BVN v Children's Guardian

[2015] NSWCATAD 248

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BVN v Children's Guardian [2015] NSWCATAD 248

Hearing dates:

6 August 2014

Date of orders:

26 November 2015

Decision date:

26 November 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

The decision of the Children's Guardian to refuse BVN a working with children check clearance is affirmed.

Catchwords:

Administrative review – working with children check clearance - misconduct as a teacher categorised as “exploitation: non-physical” – applicant an untreated schizophrenic – applicant without insight into seriousness of his own conduct – decision to refuse working with children check clearance affirmed

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013

Cases Cited:

Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

Category:

Principal judgment

Parties:

BVN – Applicant
Respondent – Children's Guardian

Representation:

BVN (Applicant in person)

 

Counsel: V Harnstein (Respondent)

  Solicitors: Crown Solicitors Office (Respondent)

File Number(s):

1510200

Publication restriction:

S 64(1)(a) restriction on the publication of any information that might expose the applicant’s identity

REASONS FOR DECISION

Non-publication orders

1. In this matter the Tribunal has made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”) prohibiting the publication of the applicant’s name or the name of any other person that would identify him without the leave of the Tribunal. As a consequence the applicant is referred to in these reasons as BVN. In these reasons specific information that may reveal his identity is discussed in a non-specific way in order to protect his identity.

Background

2. BVN has applied for administrative review of a decision of the Children's Guardian to refuse him a working with children check clearance under the Child Protection (Working with Children) Act 2012 (the Act). He was the subject of a risk assessment under the Act because he, as an employee teacher of a secondary school in 2005, had been found by an investigation conducted by the school to be guilty of misconduct categorised as “exploitation: non physical” of two female HSC students. In particular, the investigation found nineteen of twenty allegations sustained. They were, as summarised by the Children's Guardian :

• Allegation One: That on Monday 12 September 2005, the Applicant met with student 1 and student 2 in the Art Room during the Year 11 examination lunch break. This was the first of repeated occasions that he met with these two students, both together or individually.

• Allegation Two: That during 2005 when alone in the Dark Room with student 2, the Applicant told her she had 'a sexy body'.

• Allegation Three: That on Wednesday 24 August 2005, the Applicant gave a gift to student 2, of a Buddhist coin which she later returned to him.

• Allegation Four: That during the period between l0 October and 21 November 2005, the Applicant met with student 1, who was not a student in any of his classes, individually and repeatedly. During these meetings he discussed with her matters of a personal nature namely her relationship with her father and that she was feeling depressed and stressed, without referring her to her Year Patron or one of the School Counsellors.

• Allegation Five: That on Monday 17 October 2005, the Applicant walked student 1 from the Art room to her Extension English class and during that time he said to her words to the effect of, 'The more I get to know you, the more attractive I find you".

• Allegation Six: That during the period between 10 October and 21 November 2005, the Applicant encouraged student 1 to trust him and talk to him about any personal matters. In order to gain that trust, he disclosed personal matters about himself, 'specifically that he may have been molested at Little Athletics as a child and that he did not have a good relationship with his colleagues at the school.

• Allegation Seven : That during the period between 10 October and 21 November 2005 at these meetings, the Applicant revealed to student 1 details about his personal sexual history, specifically that he was a virgin and that he had not experienced oral sex .

• Allegation Nine: That on one occasion during the period between 10 October and 21 November 2005, the Applicant met privately with student 1 and she asked him why he was 'even listening to her. He stated that 'I don't want to have sex with you".

• Allegation Ten: That on one occasion during the period between 10 October and 21 November 2005, the Applicant checked student l's timetable to find a free lesson and then went to the IRC to specifically seek her out.

• Allegation Eleven: That on one occasion during the period between 10 October and 21 November 2005, the Applicant had a conversation in the playground with student 1 in which he described tongue piercing as overrated. At the next subsequent private conversation, he raised the discussion again by saying `I wasn't talking about oral sex”.

• Allegation Twelve: That on the same occasion as allegation eleven, the Applicant then disclosed to student 1 his personal sexual history by stating that he wouldn't know about that, with the clear implication that he had not experienced oral sex.

• Allegation Thirteen: That on one occasion during the period between 10 October and 21 November 2005 the Applicant disclosed to student 1 information regarding a past student and his relationship with her. At that time he told student 1 that the school had been involved in that matter and he had been instructed 'to maintain professional relationships with his students”.

• Allegation Fourteen; That on one occasion during the period between 10 October and 21 November 2005, the Applicant disclosed personal information regarding a sexual relationship between a past staff member and a current staff member. At that time he also disclosed that he and the past staff member had attempted a sexual relationship unsuccessfully.

• Allegation Fifteen: That on one occasion during the period between 10 October and 21 November 2005, the Applicant provided student 1 with letters written to him by the Headmaster and Deputy Headmaster in regard to his employment. On this occasion he gave student 1 the letters in the Art room and gave her time to read each letter carefully.

• Allegation Sixteen: That on Friday 21 October 2005, the Applicant met student 1 in the Art room during recess and late into period 4. She returned to her class with a late note signed by the Applicant.

• Allegation Seventeen: That on Wednesday 26 October 2005, the Applicant met with student 1 in the Art room at lunch, detaining her for five minutes after her English class started.

• Allegation Eighteen: That on Tuesday 1 November 2005, the Applicant met with student 1 in the Art room, resulting in her being late to class and provided her with a note in her diary.

• Allegation Nineteen: That on Monday 21 November the Applicant was sitting and talking individually with a senior female student in her classroom during his Year 7/8 Visual Art class while they worked at the rear of the room.

• Allegation Twenty: That the Applicant failed to meet the professional standards expected of him as a teacher, in that he failed to observe a reasonable instruction given to him by his employer in December .2003, that he was 'instructed not to discuss personal issues with students at any time’.

3. Allegations one to nineteen were categorised as episodes of “exploitation: non-physical” and were reported to the NSW Ombudsman under the applicable legislation at that time. The school terminated BVN’s employment after giving him an opportunity to be heard with respect to the allegations.

4. When BVN applied for a working with children check clearance, the Children's Guardian considered that those findings constituted findings of sexual misconduct against or in the presence of a child. As a consequence, the Children's Guardian considered that it was obliged to conduct a risk assessment under s 15 of the Child Protection (Working with Children) Act 2012: see s 15(1) and Clause 2 of Schedule 1.

5. On 9 March 2015, having carried out a risk assessment, the Children's Guardian decided to refuse BVN’s application for a working with children check clearance.

6. On 10 April 2015 filed an application in NCAT seeking administrative review of that decision.

7. That application was listed for hearing before me on 8 August 2015, when the applicant represented himself, and the respondent was represented by Ms Harnstein of counsel. At the conclusion of that hearing I reserved my decision.

Material considered by the Tribunal

8. In considering BVN’s application I have had regard to the following materials:

1. The s 58 documents filed by the Children's Guardian (225 pages)

2. Documents filed by the Children's Guardian on 31 July 2015.

3. Additional documents filed by Children's Guardian on 6 August 2015.

4. Further documents filed by Children's Guardian on 6 August 2015.

5. Documents filed by Children's Guardian on 10 August 2015.

6. Documents filed by Children's Guardian on 11 August 2015.

7. The Children's Guardian’s s 20 statement of reasons for decision filed 22 May 2015.

8. Documents filed by the Applicant on 19 June 2015 in response to the Children's Guardian s reasons and s 58 documents.

9. Letter from applicant attaching report of Dr Chung, Psychiatrist, dated 9 July 2015.

9. Dr Chung gave oral evidence to the Tribunal during the hearing.

The legislative scheme

10. 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.

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

12. 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.

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

14. 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 2i s sexual misconduct committed against or in the presence of children.

15. 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.

16. 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.

17. 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.”

18. 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.

19. 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.’

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

21. 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.

22. Section 63 of the Administrative Decisions Review Act 1997 says that in determining an application for administrative review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Consideration

23. It is convenient to discuss BVN’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).

24. Before doing so, however, I wish to briefly deal with a large number of complaints the applicant made about the fairness of the misconduct investigation carried out by the school, and the conclusions it reached. BVN is highly critical of the processes used by the investigation and its conclusions. He argues that the he acted appropriately and professionally, and that the true reason for his dismissal by the school were economic.

25. It is important to emphasise that the misconduct findings made against BVN operate as an assessment trigger. The assessment trigger required the Children's Guardian to undertake a risk assessment, when BVN applied for a working with children check clearance. Neither the Children's Guardian, nor this Tribunal on review, are required to conduct a process akin to a review or reconsideration of the process that led to the misconduct findings. The focus for the decision maker is the risk assessment. In the course of the risk assessment some consideration must be given of the circumstances giving rise to the assessment requirement, particularly an assessment of their seriousness. That, however, does not require a review of the misconduct findings.

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

26. As BVN was eager to point out there was no finding that he had engaged in any form of physical contact with female, year 12 students. While some of the matters found to constitute misconduct appear, by themselves, to be relatively innocuous, I accept in the context of all matters found against BVN they form part of a worrying course of conduct.

27. The findings made by the investigation disclosed that BVN had engaged inappropriate behaviour in his dealing with two female students of the school, which behaviour included the discussion of sexual matters personal to him and remarks of a sexual nature. Those discussions crossed the professional barriers that BVN as a teacher was expected to ensure were kept between students and himself, irrespective of how keen the student were to breach them. Those professional barriers were breached when BVN had been warned to keep his relationships with students professional, and when the school had policies (and people) in place to enable students to discuss and address personal matters of concern. The investigation report concluded that BVN was unable to maintain professional boundaries with senior female students, and that BVN had demonstrated this by a pattern of behaviour.

26. In the context of cases of child abuse, this is by no means the most serious form of misconduct or abuse. It is nonetheless conduct which is plainly unacceptable and which may lead to significant harm to the children involved.

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

29. Nearly ten years have passed since the misconduct investigation.

The age of BVN at the time the matters occurred

30. BVN was a 30 year old male teacher who was in a position of power and authority, relative to the female students he was dealing with.

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

31. Both female student were aged 16 at the time. They were doing their HSC with its attendant pressure and worries, and one of the girls (to BVN’s knowledge) suffered from anxiety and depression.

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

32. There was 14 to 15 years difference in age between BVN and the students.

33. BVN was a teacher at the girl’s school. One of them was in one of his classes. As a teacher he was in a position of power and authority relative to them. It is clear that a personal relationship, well beyond the professional boundaries usually applicable to a student teacher relationship, was developing between BVN and his students.

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

34. BVN knew the female students were children.

BVNs present age

35. BVN is now aged 40.

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

36. BVN does not have a criminal record.

37. BVN has not worked since he dismissed by the school in late 2005.

38. In the period since then the applicant’s mental health has been the focus of a number of assessments.

39. In early 2007 BVN’s GP referred him for assessment by a clinical psychologist, Alex Fisher. In his report Mr Fisher commented that BVN “showed very little emotional response even to recent very important events.” He then outlined the history that BVN had provided him with. This included the events leading to his termination by the school, and an injury suffered of his grandmother shortly after he left the school, and her death in late 2006. Mr Fisher wrote:

“[BVN] showed little or no signs of distress or any strong emotion while giving me the above account of the events .., which events might be thought to be disastrous for him. He did show some emotion when talking about the death of his grandmother. When I noted his lack of emotion when talking about the loss of his job he indicated that he was aware of it and went on to say that if he had still been working, he would not have been able to care for his grandmother in the last year of her life and that that outweighed the loss of his position. [BVN] is very religious and indicated that he saw God's hand in what While this is a matter beyond anyone's reckoning it is yet the case that [BVN] does not appear to be acting to clarify his legal position, whether it will be possible for him to return to teaching or what other occupation he might take up or train for.

While his lack of action in clarifying his position might be attributed to depression, the lack of emotion shown by him in the six sessions with me was striking and I did not feel that he even went near to addressing the issues facing him or his reactions to them or to recent events. Nor am I sure that all the recent events and reactions and his odd presentation at least in adulthood can be attributed to depression and/or anxiety. I am not sure that I would be able to help him at this stage. I would suggest that he be referred to a psychiatrist for further assessment and treatment. I talked with [BVN] about referring him on.”

40. There is no evidence before me that BVN was referred to a psychiatrist in accordance with Mr Fisher’s recommendation.

41. He was however assessed by Dr Selwyn Smith, psychiatrist, in 2009 and 2010, concerning his ability to give instructions and evidence in proceedings relating to a financial matter. In reaching his conclusion that was not fit to give evidence or to give instructions Dr Smith wrote –

“It is my opinion that [BVN} demonstrates diagnostic criteria for a Schizoid Personality Disorder. He reveals a pervasive pattern of detachment from social relationships. From an early age he has revealed a restricted range of expression of emotions in interpersonal settings. He has not enjoyed close relationships. He does not appear to desire engaging in a relationship. He has almost always chosen solitary activities. He has little interest in having sexual experiences with another person. He has little pleasure in activities. Indeed he has not engaged in significant activities. He lacks close friends or confidants. His closest friend appears to be his father. He appears indifferent to the praise or criticisms of others.

I was struck by [BVN’s} detachment and flattened affectivity at the time of my examination.

…

A Schizoid Personality Disorder is a schizophrenia related personality disorder. Current psychiatric thinking is that a Schizoid Personality Disorder may be related and share causal linkages to Schizophrenia. In this regard the Schizoid Personality Disorder shares negative symptomatologies (an absence of hallucinations and delusions and other florid symptoms) with Schizophrenia.

…

Although [BVN} has been socially impaired he initially functioned at work as a teacher. His personality disorder however caused him to come into conflict on multiple occasions in the school setting. His actions were deemed inappropriate and he was terminated.

Mr [BVN’s] current psychiatric presentation overlaps with that noted in individuals who display a Schizotypal Personality Disorder. In individuals with a Schizotypal Personality Disorder there is also a pervasive pattern of social and interpersonal deficits marked by acute discomfort with and reduced capacity for close relationships as well as cognitive or perceptual distortions and eccentricities of behaviour. Such a disorder also begins in early adulthood. The behaviour displayed is odd, eccentric or peculiar. Speech is often vague and circumstantial. Individuals may experience odd beliefs or magical thinking and unusual perceptual experiences.

It was not possible to differentiate whether [BVN} suffers from a Schizotypal Personality Disorder because of the paucity of information he provided. It was also not possible to categorically exclude an underlying schizophrenic disorder often associated with individuals who have a Schizoid or Schizotypal Personality Disorder.”

42. In 2014 BVN’s GP referred him to Dr Rhoderic Chung, psychiatrist, for the purpose of his working with children check clearance, commenting that –

“… I do not really know whether he is a risk to children or whether his behaviour is due to his personality disorder and difficulty in defining boundaries etc.”

43. There are three reports from Dr Chung: the first dated 20 August 2014, the second 22 April 2015, and 9 July 2015.

44. In the first report Dr Chung described BVN as “an extremely unusual man.” He displayed long pauses in his speech, which he told the Dr Chung was sometimes because his mind was blank. “There was a degree of bradyphrenia …” He denied hallucinations “in all modalities.” He believed that the school displayed bias in its dealings with him, and malice in his dismissal. He had never had a relationship. He identified as heterosexual and “attracted to women in his own age group.”

45. Dr Chung concluded that –

“In summary, I think that [BVN] is suffering from untreated and undiagnosed Paranoid Schizophrenia. I related this diagnosis to both [BVN] and his father, and strongly recommended that he have a trial of antipsychotic medication to see whether this improved his level of function. The two were to consider this proposition, and were going to make another appointment with me if he wanted to have treatment.

In terms of working with children, I have no evidence that he would be currently sexually inappropriate with young children. However, I am concerned about a patient with untreated schizophrenia having contact with children. I completed a professional reference, stating this concern.

I suspect that at the time [BVN] was dismissed from his job, that his judgement was impaired by either the prodrome or beginnings of his psychotic illness.”

46. Dr Chung completed a professional reference form consistent with that report.

47. In his report of 22 April 2015 Dr Chung noted that BVN attended after having been refused his working with children check clearance, and requesting that Dr Chung address this. Dr Chung wrote:

“We went through the form that I had filled in, and I came to the conclusion that there was nothing in the form that I should change, as essentially he was the same as I saw him last year. He has very little insight, and both he and his father are convinced that he is being treated unfairly.

We also touched on the reasons why his certificate was denied, and he was unable or unwilling to address any of the major issues involved. He would neither confirm or deny that he had behaved in an inappropriate manner with the girls he was teaching.

He became quite argumentative, and somewhat tangential in his thinking.”

48. Dr Chung noted that he had urged BVN to undertake a trail of antipsychotic medication.

49. In his report of 9 July 2015 Dr Chung expressed the opinion that there was sufficient information available to make an evaluation to BVN’s mental health. That diagnosis was that BVN is suffering from Schizophrenia (continuous) in accordance with the criteria set out in DSM 5. Dr Chung discussed each of those criteria and how they applied in BVN’s case. With respect to a question as to whether BVN’s prognosis would support a working with children check clearance under supervision (a condition which the Tribunal does not have the power to make), Dr Chung wrote to BVN –

“… I am concerned about the serious nature of the allegation, the majority of which were found to be true … It is possible that that your impaired judgement and behaviour were influenced by either the early symptoms of schizophrenia or prodromal schizophrenia. As your condition has not been treated, it is entirely possible that this process could continue, and a further impairment of judgement could result in further inappropriate comments to underage children.

In terms of prognosis, if you do not receive appropriate medical care, then your prognosis is poor. You have remained unemployed for the past ten years and your social functioning has also deteriorated. Having said this, in the year that I have known you, your self care appears to have improved and your ability to communicate in a goal directed way has also improved (but has not returned to normal).

…

It is my opinion that you continue to suffer from impaired insight. You still believe that you were dismissed … unfairly, and that the reasons were economic rather than any inappropriate behaviour on you respondent part. You justify your actions as being that of a professional teacher acting under duty of care “in loco parentis”. … When asked whether you acted in the manner you were accused of you never gave me a clear answer.

50. Finally, in his last report, Dr Chung considered that BVN was fit to provide evidence at the hearing of his administrative review application.

51. Dr Chung gave oral evidence to the Tribunal consistent with his reports. He disagreed with propositions put to him by BVN concerning the viability of other modalities of treatment, such as diet. Dr Chung remained of the view that a diagnosed, but untreated, person with schizophrenia should not work with children.

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

52. In a statutory declaration made by BVN in October 2013 he briefly set out that he had been interviewed with respect to the allegations by the investigator in 2005, and that most of the allegations had been “upheld.” He criticised the referral to the Ombudsman by the headmaster of “possible grooming behaviour” as being contrary to the investigation findings. He said that his employment had been terminated and that he had not been offered any counselling. As a result he had sought counselling himself after a “subsequent breakdown.”

53. In his initial response to the notice of proposed refusal of his application for a working with children check clearance the applicant disputed that the allegations found against him during the misconduct investigation flitted the category, “Sexual misconduct (exploitation: non physical).” He indicated that his interactions with the female students was done in fulfilment of his duty of care. He attached the original assessment form Dr Chung, and a letter from the school refusing him access to documents relating to the investigation.

54. In his response to the reasons and s 58 documents (which included investigation documents) filed by the Children's Guardian BVN:

1. Contended that the reasons for decisions had not considered all of the references he had provided, including that from his father.

2. Took issue with the integrity of the investigation process and with the validity of his termination of employment by the school. This includes a detailed analysis of the investigation documents and procedures.

3. Asserted that the female students were “post-compulsory senior students and were expected to be treated as such in transition to life after [school].” He was providing assistance to them in accordance with their needs.

4. Asserted that the full diagnosis reached by Dr Chung is “Unspecified Schizophrenia Spectrum Disorder.”

5. Attached a number of further references, including one from his sister. The authors of these references all attested to some knowledge of his dismissal and, in differing terms, said that to their knowledge he had not acted inappropriately at any time since.

55. I have already indicated that the task of the Children's Guardian, and of the Tribunal on review, is to conduct a risk assessment, not to revisit and review the merits of the assessment trigger. I do not intend to address issues raised by BVN going to the merits of the investigation conducted by the school. I have already indicated that the seriousness with which I view the allegations found by the misconduct investigation.

56. As to the question of Dr Chung’s diagnosis the best evidence of this are Dr Chung’s reports. I am satisfied that he has diagnosed BVN with schizophrenia (continuous). The diagnosis of Schizoid Personality Disorder was reached by Dr Selwyn Smith in 2009 and 2010. In reaching that diagnosis Dr Selwyn Smith said he could not exclude a diagnosis of schizophrenia.

57. With respect to the references, they speak for themselves. They accord with the fact that there is no evidence (or suggestion) of BVN behaving inappropriately with any children since his dismissal. They do not address the obvious impairments affecting BVN as discussed in the various medical reports.

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

58. The Children's Guardian’s first raises concerns about BVN mental health. In my view the opinion of Dr Chung that BVN suffers from schizophrenia (continuous) is one that I should accept. It was reached after lengthy consultations with BVN and is more recent that the opinion of Dr Smith that BVN has Schizoid Personality Disorder. In reaching that diagnosis Dr Selwyn Smith said he could not exclude a diagnosis of schizophrenia. It is entirely consistent with BVN’s isolated life style, his absence from work for 10 years, his presentation, his sense of grievance at his treatment by the school, and his lack of insight into the nature and seriousness of his conduct in dealing with the two female students.

59. I also accept the opinion of Dr Chung that the conduct which led to the misconduct investigation is consistent with BVN’s judgment being affected by either the prodrome or beginnings of his psychotic illness. I also accept that while BVN’s schizophrenia is untreated there remain real concerns about BVN working with children, which concerns include the real possibility of him repeating conduct akin to that found by the misconduct investigation, or worse.

60. The second issue raised by the Children's Guardian is BVN’s lack of insight into the seriousness of his conduct. In reality this failure to accept or understand the concerns raised by his conduct in dealing with the female students, was a factor that exacerbated the concerns held by the investigator. In her summary of the investigations findings the investigator wrote –

“Whilst I have not found that [BVN] engaged in sexual activity or grooming behaviour to initiate sexual activity with these students, I remain extremely concerned that [BVN] seems unable to establish professional boundaries with female students. This is the second occasion in which the school has been aware of and investigated [BVN’s] failure to observe and maintain professional distance with students … I believe this is a cause of concern and is a pattern of behaviour.”

61. In my opinion, it is evident that in the years since the investigation BVN has not gained any further insight into the unprofessional and worrying nature of his conduct. His continued insistence that he was acting in the best interest of the female students in accordance with his duty of care graphically demonstrates his lack of insight. I agree with the Children's Guardian that BVN has not learned from his experience at all.

62. I think it unlikely that he will do so while his schizophrenia remains untreated.

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

63. If BVN were granted a working with children check clearance I have no confidence that he would not again repeat conduct of the type found by the misconduct investigation, with similar of worse consequences to the children involved. This will remain the case while his schizophrenia remains untreated and while he has no insight into the concerns raised by his conduct.

Conclusion

64. Having regard to all the matters required by s 30 I am satisfied that BVN does pose a real risk to children, for the reasons I have set out above. As I will confirm the decision of the Children's Guardian to refuse him a working with children check clearance.

Orders

65. The Tribunal makes the following order:

1. The decision of the Children's Guardian to refuse BVN a working with children check clearance is affirmed.

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

Registrar

Decision last updated: 26 November 2015