BXU v Children's Guardian

[2016] NSWCATAD 35

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXU v Children’s Guardian [2016] NSWCATAD 35
Hearing dates:	18 November 2015
Date of orders:	23 February 2016
Decision date:	23 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member Emeritus Professor P Foreman, General Member A Limbury, General Member
Decision:	The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check clearance.
Catchwords:	Administrative Law - review under s27   Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance –criminal charges dismissed- the correct and preferable decision - whether the applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Public Sector Management Act 1988
Cases Cited:	BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v V [2002] NSWSC 949 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 Holbrook and Australian Postal Commission (1983) 5 ALN N46 Minister for Immigration and Ethnic Affairs v Pochi(1980) 4 ALD 139; BJB No. 2 M v M [1988] HCA 68 BKE v Children's Guardian [2015] NSWSC 523
Category:	Principal judgment
Parties:	BXU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C McGorey (Respondent)   Solicitors: BXU (Applicant in person) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	1510335
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for Decision

Non-publication orders

1. In this matter the Tribunal has made an order under s 64(1)(a) of theCivil 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 BXU. 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. “BXU”, has applied to the Civil and Administrative Tribunal of New South Wales (NCAT) for review of a decision made by the Office of the Children’s Guardian to refuse to grant him a “working with children check clearance”. The decision under review was made following a “risk assessment” conducted by the Children’s Guardian. The Child Protection (Working with Children) Act 2012 (NSW) (the Act) required the Children’s Guardian to conduct a risk assessment because BXU is subject to an “assessment requirement” on account of criminal charges laid against BXU in relation to complaint 1 which is discussed below. However BXU is not a “disqualified person” within the meaning of the Act as he was not convicted of these criminal charges.

3. The Act was amended by the Child Protection Legislation Amendment Act 2015. The amendments commenced operation between 15 October and 2 November 2015 which is after BXU filed his application.

4. The task of the Tribunal is to decide the “correct and preferable decision” having regard to the material before it, including any relevant factual material and applicable written or unwritten law (s 63(1) of the Administrative Decisions Review Act 1997 (NSW)) (“the ADR Act”). In so doing the primary issue to be decided is whether BXU now poses a “real and appreciable risk” to the safety of children.

5. The jurisdiction of the Tribunal under s 27 of the Act is protective and not punitive in nature. BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [110].

6. For the reasons that follow the Tribunal decided to set aside the decision under review and to grant BXU a working with children check clearance.

BXU’s conduct

7. The matters concern two complainants referred to as Complainant 1 and Complainant 2 in these reasons.

8. From the late 1970’s BXU was appointed as a counsellor at a Youth Centre run by what was then known as the Department of Youth and Community Services. He continued in this role at the time of the relevant alleged conduct. The Youth Centre provided specialist counselling services and programs for juvenile offenders.

9. Complainant 1 commenced attending the Youth Centre following his release from a juvenile detention centre in 1981 when he was 15 years old.

10. Complainant 2 commenced attending the Youth Centre in approximately April 1983 when he was 17 years old.

11. In approximately mid 1996 Complainant 1 made written statements to police in which he alleged that BXU had committed sexual offences against him in 1981 and 1983.

12. On 15 August 1996 BXU was interviewed by police in relation to Complainant 1’s allegations. BXU denied the allegations but admitted that he had a consensual sexual relationship with Complainant 1 when Complainant 1 was 18 years old.

13. On 17 January 1997 arising from Complainant 1’s allegations, BXU was charged with the following criminal offences (“the criminal charges”) :

1. Between 22 May 1981 and 22 June 1981, he did commit an act of buggery with Complainant 1 contrary to s 79 of the Crimes Act 1900;

2. Between 22 May 1981 and 22 June 1981, he did commit an act of indecent assault on Complainant 1 contrary to s 81 of the Crimes Act 1900;

3. On 23 July 1981, he had sexual intercourse with Complainant 1 without consent contrary to s 61D of the Crimes Act 1900; and

4. On 17 October 1983 he had sexual intercourse with Complainant 1 without consent contrary to s 61 D of the Crimes Act 1900.

14. Between 20 February and 4 April 1997 Complainant 2 made statements to police in which he alleges BXU sexually assaulted him on one occasion. Complainant 2 also alleged that BXU had engaged in inappropriate conversations about his sexuality and other personal matters.

15. On 2 June 1997 police determined that no charges would be brought against BXU in respect of Complainant 2’s allegations.

16. On 1 September 1997, the criminal charges arising from the allegations of Complainant 1 were dismissed at Parramatta Local Court as a result of the Director of Public Prosecutions offering no evidence.

17. As at 17 December 1997 BXU was charged with the following breaches of discipline (“the disciplinary breaches”) under the Public Sector Management Act 1988:

1. On 17 October 1983 he did engage in sexual intercourse with Complainant 1 a person known to him through his employment with the department in circumstances where he was previously his counsellor at a Youth Centre;

2. After 17 October 1983 he did engage in sexual relations with Complainant 1, a person known to him through his employment as counsellor at the youth centre;

3. On or about 20 December 1983, he did engage in sexual relations with Complainant 2, in that he manually stimulated his penis, at a time when Complainant 2 was his client at the youth centre; and

4. On or about 20 December 1983, he did engage in sexual relations with Complainant 2, in that he engaged in anal intercourse at a time when Complainant 2 was his client at the youth centre.

18. On 4 February 1998 following a disciplinary investigation BXU was advised that all four disciplinary charges were proven.

19. On 30 March 1998, BXU was dismissed from the public service. BXU appealed this decision.

20. On 29 July 1998, a settlement was reached between BXU and his employer. The terms of this settlement included that BXU would resign with effect from 30 March 1998 and his employer would make no reference to the circumstances of that resignation in response to employer inquiries except as permitted by law or government policy.

21. There have been no reports of adverse conduct on the part of BXU since the last alleged offence in 1983.

Material considered by the Tribunal

22. The applicant relied upon the following documents:

23. Submission of BXU filed 12 November 2015

24. At the hearing the applicant gave sworn oral evidence and was cross-examined by Counsel for the respondent.

25. The respondent relied upon the following documents:

26. Bundle of documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 on 15 July 2015

27. The respondent also provided a written submission and chronology filed on 10 November 2015.

Statutory scheme

28. 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).

29. 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 that involves “direct contact” with children (s 6(1)).

30. Part 3 of the Act deals with the granting and refusal of clearances. If the Children’s Guardian becomes aware that a person 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)).

31. Persons who are subject to a risk assessment are those to whom any of the matters specified in Schedule 1 of the Act apply. Paragraph 1 (1)(b) of Schedule 1 provides “ proceedings have been commenced against a person (a)…or (b) for an offence specified in clause 1 of Schedule 2 if the offence was committed as an adult, and the person is not, because of those proceedings a disqualified person.”

32. In paragraph 1 (d) of Schedule 2 an offence under section 61 D of the Crimes Act 1900 is specified as a disqualifying offence. In paragraph 1 (j) an offence under section 79 of the Crimes Act 1900 is specified as a disqualifying offence. Paragraph 1(k) specifies that an offence under section 81 of the Crimes Act 1900 is a disqualifying offence. The applicant was not convicted of these offences and is therefore not disqualified and pursuant to section 14(1) (b) he is subject to an assessment requirement.

33. 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.

34. Section 18(2) states:

(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.

35. 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) of the Act).

36. Part 4 of the Act deals with reviews and appeals. 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 check clearance. Those matters mirror those listed in s 15 of the Act, that the Children’s Guardian may consider in conducting a risk assessment:

Determination of applications and other matters

37. The Tribunal must consider the following in determining an application under this Part:

1. (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,

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

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

4. (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,

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

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

7. (g) the person’s present age,

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

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

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

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

38. Sections 15 and 30 were amended by the Child Protection Legislation Amendment Act 2015 (the Amending Act). BXU’s application is not affected by those amendments as it was made before the date those amendments came into effect, 2 November 2015: cl 26 of sch 2 to the Amending Act.

39. An applicant must fully disclose to the Tribunal any matters relevant to the application (s 27(4)).

40. 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 vV[2002] NSWSC 949 at [42] concerning the word “risk” in the now repealedChild 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’.

Administrative Review

41. In undertaking the task of determining the “correct and preferable decision”, the Tribunal “stands in the shoes of” the Children’s Guardian and may exercise all of the functions conferred on the Children’s Guardian: s 63(2) of the Administrative Decisions Review Act. As noted, pursuant to s 15(4) of the Act, the Children's Guardian may consider a number of matters when conducting a risk assessment. The Tribunal is explicitly required to consider a similar list of matters when determining an application for review: s 30(1). Both sections are relevant to the Tribunal's determination, although as noted they are substantially the same: BJB v NSW Office of the Children's Guardian (No 2)[2014] NSWCATAD 164 (BJB no 2) at [49].

42. Neither party bears a burden of proof in establishing that the decision was, or was not, “the correct and preferable” decision: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40]; BJB (No. 2)at [32]. However, a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Ministerfor Capital Territory(1979) 2 ALD 303; Holbrook and Australian Postal Commission(1983) 5 ALN N46.

43. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs vPochi(1980) 4 ALD 139; BJB No. 2 at[32].

44. However, the ultimate issue is not whether a particular allegation has been proved or not proved. This is subservient and ancillary to the ultimate issue: whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children. It is well-established that the Tribunal’s approach to this issue will be, with the necessary changes being made, similar to that taken by the High Court in M v M[1988] HCA 68; (1988) 166 CLR 69 at [19]–[25] in the context of a family law application for access: see, for example, BKE v Children's Guardian[2015] NSWSC 523 (BKE) per Beech-Jones J. In that case, His Honour stated (at [33]):

... it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

45. Accordingly, even where the Tribunal is not satisfied that the relevant allegation is proved, it may nonetheless conclude that there is a real and appreciable risk to the safety of children.

Section 30 considerations

(a) the seriousness of any matters that caused a refusal of a clearance to be given to BXU

46. The criminal charges regarding Complainant 1 concerned three separate instances of offending.

47. Criminal charges 1 and 2 concerned the alleged anal penetration of Complainant 1 at BXU’s residence in May/June 1981. Complainant 1 was at the time allegedly under the influence of alcohol provided by BXU.

48. Criminal charge 3 concerned BXU allegedly performing oral sex on Complainant 1 at BXU’s residence in July 1981. Complainant 1 was allegedly under the influence of marijuana earlier provided to him by BXU.

49. Criminal charge 4 concerned the alleged anal penetration of Complainant 1 at BXU’s residence in October 1983 about a week after Complainant 1’s 18th birthday. Complainant 1 was allegedly under the influence of pain medication earlier provided to him by BXU.

50. The offence alleged by Complainant 2 concerned anal penetration and indecent dealings. It was allegedly committed following Complainant 2 consuming alcohol with BXU at a dinner to celebrate Complainant 2’s birthday.

51. The matters that caused the refusal of the working with children check clearance are serious. They involved a serious breach of trust and the repeated nature of the conduct elevates its seriousness.

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

52. The conduct occurred between 1981 and 1983 with the last alleged offence occurring in December 1983 nearly 32 years ago.

52. Since then BXU has had no known criminal offences or employment issues apart from a drink driving conviction in 2004. There is no evidence before the Tribunal of any conduct which could be considered ‘adverse’ to the applicant since the last alleged offence in 1983.

53. From 1983 to 1998 BXU worked in a number of different positions including as a counsellor and in managerial positions in what were then known respectively as the Department of Youth and Community Services and the Department of Juvenile Justice. Following his resignation from the public service in March 1998 he ran a small retail business for approximately two years. Following the closure of that business he worked as a Consultant Psychologist and in a managerial role in a non-government organisation. He has been employed in his current position with a government agency since 2009 where he is responsible for conducting assessments of individuals to determine their eligibility for government benefits. This role does not involve ongoing case management of these individuals once the assessment of eligibility is completed. BXU’s evidence is that he currently does not perform assessments of individuals under the age of 18 subject to the outcome of his application. He also says that if his application is successful he will again be required to carry out assessments on minors between the ages of 16 and 18 but that the overwhelming majority of the assessments he would be required to carry out would continue to be on adults.

54. In support of his application for a working with children check BXU relied upon a number of written character references. Two of these references are from current work colleagues of BXU provided in 2015. Each of these referees state that they are aware of the alleged criminal offences and disciplinary breaches by BXU. These referees do not expressly state they are aware that BXU has admitted he had a consensual sexual relationship with Complainant 1. Both referees state that BXU has always behaved in an appropriate and professional manner towards clients. One of the referees refers to BXU having complied with the workplace code of conduct and ethics and states that in the five years she has worked with BXU he has “never demonstrated any inappropriate behaviour or abuse towards children.”

55. Three character references provided in respect of BXU’s 2009 working with children check application to the Commissioner for Children and Young People were also in evidence. These references included one from a Clinical Psychologist who knew BXU in the Psychologist’s professional capacity as the Manager of a youth refuge and group home in the first half of the 1980s. He said at that time BXU’s behaviour towards young people with whom he worked was within appropriate limits and that BXU was held in high regard by himself and other professionals. He acknowledges that he is aware that BXU has admitted a brief consensual sexual relationship with Complainant 1 who was at the time an adult. A reference from BXU’s manager at the non-government organisation at which he worked for four years, indicates that the manager supervised BXU in his oversight of programs for gay teenagers and adults. The manager indicates that BXU “conducted himself with propriety and displayed the utmost professionalism at all times.”

(c) The age of BXU at the time the offences or matters occurred

57. At the time of the alleged offences BXU was aged between 27 and 29 years.

(d) The age of each victim of any relevant conduct at the time they occurred and any matters relating to the vulnerability of the victim

58. Complainant 1 was aged 15 at the time of the alleged criminal offences set out in in these reasons at paragraph 13 sub-paragraphs i to iii. He was receiving counselling and support from BXU at a youth centre to which he had been referred as a result of his detention at a juvenile detention centre. Complainant 1 was 18 years old at the time of alleged criminal offence iv.

59. Complainant 2 turned 18 on 20 December 1983. The alleged disciplinary breaches set out in these reasons at paragraph 17 sub-paragraphs iii and iv are said to have occurred “on or about 20 December 1983.” Complainant 2 was young and still under the professional supervision of BXU. In evidence before the Tribunal were reports from a Psychiatrist at St John of God Hospital dated 29 December 1982 and a report prepared by BXU for the Children’s Court in relation to Complainant 2 dated 12 August 1983. The report of the Psychiatrist refers to Complainant 2 as having Conduct Disorder associated with Depressive Neurosis. In the report by BXU he refers to Complainant 2’s history of mental health, serious family conflict, family dysfunction and suicide attempts.

60. The Tribunal accepts that at the relevant time both complainants were very vulnerable individuals by virtue of their involvement with the juvenile justice system.

(e)The difference in age between the victim andBXUand the relationship (if any) between the victim andBXU

61. BXU is approximately twelve years older than both Complainant 1 and Complainant 2. At all relevant times Complainant 1 and 2 were young and were in a professional relationship with BXU who was providing them with counselling, supervision and support in his role at a youth centre.

62. There existed at the time of the relevant events a very significant power imbalance in the relationship between BXU and the complainants.

(f) WhetherBXUknew, or could reasonably have known, that the victim was a child

63. BXU was a counsellor and was involved with Complainant’s 1 and 2 in the capacity of providing counselling, support and supervision in relation to their involvement with the juvenile justice system. He had access to their juvenile justice records. The Tribunal accepts that he was aware of the ages of both complainants at the relevant times.

(g) BXU's present age

64. BXU is now 61 years of age.

(h)theseriousness of the person's total criminal record and the conduct of the person since the offences occurred

65. BXU has no criminal record apart from a conviction for drink driving in 2004.

66. Since the relevant events, the applicant has held managerial roles in juvenile justice organisations, as a Psychologist, as a manager in a non-government organisation and as an assessor for a government agency determining eligibility of individuals for government benefits. There is no evidence of any adverse conduct on the part of the applicant since the relevant events of over 30 years ago.

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

67. In regard to the likelihood of any repetition by the person of the offences or conduct alleged, the Children’s Guardian submitted that regard should be had to the following matters concerning the applicant’s relationship with Complainant 1. These matters included the applicant’s admission of a brief sexual relationship with Complainant 1 after Complainant 1 had turned 18 and the applicant’s admission that Complainant 1 had been to his home and borrowed money from him. The applicant’s response to the disciplinary breaches recorded in an interview during the disciplinary investigation included a statement that he was not aware of anything in the past or present Code of Conduct to the effect that a relationship with a past client was inappropriate and this was also said by Counsel for the Children’s Guardian to be a relevant matter.

68. In his 1998 responses to the alleged disciplinary breaches concerning Complainant 1 the applicant is said by the Children’s Guardian to have demonstrated no insight into concerns that arose about his relationship with Complainant 1. Those concerns include the applicant’s knowledge of Complainant 1’s disadvantaged background, the circumstances of him meeting Complainant 1 in the context of a professional relationship to provide him with counselling, supervision and psychological support and the applicant being in a position of trust and responsibility in relation to Complainant 1.

69. In relation to the nature of the relationship between the applicant and Complainant 2, Counsel for the Children’s Guardian submitted that the following matters were relevant. The applicant’s exchange of letters with him and the personal nature of some of the content of these letters. These personal remarks include comments such as “It would seem my attempt to be open and honest with you has only resulted in you again playing games that resolve nothing. The current situation needs to be worked out and this requires your involvement,” and “ Sure there have been some difficult times, but I would happily go through those times again for the gift of knowing and sharing part of my life with you.” These letters were signed “your friend BXU” and “Love BXU.” Counsel for the Children’s Guardian submits that these letters are suggestive of someone deliberately cultivating emotional intimacy with a young vulnerable individual without appropriate regard to the professional boundaries that ought to be maintained in such a relationship.

70. In his evidence to the Tribunal the applicant stated that he was naïve and lacked judgment about the need not to blur professional boundaries when he wrote the letters to Complainant 2 and in also allowing Complainant 1 to visit his home. The applicant said that in hindsight he believes his actions in allowing Complainant 1 to visit him at his home would have “confused” Complainant 1 and that the applicant’s “lack of boundaries at the time wasn’t helping” Complainant 1. In relation to the sexual relationship between him and Complainant 1, the applicant said that at the time he was struggling with his own sexuality and he had not openly declared himself as gay. He said he is a very different person today to the person he was at the time of these events. He told the Tribunal he is now comfortable with his sexuality and no longer fears being “outed” as he did at the time of the relevant events. He said he now fully appreciates that commencing a sexual relationship with Complainant 1 was highly inappropriate even though on his version of events Complainant 1 was no longer a client and had turned 18.

71. The applicant said the letters in evidence which he wrote to Complainant 2, were written as he thought they would be helpful in his attempts to support Complainant 2 but he is now aware they were very inappropriate. He stated he is aware of the need not to blur professional boundaries in the way that he did in those letters. He said that he accepted his actions in writing the letters were likely to have confused Complainant 2 and “were not at all helpful” to Complainant 2. He explained that he understood the need for professional boundaries so that people feel safe in a professional relationship. He said his choice of language in the letters he wrote to Complainant 2 was inappropriate and should have been in “much more professional language.” He also acknowledged that it was inappropriate to have made personal comments such as “ really miss seeing you and sharing time and life with you.” The applicant acknowledged to the Tribunal that he was motivated at least in part by wanting to have some sort of ongoing friendship with Complainant 2 but fully recognises now that this was inappropriate given his role as Complainant 2’s counsellor and that this was not in the best interests of Complainant 2.

72. The applicant denied that he ever discussed his sexuality with Complainant 2 as is alleged by Complainant 2 in material before the Tribunal. However he freely admitted in cross examination by Counsel for the Children’s Guardian that there was a power imbalance in the relationship between he and the Complainants and that he now accepted he had completely blurred the professional boundaries by cultivating friendships with both Complainants. The applicant conceded that at the time of the disciplinary action against him his responses to the inquiry were highly defensive. He said that he now appreciates that it was inappropriate not to make concessions regarding the professional boundary violations in his relationships with both complainants. He said at the time he “had just come out of the criminal prosecution” and was guided by the advice he received from his Union to develop a defensive strategy to the disciplinary investigation.

73. The applicant said since the time of the relevant conduct he has reflected on his actions and has learned by the mistakes he made in not observing proper professional boundaries with Complainant 1 and 2. He said he has for many years now approached his work in a very different manner both in maintaining appropriate professional boundaries and in placing the interests of clients as the paramount consideration in his professional relationships with them. He said he sought assistance from a Psychiatrist in 1996 in dealing with the allegations and criminal charges he was facing and in particular coping with the significant stress he was under at the time. He has not otherwise sought professional assistance. He undergoes annual mandatory continuing professional education to maintain his registration as a Psychologist.

74. There is no doubt that the applicant failed to maintain appropriate professional boundaries in his relationships with Complainants 1 and 2.

75. The Tribunal accepts that this experience has had a significant impact on the way that the applicant has behaved since the relevant events and the way he intends to behave in the future. The Tribunal accepts that as a consequence of reflection the applicant has developed a greater insight into why his conduct was inappropriate and the ways in which it posed a risk to children. The Tribunal was satisfied that it was highly unlikely that the applicant will repeat the kind of conduct in question.

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

76. The applicant denies that he had non-consensual sex with Complainant 1. He has consistently admitted that he had a consensual sexual relationship with Complainant 1 after he had turned 18 and was no longer a client of the youth centre. He said that there were two sexual encounters between him and Complainant 1. The first occurred after Complainant 1 attended the applicant’s home and told the applicant he had been involved in a bike accident. This was not the first time that Complainant 1 had been to his home. The applicant said that Complainant 1 had visited his home on a couple of occasions and they had coffee and he then left. He cannot recall whether he had invited him to his house or he had just shown up. On the day of the bike accident Complainant 1 had a shower at the applicant’s home then complained of being sore and asked the applicant to give him a massage. This led to them having oral sex which the applicant said was consensual. A couple of weeks later Complainant 1 again attended the applicant’s home and they again had oral sex.

77. The applicant has consistently denied that there was ever any sexual relationship between him and Complainant 2 or any sexual activity of any kind between them. The applicant notes that the disciplinary matter was resolved by way of a settlement as there were concerns about the reliability of both Complainants. As set out earlier in these reasons the applicant admitted that he had failed to maintain appropriate professional boundaries in his relationship with both Complainants.

78. As referred to earlier in these reasons the applicant relies upon a number of written references in support of him being granted a working with children clearance. These include references from work colleagues and one from a former direct supervisor/manager of the applicant. These references are of significance primarily because they indicate the referees have no knowledge of any adverse conduct by the applicant since the relevant events.

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

79. Counsel for the Children’s Guardian submitted that the behaviour to which the applicant has admitted in having a sexual relationship with Complainant 1 and failing to maintain appropriate professional boundaries with Complainant 1 and 2 cannot be characterised as trivial conduct and ought to be regarded as serious.

80. It is submitted that the applicant poses a risk to children and that the Tribunal cannot be satisfied the behaviour is unlikely to be repeated in the future. The Respondent submits that the correct and preferable decision is to refuse the working with children clearance.

Conclusion and Orders

81. In this matter, the role of the Tribunal is to review the decision of the Children’s Guardian to refuse the applicant a working with children check clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable law.

82. The applicable law includes the Child Protection (Working with Children) Act, which provides that the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the applicant poses a risk to the safety of children.

83. It is now 32 years since the last of the events in question. The Tribunal recognises that there is no evidence that the applicant has engaged in any further sexual misconduct or other inappropriate conduct with clients other than the matters that formed part of the criminal and disciplinary investigations. Furthermore, the Tribunal takes into account that the criminal charges against the applicant were dismissed as the Director of Public Prosecutions (DPP) offered no evidence and the applicant was awarded costs. The Tribunal understands that this is due to disparity in the evidence about the dates and places of the allegations not corresponding and general concerns about the credibility of Complainant 1. The DPP noted that the applicant had maintained that he had a consensual relationship with Complainant 1 after he had turned 18 and there was further evidence to suggest that the victim had distorted the facts to have the applicant dismissed from his position. The DPP’s assessment was that the case could not be proved to the requisite criminal standard beyond reasonable doubt.

84. Disciplinary proceedings against the applicant were settled, according to an Interim Bar Summary Report completed on 1 August 2014 by the Children’s Guardian, on the advice of Counsel for the government department. This advice was to the effect that there were concerns about the reliability of Complainant 1 and the emotional wellbeing of Complainant 2 if he was required to give evidence and be subject to cross-examination.

85. The Tribunal is not tasked with determining the guilt or otherwise of the applicant in relation to the allegations of criminal offences and disciplinary breaches. It can be satisfied on the basis that the circumstances surrounding a particular incident or course of conduct means there is a risk to a child, or that the existence of risk has not been disproven.

86. That it seems unlikely in the foreseeable future that BXU will have other than minimal direct unsupervised contact with children in paid or voluntary employment is largely irrelevant to the assessment of risk.

87. The Tribunal accepts that at the time of the relevant events BXU was naïve. He lacked the knowledge which he ought to have had in his role as a counsellor for vulnerable young persons of the need to maintain appropriate professional boundaries. The Tribunal is satisfied however that BXU now has real insight into the gravity of his behaviour and sincerely regrets his actions and their likely adverse impact on the two complainants. The Tribunal accepts that he has learned from his actions at considerable personal cost.

81. The evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.

82. In all the circumstances, the correct and preferable decision having regard to the material before the Tribunal is that the applicant does not pose a risk to the safety of children and should therefore receive a Working with Children check clearance.

83. Accordingly the Tribunal orders as follows:

1. The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is set aside and a decision substituted that the Respondent grant the applicant a working with children check clearance authorising the applicant to engage in paid and unpaid child-related work.

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

Registrar

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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: 23 February 2016