BQY v Children's Guardian

[2015] NSWCATAD 181

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BQY v Children’s Guardian [2015] NSWCATAD 181
Hearing dates:	12 June 2105
Decision date:	28 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Molony, Senior Member
Decision:	1. The decision of the Children's Guardian made 15 January 2015 refusing BQY a working with children check clearance is set aside.  2. The Tribunal determines to grant BQY a non-volunteer working with children check clearance.
Catchwords:	Child Protection – working with children check clearance – application for administrative review Children's Guardian decision set aside – working with children check clearance granted
Legislation Cited:	Child Protection (Working with Children) Act 2012
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commissioner for Children and Young People v FZ [2011] NSWCA 11 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	BQY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Doust (Applicant) G Mahony (Respondent)   Solicitors: Dormer Stanhope Pty Ltd (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510059
Publication restriction:	S 64(1) order.

REASONS For decision

Non-publication orders

1. At the commencement of the hearing, with the consent of the parties, I discharged the non-publication order made by the Tribunal on 28 April 2015. In its place I made the following order:

Pursuant to s 64(1) the Tribunal prohibits the disclosure, broadcast or publication of:

(1)   the applicant’s name;

(2)   details of the schools she taught at as a student teacher;

(3)   the names of her fellow teachers at those schools; and

(4)    the names of any students she taught as a student teacher.

2. I considered that order necessary to protect the BQY’s identity and that of any student affected by the BQY’s conduct that led to her being refused a working with children check clearance.

Background

3. BQY has applied for administrative review of a decision of the Children's Guardian to refuse her a working with children check clearance under the Child Protection (Working with Children) Act 2012 (the Act). She was the subject of a risk assessment under the Act because she, as a student teacher in 2011, had been found by the Department of Education and Communities (the DEC) to be guilty of misconduct by engaging in a personal relationship with a year 12 male student. At that time she had just turned 21. This finding was made by the Employee Performance and Conduct Director in respect of the following allegations made against BQY that she:

1. Engaged in a personal relationship as opposed to a professional relationship with a year 12 student [name] as evidenced by:

a. Conversing with [the student] on Facebook;

b. Giving [the student] a flat screen television for his 18th Birthday ….

2. Engaged in a personal relationship, as opposed to a professional relationship, including that of a sexual nature with year 12 student [name] in the months after your placement at [name] High School.

4. BQY was given written notice of those allegations in mid-March 2012. At that time she was still a student. She responded in writing as follows:

“I admit the allegations in your letter i.e.

1. Engaged in a personal relationship as opposed to a professional relationship, with year 12 student [name]; and

2. Engaged in a personal relationship as opposed to a professional relationship including that of a sexual nature with year 12 student [name].

I ask you to please consider when determining what disciplinary action should be taken:

• In relation to allegation number 2 above, I wish to clarify that my relationship with [the student] was completely consensual and at no time did we engage in sexual intercourse;

• I have never been charged with a criminal offence and do not have a criminal record;

• In all areas of my life I attempt to conduct myself with a high degree of integrity and professionalism; and

• I understand that I wrongly engaged in a personal relationship with a student and I sincerely regret my actions.

I wish to express my remorse and I can assure you that I have learnt a valuable lesson and will never engage in a personal relationship with a student in the future.

5. I observe the “sexual nature” of the relationship alleged against BQY by the Department was not specified, as was the “sexual nature” of the conduct she admitted to, save that she denied sexual intercourse.

6. Following receipt of BQY’s letter the allegations against her were found to be sustained and to constitute misconduct. She was given notice that the Department was considering placing her name on the list of persons not to be employed by it. On 8 June 2012 she was advised that her name had been placed permanently on the list of people not to be employed by the Department. Her conduct was found to be reportable conduct, and was referred to the Commission for Children and Young Persons as a Category 1 report.

7. Since then BQY has finished her degree and is now employed in a clerical capacity by a large company.

8. BQY made an application for a working with children clearance check on 12 September 2013. On 21 March 2014 the Office of the Children's Guardian imposed an interim bar on BQY engaging in child related work. On 14 January 2015 the Children's Guardian advised BQY that she would not be granted a working with children clearance check because she was a risk to children, as “the seriousness of your sexual misconduct resulted in your employer placing you on the not to be employed list.”

9. On 2 February 2015 BQY made an application for administrative review of that decision in this Tribunal. The matter came before me for hearing on 12 June 2015, when Ms Doust appeared for the applicant, and the Children's Guardian was represented by Ms Mahony.

Material before the Tribunal

10. In considering BQY’s application I have had regard to the following materials:

1. The s 58 documents filed by the CG (479 pages)

2. The Children's Guardian’s s20 written reasons for decision report dated 26 March 2015.

3. Information provided by the NSW Police Force relating to BQY.

4. BQY’s bundle of document including her statement of 17 April 2015.

11. During the hearing BQY gave sworn evidence and was cross-examined.

The legislative scheme

12. The Act regulates who can engage in child-related work by requiring that they have “working with children check clearances.” 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: see 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 the Act. Children are persons under 18 years of age: see s 4.

13. Section 8(1) of the Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children’s Guardian for the relevant working with children check clearance.

14. The term ‘child-related work’ is broadly defined in section 6 of the Act. It is not necessary for the Tribunal to determine whether the person seeking a working with children check clearance is engaged in, or proposes to engage in, ‘child-related work’. Section 6 of the Act provides, among other things, that a person who engages in work in education and in clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children is engaged in “child-related work” for the purposes of the Act.: see section 6(2)(d) and (g) (This includes, among others, work as a coach or team manager: see clause 7(2) of the Child Protection (Working with Children) Regulation 2013. The Act contemplates two classes of working with children clearances; namely “volunteer- authorising workers to engage in unpaid child-related work”; and “non-volunteer – authorising workers to engage in paid and unpaid child-related work”: see s 12.

15. Section 13 requires that an application for a clearance be made to the respondent.

16. If any of the matters specified in Schedule 1 apples to a person, s 14 provides that they are the subject of an assessment requirement. Among the assessment requirement triggers set out in in Schedule 1 is clause 2:

2 Findings of misconduct involving children

A person has been the subject of a finding by a reporting body that the person engaged in the following conduct:

(a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child,

(b) any serious physical assault of a child.

The DEC is a reporting body for the purposes of the Act: see the definition of reporting body in s 4 and s 35(4)(b). As a result of the Department’s finding that BQY engaged in “a personal relationship as opposed to a professional relationship including that of a sexual nature with year 12 student [name]”, she is subject to an assessment requirement under the Act.

17. Section 15 provides that the Children's Guardian must conduct a risk assessment of an applicant for working with children check clearance who is the subject of an assessment requirement. Sub-section 4 provides –

(4) In making an 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.

18. Section 18(2) provides that the Children's Guardian must grant a working with children check clearance to a person who is the subject of an assessment requirement, “unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.” The Children's Guardian is required to notify the applicant of that any proposed decision to refuse a working with children check clearance, and to then consider any submissions made by that person, before finally deciding the application: s 19. A person who is refused a working with children check clearance is prohibited from applying for a clearance for 5 years, unless there is a defined change in circumstances: s 21.

19. A person aggrieved by a decision of the Children's Guardian to refuse a working with children check clearance may seek administrative review of that decision under the Administrative Decisions Review Act 1997: s 27(1). Such an applicant has an obligation to “fully disclose to the Tribunal any matters relevant to the application.”

20. Section 30 sets factors to be considered by the Tribunal when conducting a review under s 27 to determine whether an applicant poses a risk to children. It is in the following terms:

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.

21. The meaning of the word ‘risk’ was considered, by Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

‘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.’

22. Those remarks are equally applicable to the word ‘risk’ as it appears in the 2012 Act.

23. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

Consideration

24. It is convenient to discuss BQY’s application by considering each of the factors that s 30 of the Act requires the Tribunal to have regard to (although not in the order set out in that section).

The seriousness of the matters that caused the refusal of a working with children check clearance

25. BQY commenced a four year degree in physical education in 2008, having completed her HSC in 2007.

26. Each year, as part of her studies, BQY was required to undertake a 4 week teaching “practicum” in which she would gain on the ground experience teaching students under the supervision of practicing teachers. In 2011 this practical experience was gained teaching in a suburban High School. For the first time, this included teaching year 12 students, who are usually aged 17 or 18. She also taught more junior classes, following the teaching load of her supervisor.

27. When the practicum commenced BQY was aged 20. She turned 21 during the four week period. As already noted the experience of teaching senior students was new to BQY. She explained that the teaching style required was less formal and more conversational than the lecturing mode she adopted with more junior students.

28. During the misconduct investigation undertaken by the DEC, BQY’s supervising teacher said that it was common during BQY’s placement for year 12 boys to gather outside the staff room, and for BQY go out and talk with them. BQY described the boys as, “joking, loud and attention seek.” BQY said she spoke with them, “in a relaxed and friendly manner.” While she denied flirting with them, she accepted, in retrospect, that it was “too friendly” and may have been perceived by others as “flirtatious.” One of those boys she subsequently developed a personal relationship with.

29. The supervisor said that if she was coming through the group outside the staff room she would tell the boys to move on. She did not directly talk to BQY about her interaction with the boys, but was aware that another teacher, “told her just to be careful.” In her more general talks with BQY the supervisor said she warned here not to be too friendly with the boys and of the need “to maintain a level of professionalism.”

30. The supervisor completed regular assessments of BQY during the practicum. None of them contains any reference to these concerns. All of the assessments of BQY were satisfactory, and there is no mention of BQY’s contact with the senior boys being a matter of concern. This is consistent with BQY’s evidence that she was not aware of there being a concern during the practicum that she was becoming too familiar with the senior boys. She also had no recollection of her supervisor moving the boys on.

31. At the time of this practicum BQY had not undertaken the course called Current Issue in Health and Physical Education which is part of her degree. In that course the need to maintain proper professional relationships with students, and the reasons for doing so, are a focus of attention. As I understand it, this subject is usually undertaken before student do their fourth practicum, but in BQY’s case this did not occurred. As a consequence, when BQY undertook her practicum, she did so without the benefit of being educated in the professional ethics relating to relationships between students and teachers.

32. In her statement BQY described what occurred after she completed the practicum:

19.   After the practicum … I was tracked down by a number of students, including [name], requesting me to be Facebook friends. Some had made those requests whilst I was still teaching at the school. However, I did not accept any requests until shortly after the completion of my practicum at the school. At the time, I did not think there was anything wrong with accepting these requests. I now see that this was inappropriate, and would not do so in future.

20.   I began talking to [name] and some of the other students on Facebook. Some of the students wanted to chat socially and others would ask me for some advice about university and life after school.

21.   Initially I spoke to [name] on Facebook and through text message daily and we developed a friendship through this.

22.   I also began bumping into [name] and his friends around the local pubs and clubs. I didn't see [name] alone, but with a large group of people, consisting of his friends, my friends or both. In about the week before [name’s] birthday, I was asked to meet [name] and his friends for his birthday. I attended the gathering.

23.   On 3 July 2011, [name] turned 18 years old. I was approached by one of [name’s] friends on Facebook who asked if I would like to contribute to [name’s] birthday present. I gave about $50 to the purchase of a television for [name’s] birthday. At the time I did not think there was anything wrong with doing this as the gift was from a large group. I now know this was also inappropriate, and would not do anything similar in future.

24.   I delivered the TV to [name’s] house a few days after his birthday. I did this because I was the only one in the group of people who contributed to the present who had a car and was not working at the time. [Name] was not home and I was not expecting to stay, however, his mother invited me in for a cup of tea.  Whilst I was chatting to his mother, [Name] came home and 1 gave him the TV. We then went to the lounge room and had a chat. Our conversation was flirtatious and playful and at one point [name] kissed me. It did not go for very long. There was only one kiss, but It was romantic in nature and not just a platonic kiss on the cheek. The situation became very awkward arid uncomfortable and I left shortly after. There was no further physical contact between us after that incident.

25. Following the kiss, [name] and 1 did not speak as often. We messaged each other occasionally and I only saw him in person once again when we bumped Into each other at a local pub.   

33. There is no evidence that contradicts this version of events.

34. There can be no doubt that BQY developing and maintaining a personal, rather than a professional relationship, with a male student, who remained a student, even though BQY was no longer teaching him, was properly viewed as misconduct on BQY’s part. I am inclined to the view that the relationship always had sexual undertones to it (i.e. attraction), but find that the only overt sexual behaviour involved was the kissing that occurred when BQY delivered the birthday gift she had contributed to. At the time this occurred the year 12 male concerned remained a student, but was not a child within the meaning of the Act.

35. During the hearing I clarified with the Children's Guardian that it is not suggested that the misconduct finding by the DEC constitutes a finding that BQY was grooming the male student. On the evidence before me I cannot see how that could be the case.

36. I also accept that when BQY formed her relationship with a former student, she did so without the benefit of having studied Current Issue in Health and Physical Education, which subject would have alerted her to the ethical issues associated with such a relationship. While this does not excuse her conduct, I would view it more seriously had she undertaken that course and chosen to ignore its lessons by forming the relationship.

The period of time since those matters occurred and the conduct of BQY since they occurred

37. Four years have passed since the events in issue occurred. These is no suggestion that BQY had engaged in similar conduct since.

38. Indeed the evidence before me suggests that BQY has actively sought to implement changes in her life to ensure that she does not fall into similar difficulties again. For example, she has changed the way in which she participates in social media, changing her Facebook name so that it will not be recognised by students. She has also been careful to comply with the restrictions imposed on her by the Children's Guardian’s placing of an interim bar on her working with children, and the subsequent refusal of her application for a working with children check clearance. Perhaps the most notable example of this is that she has curtailed her involvement in her favourite sport (for which she has an evident passion) by removing herself from roles in which she was required to deal with children, such as coaching and umpiring. At the same time she has maintained her interest in that sport both as a player and a functionary, by devoting herself to roles that do not require contact with junior players.

39. The finding of misconduct by the DEC effectively put BQY’s desire teach at an end, especially as it has resulted in her being denied a working with children check clearance. BQY has got on with her life however, and has found employment elsewhere. She nonetheless still strongly desires to fulfil her lifelong ambition of teach physical education, which combines her desire to teach with her love of sports.

40. It is also clear, as is discussed in greater detail below, that the finding of misconduct against BQY has impacted adversely on her mental health and well-being and her sense of self-worth.

The age of BQY at the time the matters occurred

41. At that time BQY was 21.

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

42. The male student was aged 17, but turned 18 as the relationship developed. He was 18 at the time he and BQY kissed, and therefore not a child within the meaning of the Act.

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

43. The age difference between BQY and her student is 3 and ¼ years. At all times he remained a student whom BQY had taught, and the subject of the power imbalance that exists between teachers and students.

Whether the BQY knew, or could reasonably have known, that the victim was a child

44. BQY knew the student was in year 12. As the ages of year 12 students are usually in the 17 to 18 year old range, she would have known that it was likely that he was under 18 and therefore a child. As already noted he turned 18 in the course of the relationship.

BQY’s present age

45. BQY is now aged 25.

The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred

46. On 13 October 2012 BQY was convicted of a charge of driving with a mid-range prescribed content of alcohol. She received the minimum period of licence disqualification and a fine.

47. She has no other convictions of any type.

Any information given by BQY in, or in relation to, the application

48. In support of her application has filed:

1. Two reports from Anna Robilliard, Forensic Psychologist, dated 14 October 2013 and 1 September 2014, in which Ms Robilliard conducted risk assessments with respect to BQY.

2. A bundle of references for BQY.

3. Various certificates and statements of attainment obtained by BQY.

4. Documents said to demonstrate her high level of participation in her favourite sport.

49. In both her reports Ms Robilliard’s went somewhat beyond her remit in criticising the adequacy of BQY’s supervision during the practicum, and the unfairness of the process adopted by the DEC in dealing with misconduct allegations against a student teacher. BQY’s counsel made it clear that reliance was not placed on those parts of Ms Robilliard’s report, while the Children's Guardian objected to the Tribunal giving them any weight.

50. As a result I will refrain from considering those aspects of Ms Robilliard’s report. I would add that the lack of specificity in the allegations of misconduct made against BQY, and in the findings of misconduct made by the DEC against BQY have caused me some difficulty in determining how that misconduct affected children within the meaning of the Act, rather than students (who may be adults) which was the focus of the DEC’s concern.

51. In preparing her reports Ms Robilliard undertook psychometric testing of BQY which, together with her presentation, were consistent with BQY having “an intact personality construct and stable emotional adjustment.’ With respect to the likelihood of BQY repeating her behaviour Ms Robiullard wrote in her first report –

This young woman described stable, nurturing home and family circumstances during her formative years. She was not exposed to any abuses or neglect that could have shaped personality pathology and dysfunction. She appears to have absorbed the prosocial standards, attitudes and values of her family and the community she grew up in. Her educational attainments have been sound. Her community involvement and participation in social and sporting activities has also been healthy. She presented some reticence with regard to committed interpersonal relationships. BQY lived at home with her family during her student years and moved out after she had turned 21. Her relative immaturity and naivety, evident in BQY’s responses to the unexpected and formal communications from the Department of Education and Communities with regard this matter, was consistent with her limited experience of the world at the time. BQY has subsequently participated in accredited training appropriate to her perceived misconduct. She remains committed to a future in physical education teaching and would be willing to cooperate with any supervision that might be deemed necessary by the Department of Education and Communities in order to be considered for employment.

52. In her second report Ms Robilliard commented that –

In the light of the personal cost, financial expense and emotional distress this matter has caused BQY and her family, it is my view the combined deterrent effect would mitigate against any possible recurrence of such conduct which I believe was predominantly the result of lack of appropriate training and quality supervision of a young and naïve student teacher.

53. In her reports Ms Robilliard noted the efforts BQY had gone to, to educate herself on matters of professional ethics and child protection. In addition to undertaking the prescribed course Current Issue in Health and Physical Education as part of completing her degree, BQY had undertaken a number of other training programs focusing on child protection. These include:

1. Chid-Safe and Child-friendly, Principles and Practices with CCYP;

2. Participation in two coursed run by In Safe Hands, namely Essential Child Protection NSW and Induction Child Protection Family Day Care NSW; and

3. Completion of “PBTR – Child Protection” an on line training course run by Play by the Rules.

54. BQY said that these courses had reinforced that she had behaved inappropriately in her dealing with students following the conclusion of her practicum. At the time she did not believe she was doing anything wrong, having returned to life as a full time University student. None of her fellow students had questioned her conduct at the time.

55. BQY also relied on a series of personal references from a variety of people, many of who she knows through her sport, that spoke of her good reputation and the trust the authors had in her. The majority of the writers were aware of the misconduct allegation against BQY, but nonetheless were able to make very positive assessments of her reputation and character. It is clear that she is held in high regard by those she associates with, and is a dedicated and well regarded sportswomen.

56. It is also clear form Ms Robilliard’s report that the misconduct findings have had a significant and adverse effect on BQY’s mental health and sense of self-worth. She documents episodes of depression requiring treatment, and one episode of self-harm.

Any other matters that the Children’s Guardian considers necessary.

57. At the heart of the concerns expressed by the Children's Guardian in opposing BQY’s application for a working with children check clearance are the recency of the events that lead to the misconduct findings against her; BQY’s lack of understanding and insight into why her relationship with year 12 students was wrong (even after competing her practicum), and the importance of the role she wishes to undertaken if granted a clearance, namely teaching children.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

58. There is no doubt that following her fourth teaching practicum BQY crossed the ethical boundaries set by her chosen profession, and those of wider society, by engaging in social relationships with her former students (while they remained students) and by engaging in a personal relationship, which had sexual undertones to it, with a male student. Fortunately that relationship did not go beyond kissing. That contact occurred at a time when the student was no longer a child within the meaning of the Act.

59. I accept that at that time BQY was back at University and, out of ignorance, did not realise that maintaining relationships with students she had taught during the practicum constituted unprofessional conduct. I also accept that she did not appreciate the seriousness of her conduct, as is illustrated by the very naive and unwary way in which she dealt with the accusations of misconduct made by the DEC. I am sure that had she been aware of the consequences which might follow from a misconduct inquiry, she would have sought assistance, and that her response would have been more measured, seeking to define precisely what she was admitting to

60. I am satisfied that the consequences of that misconduct inquiry have been relatively severe for BQY. It has affected her mental well-being. She has been unable to pursue her chosen profession, despite completing her degree, and is now seeking a working with children check clearance in the hope of being able to now, four years later, commence her career.

61. BQY was just 21 at the time the events leading to the misconduct findings occurred. Ms Robilliard described her as being naïve and immature at that time. I agree with that description. Both her actions leading to those allegations, and the manner in which she approached the misconduct inquiry, point to her lack of insight into the seriousness of her conduct at that time, and to her naivety and immaturity.

62. The woman who presented and gave evidence in support of her application for a working with children check clearance before me, impressed as a very different person to the immature student teacher who kissed a former student in 2011. While she had some difficulty articulating her understanding of the philosophical basis for limiting social contact between teachers and students, she demonstrated a sound understanding of what those rules are. She understands that the power imbalance between students and teachers is one that can be readily exploited by teachers to the detriment of their students, and requires that firm boundaries be drawn and adhered to reduce the opportunities for students to be exploited or taken advantage of.

63. There was no dispute that in her daily life BQY has respected and paid regard to the lessons that she has learned as a result of the misconduct findings, and as a consequence of being refused a working with children check clearance. Her changes to her Facebook profile in order to avoid the potential for students to easily locate her on line, is one example of this. So too is her removal of herself from coaching and umpiring roles in her chosen sport, in order to ensure she does not have contact with children in a supervisory context.

64. A major concern of Children's Guardian is the recency of BQY’s misconduct and concerns that she has not sufficiently matured since then for me to be satisfied that she is not a risk to children. I do not share those concerns.

65. BQY was a young and immature 21 year old at the time of the misconduct. In the years that have passed since then I am satisfied that she has matured significantly, and now has real insight into the gravity of her past behaviour, and sincere regret for it. I have in the past, in a different context, had occasion to remark on the propensity for young people who get into difficulty with the criminal law, to learn their lessons quickly, mature and become valued members of the community: see Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 where I said:

40.l .... The reality is that young people show a degree of immaturity, poor judgment and risk taking, which can lead to difficulty with the law. They are more susceptible to peer pressure, and do not have a depth of experience to inform their decision making. Their characters are not as formed or entrenched as those of adults. In contrast mature adults are more set in their ways, informed by experience, and usually better able to make independent decisions.

41. In some cases the interface of youths with the criminal justice system is a precursor of much more contact to come. In others, youths respond to that contact by taking positive steps to change themselves and to avoid further contact with the criminal justice system.

66. In my view the spirit of those words is equally applicable to BQY. I accept that she has learned from the misconduct findings at considerable personal costs. There is no suggestion that she has engaged in any similar conduct since 2011. It is not suggested that her conduct in 2011 was deliberate or planned, or that she set out to groom the student. Her previous practicum placements were unremarkable. Ms Robilliard found no indication of any concerning pathology affecting BQY. BQY is now 25, and much more mature and insightful than she was in 2011. I think it improbable that she will, if granted a working with children check clearance, repeat her previous misconduct.

Conclusion

67. Having regard to all the matters required by s 30 I am satisfied that BQY does not pose a real risk to children, for the reasons I have set out above. As a consequence I will set aside the decision made by the Children's Guardian and in lieu thereof determine to grant BQY a non-volunteer working with children check clearance.

Orders

68. The Tribunal orders that:   

1. The decision of the Children's Guardian made 15 January 2015 refusing BQY a working with children check clearance is set aside.

2. The Tribunal determines to grant BQY a non-volunteer working with children check clearance.

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

28 August 2015 - Typographical error in Para 32

Decision last updated: 31 August 2015