BXW v Children's Guardian

[2015] NSWCATAD 266

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXW v Children’s Guardian [2015] NSWCATAD 266
Hearing dates:	8 September 2015
Date of orders:	17 December 2015
Decision date:	17 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member M Bolt General Member
Decision:	(1) The decision of the respondent is set aside. (2) The respondent is to grant the applicant a working with children clearance.
Catchwords:	WORKING with children – Protective jurisdiction – child protection – workplace finding – inappropriate behaviour – allegations of grooming – professional boundaries – whether applicant poses real and appreciable risk – safety of children – admissibility of evidence – weight
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
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 M v M [1988] HCA 68; 166 CLR 59 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Category:	Principal judgment
Parties:	BXW (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: P Singleton (Applicant) V Hartstein (Respondent)   Solicitors: Messrs McPhee Kelshaw (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510337
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

1. The Applicant in these proceedings is referred to as "BXW". BXW is the applicant's pseudonym used in these proceedings.

2. On 25 June 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

3. The jurisdiction of the Tribunal under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

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.

4. These proceedings arise because on 11 May 2015, the Children's Guardian made a decision to refuse to grant BXW a Working with Children Check clearance. On 9 June 2015 the applicant BXW applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

5. On 14 April 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant now requires a Working with Children Check clearance in order to be re-employed as a school teacher.

6. The applicant has worked as a school teacher for almost 25 years. During that time he has obtained the educational requirements to teach in schools in New South Wales and in more recent years has done some training (as required of teaching employees) on an ad-hoc basis relating to child protection, student welfare and similar areas. These courses having been introduced since the strengthening of what may be referred to as ‘child protection provisions’ following significant reforms in the late 1990’s and continuing.

7. The applicant has worked in a number of schools, (including Government schools), but for the purposes relevant to these proceedings, his recent experience relates to employment in ‘non-government’ or independent schools, and these schools were secondary schools.

8. The applicant (like all teachers) has been subject to child protection requirements as a school teacher working with children. These requirements have been mandated under the former Child Protection (Prohibited Employment) Act 1998 (the former Act) and the current Act, the Child Protection (Working with Children) Act 2012.

9. In late 2008 the applicant obtained a teaching position at an independent high school. The circumstances which lead to seeking that appointment arose from the applicant having been dismissed from his previous employment at a High School, on the basis of an adverse finding following an internal investigation. The circumstances of that dismissal concern the major basis for the current adverse risk assessment by the respondent against the applicant.

10. The appointment in late 2008 required a working with children check under the former Act. For a number of reasons not relevant to these proceedings, that check was not completed until early 2011. The material before the Tribunal indicates that notwithstanding a consideration of the earlier investigation and findings that check concluded that the estimate of risk showed that there was no particular risk relating to the applicant’s personal history.

11. Due to changes to the working with children provisions, applicants were required to reapply for clearances and the applicant made a fresh application in late 2013. There was also some submission / evidence that the applicant who was seeking a fresh position requiring a fresh clearance. During the period from late 2013 until March 2015 the respondent considered the applicant’s application. In early 2014 the respondent put the applicant on notice that they had identified matters which required the conducting of a risk assessment. The respondent contacted (or attempted contact) with the applicant on approximately 22 occasions in order to obtain information and a response to various issues which in their view were relevant to the risk assessment. In March 2015 the respondent notified the applicant that they proposed to refuse his application for a clearance.

12. On the day that the applicant was advised of the Notice of Proposed Refusal of Application, the applicant advised his employer of that matter. The following working day the school modified the applicant’s duties so that he would not be teaching children directly, and he remained on full pay. On 11 May 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

13. As a result of the refusal of the clearance the applicant is unable to engage in child related employment. Later that month the applicant resigned from his position at the school.

14. On 9 June 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are that ‘The applicant does not pose a risk to the safety of children’. There is no dispute that the application has been lodged within time.

15. The issue now to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

16. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

17. 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. (See section 4 of the Act).

18. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. A breach of section 8(1) is an offence.

19. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

20. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant poses a risk to the safety of children.

21. Section 18(2) provides that 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.

22. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

23. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a working with children check clearance (see section 27 (1)). The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) ………...

(3) ………...

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

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

24. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

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.

Burden of Proof

25. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

26. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

27. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

28. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

29. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 24 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

30. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but 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". ...'

31. These observations of Young CJ (in Equity) have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

32. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

33. The primary issue before the Tribunal in this application as outlined at paragraph 15 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: section 63 Administrative Decisions Review Act 1997.

The Hearing

34. The applicant's application was heard on 8 September 2015. He has been legally represented in these proceedings. At the conclusion of the hearing the Tribunal reserved its decision.

35. As outlined above, there is no presumption under section 27 of the Act that the applicant poses a risk to children as the applicant is not a disqualified person (seeking an enabling order) under the Act. This application is for a clearance under section 18 (2) of the Act.

36. A significant aspect of the initial hearing time concerned the admissibility of material which the respondent sought to tender. The applicant’s Counsel objected to a number of documents produced pursuant to section 58 of the Administrative Decisions Review Act 1997 (the ADR Act), as well as aspects of sworn material which the respondent sought to rely upon. After significant arguments and oral submissions were put before the Tribunal, and following the evidence of the first witness for the respondent, the Tribunal marked up all the evidence tendered or proposed to be relied upon, and delivered an ex-tempore decision on admissibility and weight. That decision (whilst excluding some prejudicial material), allowed the tender of the majority of the material that had been filed and served, having regard to the provisions governing the Tribunal, and the protective nature of the jurisdiction.

Applicant’s Evidence.

37. The applicant gave oral evidence at the hearing. The applicant’s evidence was that up until the time of the bar, he had been employed as a teacher since 1988 other than a short period following his dismissal in 2008. He has also been a volunteer Sunday- School teacher in his faith for some 33 years. When asked, the applicant saw himself as an enthusiastic teacher.

38. The applicant was asked about his behaviour when accompanying a year 12 class on an overseas trip to Europe, and how wether in his view he crossed a boundary with a particular student, and the ensuing contact over some months once back in Australia. The applicant agreed that he had crossed a boundary and that the consequences were negative and especially so towards the student.

39. These matters referred to in paragraph 38 (above) concern the incident which ultimately lead to the applicant’s dismissal from the teaching position in 2008, and formed the major aspect of the respondent’s risk assessment and subsequent decision. The matters were subject of an independent investigation commissioned by the school / employer that concluded with a positive finding against the applicant. It is necessary to summarise the 2008 incident in order for the evidence to be read in an appropriate context.

40. By way merely of summary, in early 2008 the applicant was the head or lead teacher who (with a small number of colleagues) accompanied a Year 12 elective subject class on an overseas trip to southern Europe. The class (and school) was a single sex independent school catering for girls. The applicant was the sole male teacher on the trip and the other teachers were female. The applicant had a close teacher student relationship with the student. During the trip there were a small number of instances when the applicant and the student spent time together (away from their peers). One instance involved an evening swim where no other students wished to attend, and another involved a long ‘one on one’ discussion between the applicant and the student in the evening. The first instance occurred in a public place and the second instance occurred in the Hotel foyer / lobby or similar place which was open and accessible to all of the guests. The practice was that teachers and students had access to each other’s mobile telephone numbers (for safety reasons) whilst away. The applicant and the student continued e-mail and Special Messaging Service (SMS) contact for some months after their return to Australia. The applicant had commenced private tutoring of the student (at her father’s request), and had met her out of school hours when accompanying his own son.

37. The applicant’s evidence was that having now reflected on matters relating to the overseas trip and his ongoing contact with the student he realised the psychological harm and emotional damage that could have resulted for the student.

38. In cross examination the applicant was asked about his child protection training. He confirmed that he did a course in 2007 (prior to the matter concerning the student). However in his evidence he stated that the focus of the 2007 course was slanted towards reporting children believed to be at some form of risk. The applicant however admitted that his training had addressed how to look after students’ welfare and wellbeing.

39. The respondent’s position was that the applicant had become involved personally with the student and this was not only inappropriate generally but also a breach of the applicant’s then employer’s policies. He was questioned as to whether he understood that the student had been teased by her peers about the ‘relationship’ with the applicant and the ensuing emotional damage. The applicant agreed with that characterisation and clarified that this would have been especially so in the weeks prior to the termination of their contact.

40. The witness was asked about his understanding of where the responsibility lay in respect of child protection and boundary issues. He agreed that it was always the teacher’s professional responsibility and not the student’s.

41. There were a large number of communications between the applicant and the student and these were provided by the respondent as part of their material. The records were of SMS and e-mail exchanges. In cross examination the applicant agreed that his interactions with the student crossed or breached professional boundaries and as a result the interactions were not professional.

42. The applicant was questioned about the tutoring of the student. This arrangement had been made between the applicant and the student’s father (at the father’s initiation) sometime after the end of the overseas excursion / tour. The Tribunal notes that the father was unaware of the matters subsequently identified in the independent investigation, when he made the tutoring arrangement. The respondent questioned the applicant about why the after- hours tutoring took place in a classroom and not the library. The applicant gave cogent reasons in his answer as to the reason for that arrangement, being that the when the sessions would start the library was still being used by other classes. The applicant kept the door open in the classroom.

43. The applicant was questioned about an incident where he touched the student on her hands and put his arm / arms around her shoulders. His evidence was that this was only as a greeting and happened on one or two occasions.

44. There were other incidents of face to face contact between the applicant and the student, and the applicant was questioned about these. Some instances related to meeting the student (in the company of other students), where a lift home was offered but declined. Another occasion related to when the applicant was at the school on a weekend and the student contacted him to advise that she was at the public library nearby and could he come and meet her. On an occasion at that library (in the presence of his son) he met the student. He was asked whether on that occasion he kissed the student on the cheek and hugged her. The applicant answered that this was a greeting.

45. The applicant was questioned at length about SMS (text) messages between himself and the student. There was some discussion and dispute in the hearing about the exact content of the messages, what was specifically being put to the applicant about the messages, and what the text responses were. Suffice to say that the applicant agreed that he exchanged personal information with the student. However the applicant was consistent in his evidence that irrespective of the appropriateness (or otherwise) of the content that he authored, his digital exchanges were entirely re-active to matters initiated by the student.

46. Whilst the respondent submitted in cross examination that the references to responding (in the applicant’s evidence) was because he was trying to blame the student, this was disputed by the applicant. He gave evidence that such an interpretation was not what he intended.

47. The applicant accepted that the e-mail and SMS contact was not within the professional boundaries that he should have adopted with the student.

48. A further line of questioning concerned the overseas excursion / tour. There was evidence concerning that all the students called the applicant ‘Dad’ during the trip, as he was the only male teacher on the trip. Whilst much questioning focused on the over familiarity between the student and the applicant on this trip, and that she also called him ‘Dad’, there was evidence that this practice occurred because it was initiated on the tour and was not resisted and stopped by the applicant and / or the other chaperoning / supervising teachers. Other students called the applicant ‘Dad’ and part of his evidence was that some students did this in jest.

49. Questions were asked about the lack of boundaries and professional judgement exhibited by the applicant in permitting some of the exchanges and interactions with the student to occur and persist.

50. In evidence the applicant was questioned about matters concerning overseas student trips in his employment at his most recent school position. That related to whether students called the applicant ‘Dad’ during these tours. The applicant admitted this was the case but denied that he allowed or encouraged it. The applicant explained that part of the situation (in his view) arose from a pre-trip initiation with the students and the parents where they discussed what the students could call the teachers. His evidence was that ‘Dad’ was never discussed.

51. The applicant agreed that the calling of him ‘Dad’ by female students during these tours, and not putting a stop to the practice was an error of judgement on his part.

52. The Expert Witness C Hare Forensic Psychologist gave evidence at the hearing. A report had been prepared by the witness dated 25 June 2015 which was tendered by the applicant in evidence. That report concluded that:

… the applicant’s risk to children’s safety is minimal and currently commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child. (para 42 Report 25/6/2015)

57. The witness was questioned about matters in an affidavit tendered as part of the respondent’s evidence. (An affidavit of the most recent teaching employer of the applicant – Ms C). The witness agreed that had she considered Ms C’s evidence in preparing her report that would have changed her assessment. The witness advised that she would have written her report differently had she been aware of the relevant admitted material from Ms C’s affidavit and oral evidence.

58. When question about those potential changes to any assessment the witness indicated that she would re-question the applicant about certain matters (relating to possible minimising behaviour), however in respect of current total risk, the witness was unsure as to where she might come to on the eventual risk assessment. In that regard she was unable to indicate whether her opinion and conclusions would differ from the current report.

59. The applicant’s witness ‘D.M.’ gave evidence. The witness was asked about his knowledge of the circumstances of the students referring to the applicant as ‘Dad’ on overseas tours. He advised that he would not allow it personally but noted that some of the students referred to female teachers as ‘Mum’.

60. The witness was questioned about a reference they wrote for the applicant. The witness was asked whether he stood by the reference now that he had gained a further insight into matters relating to the applicant since the reference was written. The witness answered yes.

61. Following further questioning his evidence was that to some extent he was surprised about the totality of the findings in respect of the independent investigation. His evidence was that he still stood by the applicant’s skills abilities and dedication, but would need to think carefully about other committing to other aspects due to the findings against the applicant. Ultimately however his evidence was that he would (if asked) seek advice before committing to a reference in the future.

62. The final witness for the applicant (Dr J.P.) gave evidence. The witness was asked about whether the SMS information (which had recently been provided to him), would cause him to change anything in his character reference. The witness said that it did not change his position.

63. Under cross-examination the witness indicated that he had never witnessed or experienced any of the behaviour that amounted to ‘grooming’ or similar inappropriate boundary crossing or similar behaviour from the applicant with children.

64. Two other witnesses for the applicant were not required and the respondent was content for the Tribunal to place whatever weight it wished on their material.

The Respondent’s evidence

65. Ms ‘C’ gave evidence on behalf of the respondent. In oral evidence the witness was taken to her sworn statement of 25 August 2015. Prior to her evidence the applicant’s Counsel sought to exclude parts of Ms C’s statement. Ms C was the applicant’s most recent Principal and gave evidence about her knowledge and actions concerning the applicant leaving that position in the first half of 2015.

66. Ms ‘C’ was questioned about her knowledge of the applicant raising the issue with her concerning the proposed refusal of a Working With Children clearance. The witness’s evidence was that the matters concerning his bar and dismissal from the position in 2008, when raised with her by the applicant were referred to by him as being ‘that these were not serious matters.’. There was argument during the witness’s evidence concerning how the applicant had characterised the previous dismissal circumstances, and what steps Ms ‘C’ took in respect of ascertaining the conduct of the applicant during his time with her School.

67. Whilst there was continuing argument as to what was subsequently identified during the applicant’s employment under Ms ‘C’ and her predecessor, there was agreement that matters were identified for which Ms ‘C’ sought advice about.

Section 30 (1) considerations

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

68. The applicant’s application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. That adverse risk assessment is predominantly concerned with a workplace investigation conducted in 2008. The particulars of the allegations are characterised as an improper relationship leading to a consideration of behaviour which may constitute grooming. There are no offences standing against the applicant, rather the adverse assessment following consideration of those matters.

69. The matters are summarised at paragraphs 38-40, 45-48 and paragraph 52 (above). The evidence was that the student suffered emotional harm as a result of the behaviour. Whilst the respondent submits that the findings of the workplace investigation are serious, the applicant submits that the matters fall towards the lower end of the scale of seriousness under the Act.

70. In our view the allegations (when looking at the circumstances that they arose) are serious when one has regard to the child protection regime.

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

71. The matters occurred in 2008 which is 7 years ago. The applicant submits that as this is beyond the 5 year period referred to in section 21 (1) of the Act, some weight can be attributed to this period to the applicant’s benefit.

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

72. The applicant was born in 1964 and was 43 to 44 when the inappropriate engagement / grooming 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.

73. The victim (the student) was 16 to 17 when the inappropriate engagement / grooming occurred. The victim was in the care / authority of the applicant. The respondent submits that this position was further dependent in that the applicant’s (and other teacher’s roles) were to assist with the basic care and emotional well-being. The applicant submits that notwithstanding the inappropriateness of his behaviour and the outcome, the applicant did not exploit the applicant as he was trying to properly support her, but this caused him to cross the relevant professional boundaries.

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

74. The difference in ages was approximately 26 to 27 years. The applicant says that whilst this counts against him, the lack of any deliberate exploitation (as per 73 above) rather indicates that his attempts at support were properly motivated. The respondent submits that this argument is not open to the applicant as he knew that the communication, the terms used and the continuation of same was inappropriate. The respondent’s submission was that knowing all of this his inappropriate behaviour continued.

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

75. It is clear that the applicant knew that the victim was a child. The victim was a year 12 student taught by the applicant.

(g) The person's present age.

76. At the time of the hearing the applicant was 50 years of age. In our view after considering the view that the propensity for offending (not of a property nature) recedes with age after middle age, this factor stands in a minor way to the applicant’s benefit.

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

77. The applicant does not have a criminal record.

78. Whilst there was some discussion in the hearing about any evidence of a continuation of inappropriate behaviour between 2009 and 2015, no determinative findings were made or put to the Tribunal about similar allegations of permitting female students on overseas trips to call teachers (and the applicant) ‘dad’. In our view these matters stand in the applicant’s benefit when considering whether he poses a real and appreciable risk.

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

79. The applicant submits that there is no likelihood of any repetition. The applicant notes that such conduct is at the lower end of the scale so any reoccurrence would in all likelihood have a minimal impact.

80. In the respondent’s view there is a real likelihood of similar behaviour. Reference is made to the alleged continued use of the term ‘Dad’ by students. The respondent’s submission on this point seem to imply that the applicant continues to have a lack of insight into his behaviour and may be attempting to minimise the undisputed behaviour. Whilst the insight of the applicant was in our observations a ‘live issue’ during the proceedings, in our view aspects of this were magnified by the applicant’s manner of giving oral evidence and his somewhat truncated and limited answers to cross examination. However after having regard to the totality of his evidence, and in particular the manner of his engagement and answers to the Forensic Psychologist, in our view no adverse inference or finding should be drawn about the manner of the applicant’s oral evidence.

81. The respondent raises the Forensic Psychologist’s conclusions in their submissions on this point. Whilst it is fair to state that her opinion was that the applicant was a low risk of sexually harming a child, the Act is not just concerned with sexual harm, but any harm to a child.

82. Whilst we agree with this assessment, and noting that the report provided an opinion along those lines, a further opinion was given other than solely an opinion of the likelihood of sexual offending. Initially on whether (BXW) poses a risk to children the expert witness C. Hare opined that:

As such, I am unable to generate a realistic scenario that would, in my opinion, genuinely heighten the risk of (BXW) engaging in sexual misconduct towards a child in the future.

However, further in the report at the heading ‘recommendation’ the expert stated:

I consider that the risk to children’s safety that (BXW) presents is minimal and currently commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child.

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

83. The applicant tendered a number of references and evidence was given by two authors. The evidence of ‘D.M.’ had the benefit of further material since the making of his written reference. Whilst his evidence was that the documents that he had gained a further insight into matters relating to the applicant since the reference was written, when asked whether he still stood by the reference now, the witness answered ‘yes’.

84. His evidence was that he still stood by the applicant's skills abilities and dedication, but would need to think carefully about other committing to other aspects due to the findings against the applicant. Ultimately however his evidence was that he would (if asked) seek advice before committing to a reference in the future.

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

85. Whilst the respondent has provided detailed written submissions, nothing has been specifically raised other than their contention as to the meaning of aspects of the applicant’s evidence, and the matters that they have submitted in respect of section 30 (1) (i) in particular.

Consideration

86. The respondent submits that the type of behaviour / conduct that the applicant engaged in, is precisely the sort of conduct intended to be caught by the Act. (Resp subs re; s (30 )1) (f) ). We agree that the Act envisages a risk assessment on this type of conduct, and such a situation may lead to the behaviour being ‘caught’ by the scheme. However in our view the reference should not be characterised as ‘trapping’ or holding such an applicant in the ‘barring’ or ‘refusal’ provisions of the Act and Scheme. But rather that the provision is that such persons are subject to a risk assessment. In our view that is as high as the initial language should go. The Act envisages that an applicant who has applied for a clearance, who had had such a finding made (albeit at the civil standard) should appropriately at the time of the current applicant, be subject to a risk assessment.

87. This is not a matter where such an applicant is presumed to be a risk to the safety and well-being of children and young persons.

88. We have carefully considered all of the material before the Tribunal. It appeared uncontroversial that the matter which triggered the risk assessment occurred predominantly in the manner outlined in the report. However in this regard there was a continued ‘live’ issue in respect of the meaning of the manner of the applicant’s text and e-mail responses to the student, and whether the factual matters, concerning the view that the communications were reactive. The respondent maintained the position that this evidence was indicative that the applicant sought to mitigate and minimise his behaviour, or provided a lack of insight on his part.

89. However, notwithstanding the issues with the extent of how the applicant characterised the conduct to both his subsequent principal (Ms ‘C’) and her colleague, and the Forensic Psychologist, in our view, these deficits in his evidence were remedied under cross examination, and re-examination.

86. Whilst it appeared at times that the applicant was a difficult witness to extract testimony from, in our view his evidence was cogent, truthful and broadly consistent at hearing. It is true that his written evidence changed over the preceding months but this can in part be attributed to how he built his legal response to the adverse risk assessment and how he received and responded to legal advice during this period.

87. Whilst it is open to the Tribunal to make a finding on the allegation which was subject to the 2008 workplace investigation, our real task is to consider any material (finding or otherwise), in the context of whether the applicant poses a risk, having regard to all of the material before the Tribunal.

88. We have carefully considered all of the evidence and submissions given, and filed by the parties even if we have not referred to every aspect of it specifically in these reasons. In our view the evidence before the Tribunal, in its totality, establishes conduct which warranted a risk assessment and could give rise to a real and appreciable risk to the safety of children and young persons.

89. However, whilst we make a positive finding on the unprofessional and inappropriate behaviour / grooming allegations, (conduct), in our view there is insufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

Conclusion

94. We am satisfied that during the course of the proceedings, the parties were given a fair hearing and afforded the requisite level of procedural fairness and that there was no denial of natural justice arising from how the Tribunal received the applicant’s case.

95. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, and in particular paragraphs 86 to 92 (inclusive above), we reach the following conclusion.

96. The evidence and material referred to in these reasons does not establish that the applicant poses a real and appreciable risk to the safety of children.

97. Therefore in our view the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

98. In expressing these views above we note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

99. In our view having regard to all of the material before the Tribunal, the applicant does not pose a risk to the safety of children.

100. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian.

Orders

1. The decision of the Children's Guardian dated 11 May 2015 to refuse to grant the applicant a Working with Children check clearance is set aside.

2. In substitution for that decision of 11 May 2015 BXW is granted a working with children check clearance.

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: 17 December 2015