teacher] which I will cause some shite 2moz m8, what exactly is pisn u off apart from my hairstyle babe?

(9:36pm)   No probs [Student A], will do, as u know I was wit neza last yr n wil be bak there when ur in 12 k, im absolutely sure she holds you in very high esteem ok, [Student A], 1 juz wish 1 had you dis yr m8 cos ur so kool m8! Yeh [xxx] n [xxx] biz class in kool but ufha 1 is unco, het [Student A], sorri 2 hear ur fired m8 afta last wk, so wot mischief did my m8 [Student A] get up 2 last wk....???...!!!..fast cars n fast boyz yeh [Student A]?..

(9:50pm)   Well, well well [Student A] im juz hassling u m8! Its all good n 1 didn't hear ne goss k - babe, juz know us so kool n ab fab so lotsa guyz must be queing up rite? So does [Student A] get into meditation n stress relief aromatherapy n remedial massage to relieve all da skooi shite babe?

(10:02pm)   Fastguriz [Student A]?, yeh I wish m8, good 2 hear u do ur smoko, 1 gave ht up n im into giving n RECEIVING long, sensous sexy, stress relieving sessions wit incense, r u up 4 it m8? It juz makes my day n floats my boat, [Student A], take care n lotsaluv – P

(10:13pm)   Nah, its all good n im a m8 of urs k [Student A], will definitely stay in my m8 Nezas in crowd, she spewed when 1 was dragged to yr 8 kiddyviiie cos she knows im da pastoral care bomb, good nite [Student A], happy dreams n lotsaluv, ur da bomb, R - P

2. Between December 2004 and March 2005, the applicant sent emails to Student B referring to her as “sexi babe” and requesting that they meet up. The messages included: “which college are you going to [Student B] Hey I know you will be really busy studying but it would be really Kool to catch up with u sumtime after classes K”?

18. In addition the Office found that the applicant:

sent emails to Student C while she was still at school and sent text messages to her after she left school, asking to “meet up”. While at school the applicant singled out Student C for “special attention” and offers of assistance not made to other student in his class

sent text messages to Student D after she left school in 2003 when in Year 11, stating he was “trying to stay in touch”, “suggesting meeting for coffee” and inviting her to call whenever she wanted. The messages were signed “lotsaluv”.

19. Initially the Office considered that the conduct relating to Students C and D constituted “grooming” but revised its opinion after receiving submissions made by the applicant and his representative (see letter from the Office to the applicant dated 21 May 2007.)

20. For convenience I will refer to the allegations regarding the applicant’s conduct at the College as the “2005 allegations”, even though, as the evidence reveals, the “boundary violation” conduct which is the subject of many of the professional misconduct findings, occurred throughout 2003 to mid-2005.

Response to allegations

21. At the invitation of the Office through the Independent Education Union, the applicant responded to the preliminary findings made by the Office. In a covering letter dated 20 April 2007 attaching the applicant’s responses to the allegations the Union wrote:

I draw your attention to the fact that although [the applicant] denies much of the detail of the allegations, he admits to being unprofessional in some of the ways alleged. He also provides some context particular to the time which helps explain his conduct. More to the point, [the applicant] has come to -understand the inappropriateness of his actions, he regrets what he has done, and he is determined they will not be repeated; indeed, he is currently seeking assistance in dealing with these issues.

22. In his response to the allegations in respect of Student A, the applicant:

admitted sending text messages but claimed he principally did so to reply to those received from Student A

denied encouraging Student A to send him messages and stated that the reason he replied to her messages was to assist her to deal with “school concerns and difficulties that she was experiencing”

explained that when he sent the text — “I’m tryin 2 muscle in to being allowed to go to yr 11 retreat…., I reely wanna hang out wit u n ur m8s k babe” — that he was drunk and “shattered” because he had been excluded from the retreat

accepted the text messages sent to Student A were inappropriate but wrote there was no “improper intent beyond my attempt to assist [her]”. He stated “I was trying to build rapport by speaking with students in their own language”. He also pointed out that the messages were intermittent limited to a period of four weeks.

1986 allegations

23. The investigation report dated 20 April 2007 noted that the principal of the School  1 recorded in a file note complaints made by students about the applicant’s “overfamiliarity” for example, “talking about his love life”, asking students about their experiences of puberty, name calling, bad language and name calling. Those allegations have never been investigated.

24. The applicant strenuously denied these allegations and testified he first became aware of them in these proceedings when provided with a copy of the 20 April 2007 investigation report.

2014 allegations

25. In the second half of 2014 the applicant was employed at School 6 in a maternity leave position. In answer to a request for information made by the Children’s Guardian under s 31 of the Act, the School’s deputy principal advised that a student made a complaint that the applicant said to her:

Don’t become a stripper

Don’t catch the [xxx] bus because it goes by my house.

26. After investigating those complaints, the deputy principal made a file note recording the applicant’s explanation:

The stripper comment was in made in response to a comment made by the student in class: “Everyone thinks I’m a tart and will just be a stripper”.

The bus comment was made to a group of girls. It was a casual comment of no import made in response to student “chat”.

27. The deputy principal advised the Children’s Guardian that he had interviewed two students who verified the applicant’s version of events. The deputy principal concluded that the incident did not constitute misconduct and therefore it was necessary to report the incident. The Children’s Guardian only became aware of the conduct in answer to the request for information made under s 31 of the Act.

28. The deputy principal subsequently notified the Children’s Guardian that in February 2015 a student disclosed she had been asked to “friend” the applicant on Instagram. The school did not investigate that complaint. In these proceedings the applicant admitted using Instagram but denied asking any student to “befriend” him. He testified that it was his understanding that Instagram users could elect to “follow” other Instagram users, and did not need an invitation to do so.

Expert evidence

Dr John Baron’s opinion

29. At his request, the applicant was assessed by clinical psychologist, Dr John Baron. Dr Baron prepared a report dated 24 August 2014 and also gave oral evidence.

30. In his report Dr Baron recorded being told by the applicant:

he developed a pattern of “problematic alcohol consumption” during his later years at the College

this corresponded with the applicant experiencing “ongoing and unresolved problems” with a senior member of staff

throughout this period he was “internalising his stress” and developed a pattern of dropping into a bar on the way home after university: “I was drinking to numb out”

this pattern escalated during March to May 2015 and was accompanied by general feelings of sadness, hopelessness and emotional loneliness

during this period he also put on a great deal of weight

31. Dr Baron recorded that after being notified of the 2005 allegations, the applicant engaged in psychological counselling together with complementary therapies, including remedial massage. In addition, he made a number of “lifestyle changes” to address the problems which “predisposed him to inappropriate alcohol use”. These included moderating his consumption of alcohol, embracing a healthy and balanced lifestyle, and renewing contact with a wide variety of friends.

32. Dr Baron wrote that the applicant is now conscious of the need to observe “strict professional boundaries with individual students”. Dr Baron wrote that the applicant told him he no longer has any social media contact with students and any contact was in “line-of-sight”.

33. In assessing the applicant, Dr Baron employed three psychometric tests which in his opinion are “well-validated and well researched”:

NEO Personality Inventory

Millon Clinical Multiaxial Inventory - lII

Personality Assessment Inventory (PAI)

34. Dr Baron wrote that the results of all three tests were “highly consistent” and indicated a generally well-adjusted person, with no indications of either personality pathology or clinical disorder. He wrote that a comparison of the results of these assessments with those undertaken by psychologist, Mr Gerard Webster, indicated that the applicant had undergone “substantial personal changes” in 2007.

35. Employing the NEO Personality inventory-3 Dr Baron identified “potential risk factors” in areas that warrant vigilance in the applicant’s professional and personal life:

inability to set limits

indiscriminate disclosure of personal secrets, insecurities, and vulnerabilities

tendency to be overwhelmed in the face of pain and suffering of others

tendency to be gullible, "green," "dewy-eyed," or naive

lack of appropriate concern for potential problems in health or social adjustment

failure to take appropriate precautions or obtain necessary support or assistance

social isolation, interpersonal detachment, and lack of support networks.

social inhibition and shyness

inappropriate, problematic, or harmful attachments to others

excessive expression of affection in situations in which more formal or neutral behaviour is appropriate.

emotional intrusiveness; failure to respect others' personal boundaries

sexually seductive or provocative behaviour

36. In Dr Baron’s opinion those “potentially relevant” risk factors (specifically, those involved in the applicant’s previous inappropriate conduct) did not raise any concerns about the applicant’s current suitability for child-related employment. He wrote that the results on testing reveal that the applicant has gained insight into his previous conduct, has implemented good risk-management strategies and has strengthened his range of protective factors.

37. Dr Baron wrote that he, like Mr Webster, had some misgivings about the Office’s characterisation of the conduct involving Students A and B as “grooming” but acknowledged that some of the conduct, in particular some of the text messages sent to Student A, afforded that interpretation.

38. Dr Baron concluded that the applicant is fit to be granted a working with children clearance.

Oral evidence

39. In cross-examination Dr Baron agreed with the proposition that if the applicant were to neglect his “self-care”, his potential risk factors could constitute on-going risk factors. In his opinion those factors were not predictive of future risk but were better described as “potential vulnerabilities”.

40. When questioned about the text messages sent to Student A, Dr Baron said there was “no doubt” they had strong sexual overtones and indicated a serious blurring of boundaries. In his opinion, the text message sent to Student A on 17 May at 10.02pm represented a clear blurring of boundaries and indicated the applicant was “sounding out” the student. In his opinion this indicated a significant risk that the messaging could have progressed to some form of sexual conduct.

41. Dr Baron said that the applicant became “visibly upset” when he questioned him about those text messages and characterised his reaction as one of “disgust and abhorrence”. In his opinion, it was “highly relevant” that there was no evidence to indicate that the applicant held attitudes condoning or justifying the conduct. According to Dr Baron such attitudes constitute a “key risk factor”.

42. Dr Baron said that like Mr Webster he placed little weight on the applicant’s claim that he did not intend the messages sent students to progress to sexual conduct, given it is unlikely that a person in the applicant’s position would make such an admission.

43. He said he would not expect the risk factors identified by Mr Webster — depression and immaturity — to be mitigated without therapy and other forms of intervention. When taken to the evidence that after being assessed by Mr Webster the applicant participated in only five sessions with a clinical psychologist (three in 2011 and two in 2013), Dr Baron said this usually would be inadequate, pointing out that the “guidelines” recommend between 10 and 20 sessions. He said it was relevant however that the applicant had undertaken a number of professional development courses and taken steps to improve his quality of life. In re-examination he said that the applicant’s failure to participate in the recommended number of sessions was not determinative and pointed out that a sustained exercise program together with other self-directed “treatments” is often equally effective in the treatment of depression.

Mr Webster’s opinion

44. Mr Webster prepared a report dated 2 July 2007 after assessing the applicant. It was not tendered in these proceedings. The parties advised they were unable to locate a copy. Dr Baron had read the report for the purpose of assessing the applicant. The following is taken from his summary of that report.

45. Mr Webster concluded that the results of the MMPI-2 [Millon Clinical Multiaxial Inventory] test revealed that despite a tendency to deny problems and not to be very introspective, “no clinical diagnosis is called for”. He noted however that the assessment on one of the tests he employed suggested that the applicant suffered an endogenous depression “very suggestive of major affect or dysthymic disorder”.

46. In Mr Webster’s opinion:

[The applicant h]as a range of psychological issues that have led to inappropriate behaviours with students. It is very likely he is depressed and has been for many years. It is believed his over familiarity with female students which was perhaps most transparent in the inappropriate text messages he sent them, signified extreme immaturity on his part – where he was using his position as a teacher to form emotional connection with others in an attempt to find satisfaction for his own unmet needs.

47. In his opinion, the applicant’s “unprofessional actions” represented gross emotional immaturity and indicated he was trying to endear himself inappropriately, in order to meet “his own emotional needs for connectedness”:

Apart from transparently awkward attempts to mimic adolescent jargon in text messages, I do not consider there to be sufficient evidence to warrant definition of the behaviours as grooming from a forensic psychological perspective.

48. Mr Webster concluded that the applicant “may benefit from a course of intensive psychotherapy to address issues of immaturity”.

Applicant’s evidence

49. In a statement dated 28 August 2014 submitted to the Children’s Guardian, the applicant wrote that he “fully acknowledges my poor professional judgment relating to boundary violations with some female students” at the College. He accepted that the conduct was inappropriate. He stated that 2005 had been a very difficult period during which he was experiencing many challenges in both his professional and personal life: he became depressed and resentful after being overlooked for promotion; was abusing alcohol and was very overweight; had a poor body image and failed to maintain a sensible work/life balance.

50. The applicant wrote that while he acknowledges the inappropriateness of his conduct he never intended to establish an improper relationship with a student.

51. He claimed he has matured and made major life changes since 2005. He claimed he now exercises regularly, has mature and stable relationships with adult friends and has “engaged in extensive therapy and counselling to address areas of my life that left me vulnerable to past errors of poor judgement in my teaching life”. He wrote that he now enjoys improved professional relationships, has achieved a better “work life balance” and no longer attends the workplace seven days a week.

Oral evidence

52. When questioned about the apparent implausibility of his claim of drinking heavily between 2001 and 2005 and at the same time working full-time, completing a masters’ degree in education and driving taxis, the applicant agreed that he did not drink every night. He insisted however that he was drinking heavily, especially on Friday nights.

53. In relation to the finding made by the Office that he volunteered his mobile phone number to students, while he admitted giving his number to Student A but said he could not recall giving it to other students.

54. In respect of the findings about offering taxi rides to students he said from time to time students would “hassle” him for free taxi rides. He conceded that he offered free rides to Student A and on a couple of occasions to a small number of other students.

Section 30 factors

The seriousness of the matters that caused a refusal of the clearance (s 30(1)(a))

55. The parties agree that, of the conduct found proven by the Office, that involving Students A and B was the most serious. They disagree however about its proper characterisation. Counsel for the applicant, Mr Packer, submits that, while inappropriate, the conduct fell at the lowest end of the spectrum of the type of conduct that would cause a person to be subjected to a working with children assessment.

56. Mr Packer contends that from Day 1 there has been a live issue about whether the conduct involving Students A and B constituted “grooming”. Pointing to the definition of “grooming” contained in guidelines produced by the Children’s Guardian, Reporting certain misconduct involving children (April 2014):

‘[B]ehaviour should only be seen as “grooming” where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and that there is no other reasonable explanation for it (emphasis added).

Mr Packer submits that the applicant has proffered a reasonable explanation for his conduct that is inconsistent with a finding of grooming: emotional immaturity, alcohol abuse and unmet emotional needs. He points out that both Dr Baron and Mr Webster expressed concerns about characterising the conduct as being sexually motivated. He urges me to adopt the approach taken in BLU v Children’s Guardian [2015] NSWCATAD 41, where the Tribunal (differently constituted) accepted at [94] that there was a reasonable explanation for BLU’s behaviour that was inconsistent with grooming the child for sexual activity.

57. Counsel for the Children’s Guardian Ms Mahoney submits that the conduct was significant pointing to the overtly sexual nature of the emails sent to Student A, especially those sent on the evening of 17 May 2005. Ms Mahoney contends that read as a whole, the messages sent over the course of that evening plainly constituted an invitation to Student A to engage in sexual activity. She argues that the evidence reveals a course of conduct with heavy sexual overtones which escalated over time.

58. Some of the messages sent by the applicant to students could be characterised as gross immaturity or, as described by Mr Webster, “transparently awkward attempts to mimic adolescent jargon”. However, that involving Students A and B was plainly of a different character. Over a four-month period the applicant repeatedly sent Student B messages urging her to meet up with him and calling her “sexy babe”. The conduct involving Student A was even more sexually overt.

59. While the conduct did not progress to physical or sexual contact and was not at the high end of the scale in terms of seriousness, that involving Students A and B was nonetheless serious. It was repeated, it continued over a period of some months and it was overtly sexual.

The period of time since those matters occurred and the conduct of the person since they occurred (s 30(1)(b))

60. Over ten years have elapsed since the conduct which triggered the investigation undertaken by the Office occurred. Since that time the applicant has taught in four different schools for a period totalling about six (school) years. Apart from the allegations relating to the School 6, there is no evidence to contradict his claim that the offending conduct was not repeated. That claim is consistent with the information given to the Commission by the deputy principal of School 3 (where the applicant taught between March 2008 and late 2011), the principal of School 4 (where the applicant taught between late 2011 and late 2013) and the principal of School 5 where the applicant taught in the first half of 2014. It is also consistent with character references provided by former colleagues. The principal and colleagues of School 4 attested that they had worked closely with the applicant and saw no evidence of the applicant acting in an inappropriate manner with children. They were well placed to observe the applicant given that it was a four teacher school.

61. The allegations relating to School 6 are significant to the assessment of whether there has been a repeat of the offending conduct over the past ten years. The deputy principal of the school accepted the applicant’s benign characterisation of his comments after investigating the stripper and bus comments complaint. No disciplinary action was taken and the applicant continued to teach for the remaining five weeks of the school year without incident.

62. More concerning is the Instagram allegation given the applicant’s history of inappropriate use of social media to initiate and maintain contact with students. Counsel for the Children’s Guardian concedes that, on the available evidence, I could not make a positive finding about that allegation but contends it is nonetheless relevant to the assessment of risk, citing in support M v M [1988] HCA 68; (1988) 166 CLR 69.

Age of the applicant and the victims at the time the matters occurred and the differences in ages the applicant and the victims (ss 30(1)(c),(d),(e))

63. The conduct found proven relating to Students A and B occurred between late 2004 and May 2005. At that time the applicant was in his early 40s (he was 44 years of age in January 2005). The students were 16 or 17 years of age. The age difference between them and the applicant was 26 to 27 years. Apart from their minority there is no nothing to suggest they suffered any relevant vulnerability.

Whether the applicant knew each victim was a child (s 30(1)(f))

64. The applicant concedes that at all times he was aware of the ages of the victims.

The applicant’s present age (s 30(1)(g))

65. The applicant is 53 years of age.

The seriousness of the applicant’s total criminal record and the applicant since the offending conduct occurred (s 30(1)(h))

66. The applicant does not have a criminal record. His claim that his conduct since mid-2005 has been exemplary and did not involve any inappropriate conduct with children is supported by character references provided by colleagues and supervisors to the Guardian, and is uncontradicted. On the available evidence I could not be satisfied that as alleged the applcinat had invited a student to follow him on Instagram.

The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition (s 30(1)(i))

Likelihood of repetition

67. The parties disagree on the likelihood that the conduct will be repeated. Mr Packer argues that there is no appreciable risk of the conduct being repeated citing in support the opinion of Dr Baron. Ms Mahoney on the other hand contends that the risk is real. She asserts that even to this day the applicant seeks to minimise his conduct. Ms Mahoney contends that the applicant’s testimony indicates that he is reluctant to admit to the offending conduct unless confronted with clear documentary evidence. She contends this is consistent with his reaction when initially presented with the allegations and sought to portray his conduct as an attempt to develop rapport with students and denied providing his contact details to, or initiating contact with, students.

68. In addition, she submits that even on his own case the risk of the applicant reoffending turns on his ability to continue to implement the risk management strategies he has developed.

69. I will return to consider the question of the likelihood of the offending conduct being repeated.

The impact on children of any such repetition (s  30(1)(i))

70. There can be no argument that if the offending conduct were repeated any child victim would probably suffer harm. The impact on individual children is likely to vary. Some would be traumatised and deeply upset; others might shrug off the conduct and see it as pathetic. Even if assumed that the conduct did not lead to anything more sinister, as Dr Baron pointed out it might have a “normalising effect” and result in students being more vulnerable to future approaches from predatory adults.

Any information given by the applicant in or in relation to the application (s 30(1)(j))

71. Mr Packer points to the evidence given by the applicant of the substantial changes he has undergone since 2005 and the risk management strategies he has implemented throughout that period. He points to the references provided by employers and colleagues which support his self-report about those strategies, and to his claim that he has not acted in an inappropriate way since 2005.

Any other matters that the Children’s Guardian considers necessary (s 30(1)(k))

72. None raised.

Does the applicant pose a risk to the safety of children?

73. In arriving at the correct and preferable decision, the key issue to be decided is whether the applicant now poses a risk to the safety of children. In answering that question I must have regard to the matters listed in s 30 of the Act together with any other relevant matters. That assessment must be made having regard to the paramount consideration of the Act: the safety, welfare and well-being of children and, in particular, protecting them from child abuse. Unless satisfied that the applicant poses a risk to the safety of children, the decision under review must be set aside.

74. The assessment of whether the applicant poses a real and appreciable risk to the safety of children involves having regard to both the probability of reoffending and the nature of the apprehended conduct. The risk of reoffending requires conscientious consideration to be given to all relevant facts including the nature, frequency, incidence and recency of any relevant conduct, together with the available evidence about the implementation of risk minimisation strategies and rehabilitation undertaken, both demonstrated and prospective. It also requires consideration of any expert evidence. In practical terms, unless the evidence provides a real satisfaction that a person’s past offending conduct was atypical and most unlikely to be repeated, there will always be some apprehension that the person may re-offend.

75. In assessing the seriousness of the applicant’s conduct I have borne in mind that not all of the matters the subject of the misconduct findings made by the Office could be said to have, or the potential to have, put the safety of children at risk. Many of the findings relate to matters which may reflect poorly on the applicant’s judgement and pedagogical style, but could not be said to indicate that he poses a “risk to the safety of children” within the meaning of the Act. Examples include his actions in misrepresenting his qualifications on references provided on behalf of students, permitting students to use their phones and ipods during class and making derogatory comments to students about other members of staff.

76. There can be no argument that during the latter part of his time at the College, the applicant posed a risk to the safety of children. Even if, as claimed, he did not intend his out-of-school contact to progress to anything more sinister, that contact, in particular that involving Students A and B, nonetheless posed a relevant risk. Whether or not as Mr Packer contends the Office incorrectly characterised the conduct as “grooming” in my opinion is somewhat beside the point. Whatever the applicant’s intentions might have been the conduct that did occur was serious. In any event, given the nature and frequency of the applicant’s interactions with Student A, it is difficult to resist the finding that had she been more receptive to his overtures there was a real risk that contact might have progressed to something more insidious.

77. Of concern is the fact that at the time of the offending conduct the applicant was not a young teacher whose conduct might arguably be the result a combination of youth, lack of experience and proximity in age to his victims. He was in his early 40’s and had been teaching for about two decades.

78. Also of concern is the duration of the offending conduct. The conduct involving Student A took place in April and May 2005; with Student B between December 2005 and May 2005; and with Students C and D throughout 2004.

79. Weighing against those factors is the positive evidence of rehabilitation. The applicant’s claim not to have repeated that conduct since mid-2005 is supported by the opinion of supervisors and colleagues. Apart from the Instagram allegation there is no material to suggest otherwise. Significantly, not only is there the absence of adverse reports but the available material contains a number of positive and highly favourable reports about his interaction with students since returning to teaching in 2008.

80. Dr Webster believes that the applicant has learnt from his experience, undergone “substantial personal changes” and put in place durable and appropriate risk management strategies. In his opinion, the applicant has addressed the constellation of factors which led to the offending conduct: immaturity, depression, excessive alcohol use and significant stress.

81. Dr Webster’s opinion is of course reliant on what he was told by the applicant. As he points out the psychometric assessment tools he employed together with his clinical judgement, mitigate to some extent the potential unreliability of self-reporting. Nonetheless his assessment (as is mine) relies heavily on the history given. The applicant’s account of having successfully implemented a range of risk management strategies, while consistent with the evidence that he has acted appropriately since returning to teaching in 2008, is nonetheless largely unsupported. For example, there is scant evidence to support his claim that over the past decade he has reconnected with friends and family and enjoys age appropriate relationships. This is of concern given that Dr Baron and Mr Webster believe that the offending conduct was motivated in part by the applicant’s need for “emotional connectedness”. Dr Baron identified social isolation, interpersonal detachment and lack of support networks as areas of potential future vulnerability. Similarly, as pointed out by Ms Mahoney, the evidence that the applicant consistently abused alcohol throughout 2003 to 2005 but no longer does is largely unsupported.

82. The hypothesis that the offending conduct was caused by a combination of stressors together with immaturity explains but does not explain away that conduct. While some comfort can be taken from the opinion of Dr Baron and Mr Webster that there is no indication of personality pathology or clinical disorder, it remains troubling that a constellation of stressors resulted in the the applicant reacting in the manner he did.

83. As Dr Baron pointed out there are a number of potential risk factors relevant to the likelihood of the applicant reoffending. Dr Baron is confident that the applicant has put in place adequate measures to guard against relapse and the re-emergence of those risk factors. Whether the applicant will not repeat the offending conduct depends, among other things, on his ability to maintain the personal discipline he has apparently been able to maintain since 2005. It also depends upon the degree of confidence with which the applicant’s claim of having addressed the factors which caused him to reoffend can be accepted. Having given conscientious consideration to these issues, on balance I am not positively satisfied that the applicant will not repeat his offending conduct. I am satisfied that the applicant poses a risk to the safety of children and must therefore affirm the decision under review.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 June 2015