DFV v Children's Guardian

[2018] NSWCATAD 145

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DFV v Children’s Guardian [2018] NSWCATAD 145
Hearing dates:	6 April 2018
Date of orders:	12 July 2018
Decision date:	12 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member R Royer, General Member
Decision:	(1) The decision of the respondent dated 3 October 2017 is set aside.  (2) The respondent is to grant the applicant a Working with Children Check Clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children –– conduct of applicant in period since matters occurred – significant rehabilitation of applicant – risk equal to any member of the community – whether risk real and appreciable
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DFV (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Higgins (Applicant) M Giacomo (Respondent)   Solicitors: Carneys Lawyer (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00317816
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, or persons who were children at the time of the matters referred to or of evidence given and received in the Tribunal hearing or in relation to the proceedings (other than expert witnesses) which is likely to identify those persons.

REASONS FOR decision

Introduction

1. On 26 September 2016 the applicant applied for a Working with Children Check Clearance (WWCC). The Children’s Guardian after conducting a risk assessment of the applicant refused to grant a clearance. That decision was made on 3 October 2017. The applicant applied to the Tribunal for a review of that decision to refuse a clearance. Following a hearing and further consideration of the matter, including the applicant’s conduct in the period since the matters which triggered the risk assessment, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. As a result the applicant does not currently pose a risk to the safety and well-being of children and we have decided that the applicant will be given a Working with Children Check Clearance.

2. The Applicant in these proceedings is referred to as "DFV". DFV is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 4 (below).

3. The applicant seeks a finding by the Tribunal that they do not pose a risk to children and should be granted a Working with Children Check Clearance.

Background

4. On 7 December 2017 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) 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.

5. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 (the Act) is protective and not punitive in nature: Commissioner 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 ss 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.

6. These proceedings arise because on 3 October 2017, the Children's Guardian issued DFV with a Notice of final decision refusing WWCC pursuant to s.20 of the Act. In September 2016 the applicant applied for the clearance. The applicant seeks a clearance for personal reasons but may desire future employment where a clearance is required. At present there were no circumstances before the Tribunal for which the applicant specifically requires a clearance. We note that there is no requirement to establish a basis for any request other than that a person who wishes to engage in ‘child related work’ as defined in the Act requires a clearance.

7. After receiving the application in September 2016 the respondent became aware of a matter in the applicant’s history related to a workplace investigation. That incident met the criteria for a mandatory risk assessment as there was information concerning a matter of the type specified in Schedule 1 of the Act, which concerns ‘Assessment requirement triggers’ referred to in these reasons as the ‘trigger incident’. Section 15 (1) provides for risk assessments in such circumstances:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

8. The specific matter is listed in the Schedule and it concerned a workplace finding by a reporting body of improper conduct involving a child, specified in Sch 1 cl 2 (a) as:

2 Findings of misconduct involving children

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

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

9. The applicant was at the time a High School teacher and the victim referred to in the allegations was a Year 12 student who (it is uncontested) turned 18 part way through the period which the investigation dealt with. In addition the uncontested matters relate to the applicant and the student becoming increasingly close and the applicant developing a relationship of some intimacy with the student.

10. The most significant contested matter was whether sexual activity/relations commenced prior to or after the student turning 18 years of age during the above period. A number of other issues (but nonetheless significant for the purpose of these proceedings) were at times in dispute between the parties, such as the types of contact, number and nature of home visits, the intensity of the behaviour and how grooming behaviour should or could appropriately be characterised or assessed. There was common ground however as to the inappropriateness of the applicant’s conduct at that time.

11. The grounds of the application for administrative review are:

“The decision of the Guardian is not the correct and preferable decision. It is an application made pursuant to section 27 of the Child Protection (Working with Children) Act that the Children’s Guardian made an incorrect determination under section 15 of that Act that the Appellant poses a risk to the safety of children.”

12. The primary issue to be decided by the Tribunal is whether the applicant, on the evidence and material before us, poses a risk to the safety and well-being of children. In addition we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk.

The working with children legislative scheme

13. The objects and purpose of the regime are set out above. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

14. Section 18 of the Act sets out how the Children’s Guardian determines applications.

15. As set out above at [7] the applicant was subject to a risk assessment under Division 3 of the Act. Whilst the Children’s Guardian applies the matters in s 15 of the Act to the application (a list of assessment criteria), the Act states that the matters at s 15 may be considered by the Children’s Guardian. In conducting this administrative review the Tribunal is required to assess the applicant’s risk on the criteria set out at s30 (1) of the Act. Whilst the criteria in s 30 and s15 are almost identical an important distinction between the criteria is that s 30 states that the Tribunal must consider the criteria. (Emphasis added).

Jurisdiction

16. Part 4 of the Act deals with reviews and appeals. Section 27 provides for administrative review of a decision to refuse a clearance. Relevant to these proceedings the section 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) A person whose clearance is cancelled by the Children’s Guardian under section 23 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.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(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.

17. As a preliminary finding we note that the Children’s Guardian has refused the applicant’s request for a clearance and the conditions of s 27(1) are satisfied. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter.

18. As indicated at paragraph [15] above s30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

19. 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].

20. An application pursuant to s 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.

21. 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 s 28 of the Act.

22. 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 s 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". ...'

23. These observations of Young CJ (in Equity) have been followed by the former Administrative Decisions Tribunal, in construing the meaning of 'risk' (as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998) and the Tribunal in considering the meaning of risk in the current Act.

The Hearing

24. The matter was heard on 6 April 2018, with both parties legally represented. Two expert witnesses gave evidence at the hearing, in addition to the applicant. In addition a number of other persons gave written statements in support of the applicant but were not required for examination at hearing. At the conclusion of the hearing the Tribunal reserved its decision.

Written evidence

25. Both parties filed written material in support of the matter. In our view there is a need to provide some detail of that material especially in respect of the asserted rehabilitation of the applicant and related matters. The evidence is also referred in part to the extent that it arises below in our consideration of the mandatory steps. Both expert witnesses prepared reports on behalf of the applicant and there were a number of written statements/references both character and professional as referred to at [24] above. The respondent filed documents in conformity with s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and documents obtained under s-31 of the Act, totalling 584 folios.

26. In addition summons were issued by the respondent and obtained the file notes of one of the experts. These were filed by the respondent as a tender bundle. Both parties also filed detailed written submissions.

Applicant’s evidence

27. Consistent with our view expressed at [25] we now set out some of the evidence in order to provide a proper context to our analysis and conclusions.

Expert Witness 1

28. R. Cumberland, clinical psychologist, gave evidence on behalf of the applicant. The expert had treated the applicant for two periods following the trigger incident. The first period was approximately four months and the second period commenced approximately eight months later and continued for seven months. The report referred to the applicant’s adjustment reaction being a series of reactions to a stressful life event. The evidence indicated that this was a reaction to external (event based) matters, not an internal response based on a pre-existing condition.

29. The witness indicated that the applicant self-referred for treatment. Even if this technically required a G.P. to make the referral the witness stated that the applicant was ‘on the front foot’ in addressing these issues and problems. The witness gave evidence about the applicant’s psychological make-up, and perfectionism traits and the basis for these. Cognitive Behavioural Treatment/therapy (CBT) had been applied and in the expert’s view assisted. The witness gave evidence that the report outcomes were based on a mixture of self-reporting and assessments.

30. In respect of the relationship with the student, the expert stated that there was a clear difficulty at that time in the applicant setting appropriate boundaries. Reference was made to the applicant becoming ‘enmeshed’ in the situation and that enmeshment often has an ‘intoxicating’ side effect which impacts on rational judgement. In response to a suggestion in evidence-in-chief that the applicant felt somewhat ashamed at that time, the expert agreed and added that being a teacher was important to the applicant.

31. This second period of treatment was conducted over 11 or 12 sessions, and then a third period of treatment occurred over the following three months, with some further treatment sessions in the two years following. The applicant had commenced some final treatment in December 2017 (coinciding with the clearance and review process), where the ‘stressful event’ had now become the WWCC process.

32. In cross-examination the witness was asked whether the applicant advised that they were in a romantic relationship with the student. The witness confirmed that no reference to the matter had been made at that time by the applicant. The witness set out what stressors were covered during the earlier sessions, being initially the relationship, the school based investigation and family issues.

33. When asked why the expert did not asses the applicant’s risk in the February 2018 report, the witness advised that she is only qualified to identify risk as a mandatory reporter, and that the issue does not arise (the statutory duty) when an 18 year old student is involved. When asked whether the expert thought that the relationship was inappropriate (teacher and student) the expert advised that there was no evidence of a sexual element and therefore it was not reported by her at the time. The witness outlined in her evidence the actual date that she understood a sexual element to have commenced in the relationship.

34. The Tribunal inquired into the issue of ‘enmeshment’ and asked a number of questions of the witness (s 38(2) NCAT Act). The witness outlined that ‘enmeshment issues’ were not unusual, but never before in her experience had they been associated with a consideration of risk to children. The witness stated that the applicant presented with a relatively low level of pathology. In addition the witness indicated that she realised that the applicant had some bias as the applicant had developed a relationship with the student.

35. In re-examination the witness was asked whether the applicant exhibited any traits consistent with risk to which the witness answered ‘no’.

Expert Witness 2

36. J Pratley Forensic Psychologist provided a report dated 16 August 2016 and gave evidence at the hearing. The witness had provided the report as part of the WWCC application process.

37. In evidence-in-chief the witness was taken to her findings in the report that there are four traits/factors to the relevant sex offenders, and that the applicant does not identify in that group due to a lack of presentation with any of the four factors. [Par 54]. Therefore the Expert confirmed that the risk of sexual offending is low.

38. These factors, (trauma history, poor social-economical functioning, attitudes and cognitions supporting offending against children and criminality factors deviancy and antisocial attitudes) were all drawn from the literature as the applicant does not meet any diagnostic criteria as a relevant sexual offender. The witness explored and expanded on the evidence to support these findings at hearing.

39. In cross-examination the witness was asked what risk she was assessing when conducting the risk assessment. The witness indicated that she was assessing a risk of harm and predominantly sexual harm. Discussion ensued concerning the minimal testing administered during the assessment. Other questions concentrated on what material was before the expert, and it was conceded that she did not have the transcripts of the workplace investigation, the investigation report or a copy of the applicable School Code of Conduct.

36. The witness agreed that risk to children went beyond sexual conduct and that a teacher lying about their conduct created risk. In addition the witness agreed that enmeshment in a relationship between a teacher and a student could cause harm. When questioned about the future chance of enmeshment in a relationship creating a similar harm outcome, the witness advised that due to the applicant’s initial and sustained interventions (through years of counselling treatment), then the present risk was the same as any other member of the community.

37. In re-examination the witness was asked for her understanding of the context or criteria that she was defining ‘risk of harm issues’ within. The witness outlined that she was applying the ‘under 16 test’ and by reference to children she inferred that they were under 16 years of age. We return to this issue at Par [60] below. The witness gave her opinion that the applicant had some insight and continues to have insight into the issues surrounding the general student teacher relationship and what it means.

Applicant’s evidence

42. The applicant adopted their three signed statements in evidence-in-chief.

43. In cross-examination the applicant was asked about their conduct as a teacher. The applicant agreed that there were a number of breaches of the relevant Code of Conduct and accepts that forming a close relationship with an individual student would not have occurred but for the clear Code breaches. The applicant agreed with the proposition that it was their responsibility to abide by the Code. The Code was designed to prevent this set of circumstances developing (and as a result the ensuing damage to the victim).

44. The applicant did not remember having ‘boundary’ conversations (concerning interactions with students) with a colleague ‘O’ but did remember having some relevant or related discussions. The respondent asserts that colleague ‘L’ spoke to the applicant about having lunch with the students but the applicant refuted any conversations with that colleague about such issues ever taking place.

45. The applicant stated that the sexual relationship with the student started after the student was 18 years old and agreed that for a time that relationship was kept secret. The applicant also agreed that they lied to the school on one occasion, and to the student’s mother concerning the student’s whereabouts. An issue about the end of year dinner and colleague ‘L’ specifically prohibiting after function contact with students was also denied by the applicant. The applicant accepts that they accompanied the student to a licensed bar after the function and accepts that as a result had breached an earlier directive to have no ‘unchaperoned’ contact. However the applicant stated that the student’s mother had known of the contact at the time. The applicant accepted that their actions in attending the home of the student were also a breach of a directive. The applicant also agreed with the proposition that breaches of a school code of conduct can cause harm to children.

46. The applicant accepted the suggestion that they were ‘enmeshed’ in the relationship with the student and that would dominate their thinking and consequent actions. When asked to outline to the Tribunal the risk, if any, of a future situation whereby becoming enmeshed in a relationship with a student should they be in a further teaching position, the applicant stated that they have no desire to teach again. In addition however the applicant stated that they are a different person to the one who breached boundaries in the teacher/student relationship.

47. The applicant stated that at the time of the breaches they were possibly the youngest teacher on staff and were naïve and immature. A significant fault was the applicant’s desire at the time to appear popular with the students. Many of the teachers were called by name or by nick names with and by the senior students. The applicant stated that in the intervening years they had reflected on their actions and do not recognise their earlier self. The applicant also stated that if placed in a similar teaching position then they would probably be the ‘complete opposite’ of what they were prior.

48. The applicant agreed that they would read and stick to the Code of Conduct no matter what. When challenged as to how they might react to a situation where a student instigated contact etc., the applicant stated that they would go straight to a person in authority.

49. In re-examination the applicant was asked directly about which other teachers they spoke to about concerns. The applicant provided a detailed answer in their evidence at hearing. When asked what advice the teachers gave the applicant indicated that they did not remember specifically but remembers that there were concerns about how the apparent (and obvious) closeness to the student was being perceived, (the friendship/relationship). The other teacher was primarily concerned about the student’s welfare, and told the applicant ‘to withdraw’. When asked why they did not heed that advice the applicant stated that at the time they were confused, and when asked what they would do now, the applicant advised that they would withdraw and refer the student for help/assistance.

50. The applicant was asked a number of questions about their evidence in cross-examination and how they might approach similar situations (such as going to licensed premises with students) today. The applicant stated that they would no longer pose that risk by being both more mature/experienced and in a different life stage. To implement boundary setting to avoid enmeshing the applicant would communicate with students differently and not be knockabout and not try and be their friend. In addition the applicant observed that their position at the school involved legitimate out of school contact with students and this presented even greater risks and challenges to maintaining clear boundaries.

51. The Tribunal asked a number of questions of the applicant to satisfy us of how the applicant might have become extricated and rehabilitated from their earlier failings. In summary the applicant stated that they are in a stable relationship, and that life is now stable. The applicant had repaired their relationship with their father, and have worked hard to set boundaries, had significant self-initiated treatment and manages situations more effectively than they had in the past. Again the applicant stressed that they no longer recognised the person that they were at the time of the incidents.

52. In further re-examination following the above observations the applicant was asked if there were any further matters they wished to raise. The applicant stated that they were significantly older and more mature since the trigger matters. When asked whether marriage had caused a change in understanding the applicant stated that it had significantly. Again they were a totally different person now to when they commenced the relationship with the student. The applicant had worked hard to regain the trust of their family. They see that what they did was not the right thing to do and have admitted that today and previously. The applicant stated that the following factors had assisted in their change: age, maturity, various conversations with others, being in a stable relationship and above all the assistance from their treating psychologist over many years now. In addition the continued support of family and their presence at the hearing had built on this.

53. Finally the applicant was asked what they thought about the whole WWCC process now some years after the incidents, and having to revisit those matters. The applicant stated that they realised what they had done was wrong and that at the time they had lied to others.

Respondent’s submissions

54. In addition to written submissions the respondent made submissions at the conclusion of the evidence. The respondent advised that their position remained unchanged and the position on the matter was neutral. The allegations and uncontested matters were very serious as they involved a teacher student relationship irrespective of whether certain matters occurred when the student had turned 18 years of age.

55. The respondent submitted that the evidence of Expert Witness 1 should be approached with some caution as no risk assessment was carried out. As positive factors on their own evidence the applicant had self-referred for treatment and there was no evidence of non-compliance with treatment. The applicant was candid in the manner in which they gave their evidence at the hearing and is considered a credible witness.

56. In addition the applicant readily accepted that they caused harm to the student. Further, the applicant’s breaching of the Code of Conduct was a matter in no way attributable to the student and that but for the applicant’s conduct, no harm would have been caused. Whilst the matter is considered serious, it was conceded that any issues arising after the student attained 18 years were less serious, but still of an overall serious nature. The respondent submitted that it was for this reason that the conduct is located within Sch 1 at cl (2).

Applicant’s Submissions

57. The applicant submitted at hearing that the conduct which triggered the risk assessment was conduct relating to a child, whereas the reason for the refusal to grant the clearance by the respondent is based on a different (wider) set of circumstances.

58. The applicant also submitted that the respondent had conceded a number of matters since this application was commenced. Matters concerning the evidence of what occurred during the last two years of the student’s schooling (years 11 and 12), matters relating to various breaches of school directives about contact (chaperoning etc., grandmother present when tattoo obtained), the applicant’s positive post-incident conduct working in vacation care, and other matters.

59. The applicant’s Counsel submitted that the ‘trigger matter’ is relevant as it did not involve sexual conduct but that the reason for the refusal appears to be based on sexual conduct.

60. The applicant submitted that Expert Witness 1 (R Cumberland) gave evidence about how they determined a child for the purposes of references to risk and child abuse in their report and evidence. The applicant submitted that the witness was referring to the Children and Young Persons (Care and Protection) Act 1998 (the CARE Act) and the s 3 definition that a child (other than in Chapter 13 of that Act) is a person under 16 years of age. The evidence of the expert should be given significant weight as there was no attempt to cover up or minimise the issues. The evidence established that the expert knew of the workplace (school) investigation so that was an additional reason for not reporting the matter as it was already in hand.

61. The applicant submitted that they sought out treatment as soon as matters came to a head. This shows that the applicant possess insight into their offending or transgressing and inappropriate behaviour. They had developed positive traits and exhibited no behaviours consistent with the relevant class of sex offender. The applicant submitted that the risk really was that they might not observe the conflicts and enmesh their behaviour. However this risk has been significantly mitigated by extensive treatment for almost the entire intervening period.

62. In concluding the applicant submitted that the applicant is older and wiser, has had extensive treatment, has had a number of intensive conversations with their partner (now spouse) about the previous issues, and has a positive network of persons as a support resource. The applicant has a good insight into what to do now.

Section 30 (1) considerations

63. Section 30 of the Act sets out the mandatory factors that the Tribunal must consider in determining an application. We shall consider each in turn.

(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.

64. The applicant's application to the Tribunal is brought about by an adverse risk assessment. That risk assessment primarily concerns findings by a Workplace/Employer investigation that the applicant had engaged in a pattern of behaviour that was reasonably construed as involving sexual misconduct with a 17 year old student and a further finding that after the student had turned 18 the applicant formed a sexual relationship with the student and this behaviour constituted professional misconduct in failing to meet the standards expected of a teacher.

65. In our view these matters are extremely serious in that they occurred contrary to rules, codes of conduct and standards expected of the applicant, they breached the trust between students and teachers, and had a significant detrimental impact on the student. In addition there is evidence that the applicant breached various undertakings or conditions that they were subject to as a result of the matters initially coming to light.

66. Whilst the applicant has provided explanations in the evidence and other material that many of these ‘breaches’ were technical in nature or occurred with the student’s family’s consent, that does not in our view obviate that applicant’s responsibility and culpability in these matters.

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

67. The matters occurred predominantly during 2011. An assessment of the conduct of the applicant since that time is somewhat unusual in that whilst there has been significant mitigation and no matters that would fall into either Sch 1 or 2 of the Act, the applicant has maintained a close connection to the victim/student.

68. Ordinarily in a child welfare context such matters might count against an applicant. It is not contested that the student was vulnerable and the applicant was the party in the wrong. It is also uncontested that the applicant caused harm to the student, as a result of the legal and other ramifications of the relationship.

69. However the applicant and the former student/victim maintained their friendship albeit halting contact for a significant period of time whilst they dealt with the personal matters arising from the relationship and the trigger incident. Over four years ago their relationship developed into co-habitation which has persisted. A few months prior to the hearing the applicant and the other party married and celebrated the event (as per previous milestones) with both sides of their respective families. Both parties on the evidence before the Tribunal are in a relationship of love and support, where they now function as an ordinary household with mutual economic support within the bounds of marriage.

70. There have been no complaints about the applicant’s conduct in any manner, either within the relationship or outside of it.

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

71. The age of the applicant when the matter(s) occurred was 26 and 27 years.

(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.

72. The victim was a child of 17 years when the relationship commenced and 18 years of age by the time of the workplace investigation into the applicant. There was clearly a level of vulnerability due to the fact that the applicant was an adult teacher and the victim was a student who developed an emotional attachment to the applicant whilst still a child. These matters in our view create a significant vulnerability, but this is exacerbated by the subsequent impact of the matters on the victim during their final months of the initial relationship and final High School exams.

73. Whilst the timing of the significant impacts appears tied to the exposure of the relationship and the action taken, it is clear that the victim required significant medical (including emotional) intervention as a result of what transpired. The applicant was in a position of power and trust over the victim and the victim was (on the uncontested evidence before us), especially vulnerable.

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

74. Based on the age range set out (above) the difference in age between the applicant and the student/victim was nine years. The applicant was a school teacher and the victim was a student at the school.

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

75. The applicant knew that the victim was a child when the inappropriate behaviour commenced and specifically gave evidence as to knowing the victim’s exact age. (Birthday)

(g) The person's present age.

76. The applicant was 34 years old at the time of the hearing.

(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. As there were no established matters that would constitute offences (and we find this to be a proper consideration of the evidence), the second aspect of this requirement (conduct of the person since the offences occurred) is not applicable. However if it were able to be enlivened, we would refer to the matters outlined by us under s 30 (1) (b) above.

78. As a result we find that the applicant’s lack of offending conduct is a positive factor.

(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 provided a number of references and letters of support all of which attest to their long term and current positive character attributes. Whilst none of these witnesses can provide an opinion about the applicant’s level of risk, we note that their observations (in some instances over decades) and the applicant’s positive non trigger history provide an insight into the applicant’s character. That insight we observe is indicative of a lack of propensity for risk taking, (other than at the time of the matters in question), and in the intervening years note the absence of any evidence of risk to vulnerable persons including children.

80. Whilst not expert opinions, we note that the character witnesses appear informed of the trigger incident(s) and circumstances. We also note that they have continued to be in contact with the applicant and as a result are aware of the circumstances of the developed relationship and subsequent marriage between the applicant and their spouse.

81. On the totality of the evidence before us we find that the likelihood of any repetition is low mainly due to the period of time without any offending. Due to the applicant no longer teaching, and being in their mid-thirties, we observe that similar circumstances appear to have long ceased to be present and are unlikely to re-occur.

82. However if any offending behaviour involving a victim of a similar age and in similar circumstances of authority was to reoccur then in our view the impact on children would be significant.

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

83. The applicant tendered a number of character references in support, and these have been referred to above. We place limited weight on those matters but note that they provide some long term attesting as to the applicant’s general character, and in this regard we apply the minimal weight positively.

84. We have received an unsigned witness statement of the victim/student which was prepared for these proceedings and received without objection. (Exhibit ‘A-11’). Neither party sought to call this witness. In that regard we understand the lack of contest between the parties concerning details of the facts of the trigger matter. We note that this witness was present at the hearing whilst the applicant gave evidence in open proceedings before the Tribunal. Importantly that witness states at paragraphs 11 and 13 matters corroborating the applicant’s evidence and submissions concerning sexual or physically intimate contact not occurring until after the student turned 18.

83. This evidence is in contrast to the initial evidence of the respondent at page 65 of the tender bundle exhibit ‘R-2’. No party had sought to call the author of the e-mail at page 65 of ‘R-2’. Having regard to the evidence in ‘A-11’, the applicant’s own evidence, and the workplace investigation findings (as set out at paragraph [64] above), we make a finding that no sexual contact occurred between the applicant and the student prior to the student turning 18 years of age.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

86. No material was obtained in accordance with the section.

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

87. The respondent made submissions concerning the statutory approach, the legislative scheme and various thresholds and interpretation of the relevant provisions, including s30(1) and (1A) approaches concerning risk, the attitude of a reasonable person, and the public interest.

88. In written submissions the respondent conceded that there was evidence that mitigates against risk. Those matters were summarised as:

• The applicant’s engagement in psychological treatment to address their conduct and its causes

• The applicant’s otherwise clean record

• The age of the applicant at the time of the conduct

• The age of the victim at the time of the conduct

• The expert opinion following a risk assessment that the risk that the applicant poses to children is negligible

• The absence of the suggestion of criminal conduct by the workplace investigation

• The applicant’s demonstrated ability to maintain a stable relationship.

The statutory approach

89. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk. In the current matter there is only one matter that in our view could be considered in determining risk to children in any adverse manner, that being the trigger incident, or matters, as referred to in the Act.

90. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. Unlike this matter BKE dealt with an enabling order application. However unlike the facts in BKE, nearly all identified matters in the current case are uncontested. We make this observation as at the conclusion of the evidence, especially having had regard to the sworn evidence of the victim/student, the issue concerning sexual contact occurring only after the 18th birthday appeared no longer in dispute.

91. Consistent with the above guidance we have made findings on the conduct and will now make findings on the current level of risk and other mandated considerations under subsequent amendments to s 30.

Consideration

92. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence provide by the applicant and their witnesses as provided at hearing and in in documentary form.

93. As indicated, we have placed less weight on the character witness statements, and primarily import from those documents a verification of the applicant’s lack of transgression (but for the trigger matter) over their life. Obviously there are other protective factors attested by those witnesses in respect of the applicant’s character, life circumstances and conduct.

94. Notwithstanding the import of the trigger matters, and our observations as to the extremely serious nature of those matters, including the positive findings against the applicant concerning boundary issues and breaches of the relevant code of conduct, we note the significant passage of time since those matters occurred.

95. We also note the unusual circumstances of the matter and the conduct of the applicant and the victim in the intervening years. When we observe that the circumstances are unusual we do not mean that the circumstances in any way justify the earlier conduct of the applicant, rather that such subsequent positive and protective matters would not usually arise out of such a damaging initial situation. We make no comment or observation about the subsequent behaviour and strengthening relationship other than to observe that it is a positive and protective factor in respect of risk.

96. Whilst we find that as is often the case, there remains some risk, we now discount the trigger matters as having any meaningfully significant weight when considering the notion of current risk as set out by Young J in Commission for Children and Young People v V as referred to (above). In that regard we accept the findings of the Forensic Psychologist (Expert Witness 2).

Finding as to risk

97. Based on a consideration of all of the evidence, we are not satisfied that the applicant currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant does not pose a risk to the safety and well-being of children and young persons.

98. 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 s 4 of the Act.

Section 30 (1A) consideration and findings

99. Having made the finding that we have, we are required to have regard to this section.

100. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

101. In our view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases that we refer to below we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk.

102. Particular regard would be had to the conduct of the applicant in the intervening years and the findings of the expert witness as to the applicant’s level of risk being equal to that of any person in the community. Regard would also be given to the unblemished history but for the trigger matter.

103. A reasonable person whilst approaching the matter with some caution would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A). We note that it could be argued that some remaining concerns might arise because of the context and circumstances of the conduct in question (High School teacher/student). However as the applicant is now in their mid-30’s, and noting the evidence concerning mitigation and overall rehabilitation over the years since the conduct, then in our view a reasonable person would discount those peripheral or residual concerns. The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal.

104. We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

105. In DFV’s situation a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work

106. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

107. In our view there is nothing contrary to the notion of the public interest in the granting of a clearance in this matter. We find that the balancing of the applicant’s right to engage in community affairs, work or deemed work now or in the future, contrasted with the protection of children, are in this instance complimentary and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance. We note again the expert finding about the level of risk being equal to that of any member of the community.

108. As a result we find that it is the public interest to grant the clearance.

Conclusion

109. For the reasons set out above, we reach the following conclusion.

110. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

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

112. It therefore follows that the correct and preferable decision is to set aside the decision of the respondent and the applicant be issued with a Working with Children Check Clearance.

Orders

1. The decision of the respondent dated 3 October 2017 is set aside.

2. The respondent is to grant the applicant a Working with Children Check Clearance.

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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: 12 July 2018