DJY v Children's Guardian

[2023] NSWCATAD 241

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DJY v Children’s Guardian [2023] NSWCATAD 241

Hearing dates:

15 May 2023

Date of orders:

12 September 2023

Decision date:

12 September 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop SC, Senior Member
E Hayes, General Member

Decision:

The decision of the Children’s Guardian is affirmed.

Catchwords:

ADMINISTRATIVE LAW — child protection — working with children — cancellation of working with children clearance — breach of interim bar — inappropriate conduct with employees and student —failure to rebut presumption that applicant is a risk of harm to children

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 5B, 6, 8, 15, 17, 23, 28(7), 30

Cases Cited:

BKE v Children’s Guardian [2015] NSWSC 523.

Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CRG v Children’s Guardian [2017] NSWCATAD 295

CSW v Children’s Guardian [2017] NSWCATAD 326

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

Secretary, Department of Justice v LMB [2012] VSCA 143

VQB v The Secretary to the Department of Justice [2013] VCAT 789

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

DJY (Applicant)
Office of the Children’s Guardian (Respondent)

Representation:

Counsel:
E Jones (Respondent)

Solicitors:
GTC Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00329715

Publication restriction:

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal dated 16 December 2021, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited.

REASONS FOR DECISION

Introduction

1. The applicant (DJY) seeks review of a decision of the respondent (Children’s Guardian) on 21 October 2021 to cancel his Working with Children Check Clearance (Clearance).

Issues

2. The issues to be determined in this matter are, having regard to all of the evidence, whether we are satisfied on the balance of probabilities that:

1. DJY has displaced the presumption that he is a risk of harm to the safety of children;

2. a reasonable person would or would not allow their child to have direct, unsupervised contact with DJY; and

3. it is in the public interest for DJY to have a Clearance.

3. For the reasons set out below, we are not satisfied that DJY has displaced the presumption that he is a risk of harm to the safety of children and the correct and preferable decision is to affirm the cancellation of DJY’s Clearance.

Background

4. DJY operates a tutoring business attended by school children from Year 5 through to Year 11. In 2013 DJY was granted a volunteer class Clearance.

5. He engaged in, or it is alleged that he engaged in, a number of concerning behaviours on several occasions which are set out below (Concerning Conduct):

1. In 2017, DJY:

1. engaged in child-related work without a Clearance and employed a staff member who also did not possess a Clearance;

2. viewed pornography on the main administrative computer of the business which “depicted sexual intercourse between teachers and students and/or with ‘teens’ and ‘virgins’”; and

3. is alleged to have indecently assaulted an employee by placing a hand on her breast.

2. In 2019, DJY is alleged to have sexually touched another employee by placing a hand on her buttocks.

3. In 2020, DJY is alleged to have made comments to a student that were of a sexual and/or a romantic nature.

6. DJY was found guilty in the Local Court of the charges of engaging in work without a Clearance and employing a staff member without a Clearance. He was placed on a good behaviour bond and no conviction was recorded.

7. No charges were brought by police against DJY in respect of any of the other incidents and allegations.

8. Due to the first two of the alleged 2017 incidents, in July 2017 DJY was referred for a risk assessment under s 15 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act). An interim bar (s 17) was imposed and, following assessment, the Clearance remained in place.

9. In June 2018, DJY was authorised to engage in paid child-related work by the granting of a non-volunteer class Clearance.

10. DJY was again referred for a risk assessment in October 2020 following an incident with a student who we will refer to in this decision as ZM. An interim bar on DJY’s Clearance was subsequently imposed by the Children’s Guardian.

11. A notice proposing cancellation of the Clearance was sent in September 2021, followed in October by notification of its cancellation after a risk assessment, pursuant to s 23(1) of the Act. It is this cancellation that is the subject of the review before the Tribunal.

Relevant law and legal principles

Working with children regime

12. The paramount consideration in the operation of the Act is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”: s 4 of the Act.

13. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61].

14. One of the ways in which the Act protects children is by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act. For the purposes of the Act, “child-related work” is defined in s 6 and includes work for or in connection with education, which encompasses “private coaching or tuition of children”: s 6(2)(g). A worker must not engage in child-related work without a Clearance, or without a current application in process; or where that worker is subject to an interim ban: s 8.

15. In certain circumstances, the Children’s Guardian is required to conduct a risk assessment of a person’s Clearance (s 15(3) of the Act), including where information is received from the Reportable Conduct Directorate of the Children’s Guardian about the person’s conduct.

16. A Clearance must be cancelled if the Children’s Guardian becomes aware that the person is a disqualified person or if satisfied that the person poses a risk to the safety of children: s 23 of the Act.

17. Section 5B of the Act provides that “[a] reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children”. An assessment of risk requires a determination of “whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on the child” as opposed to a “fanciful or theoretical risk”: Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; BKE v Children’s Guardian [2015] NSWSC 523 (BKE).

18. On the application before the Tribunal, the applicant is presumed to pose a “risk to the safety of children” unless proved otherwise: s 28(7) of the Act.

19. In circumstances where the Tribunal is being urged to find a risk to the safety of children based on past conduct which is disputed, the correct approach to adopt is that stated by Beech-Jones J (as his Honour then was) in BKE at [33]:

“…, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

20. In BKE, the court took significant guidance from the High Court decision of M v M (1988) 166 CLR 69 at 76 where the Court reasoned:

“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …

[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”

21. This was addressed by the Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 (“CXZ”) where Basten JA stated at [7]):

“Where the Guardian or NCAT is not affirmatively satisfied that the alleged conduct occurred, but is not able to dismiss the allegation as groundless, it is necessary to assess whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children.”

22. Further, Simpson AJA stated at [57]-[58]:

“The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.”

23. In determining this application for review, the Tribunal must find the correct and preferable decision having regard to the material before it.

24. In undertaking this task, the Tribunal is required to consider the matters in s 30 of the Act which 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 criminal history and the conduct of the person since the matters occurred,

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

(i1)  any order of a court or tribunal that is in force in relation to the person,

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

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

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

25. Further, under s 30(1A) of the Act, the Tribunal may not make an order which enables a person to work with children unless also satisfied that:

(a)   A reasonable person would allow his or her child to have direct contact with the affected person that was not 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.

26. The “reasonable person test” was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 at [36] where it was said that the test requires:

“…the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.”

27. This approach has been endorsed in several cases including CSW v Children’s Guardian [2017] NSWCATAD 326 at [136]-[137]; (see also CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262; CRG v Children’s Guardian [2017] NSWCATAD 295 at [85]; and DAI v Children’s Guardian [2017] NSWCATAD 308 at [90].

28. In Secretary, Department of Justice v LMB [2012] VSCA 143 at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 at [20]; (2009) 240 CLR 140:

‘The term “in the public interest” is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.’

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

The hearing and the evidence

29. DJY relied on the following:

1. His statutory declaration dated 14 May 2023;

2. A report from a Professor and forensic psychologist (who will be referred to as Professor F) dated 25 January 2022;

3. A Mental Health Treatment Plan from DJY’s general practitioner;

4. An amended report dated 14 October 2022 from a psychologist engaged by DJY for the purposes of these proceedings (who will be referred to as CFB);

5. A report dated 30 May 2018 from a psychologist (who will be referred to as MW);

6. A report of a provisional psychologist (who will be referred to as MS) dated 21 June 2022;

7. Submissions dated 24 January 2023.

30. DJY, Professor F and CFB were cross-examined at the hearing.

31. The Children’s Guardian relied on the following:

1. Documents pursuant to the Administrative Decisions Review Act 1997 (NSW), s 58, filed 14 December 2021;

2. Further documents filed 18 August 2022;

3. Evidence in Reply filed 4 November 2022;

4. Supplementary Bundle of Reply Evidence filed 8 December 2022;

5. Submissions filed on 8 February 2023.

Consideration

32. In determining this application, we have had regard to all of the evidence before us and the following factors as set out in s 30(1) of the Act have been considered.

(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

33. Whether viewed individually or collectively, in our view the Concerning Conduct is serious. We will deal with each of the offences and alleged incidents separately.

Breach of clearance requirements in 2017

34. DJY said he was aware that the clearance he obtained in 2013 was only for unpaid work and that at the time he opened his tutoring business he knew he required a different Clearance that he did not have. He accepted that children are at risk if people working with children do not have the proper Clearances. However, he also sought to minimise the offence by saying he was so busy opening the new company that he just did not think about obtaining the proper Clearance.

35. Further, he said he had thought that only people interacting with children needed a Clearance and the employee without the Clearance was not working with children. Once he underwent the risk assessment in 2017 he told that employee that she needed to get a Clearance. He accepted that if he had been acting more responsibly, he would have ensured she had the Clearance before he employed her. DJY said this was merely a management problem and he should have been more strict.

36. Of these offences, in 2017 DJY said:

“Whilst my actions arose from genuine mistake, I understand that my mistake was not reasonable in the circumstances, and I have taken steps since the incident to ensure that these matters do not reoccur and to ensure that I do not pose a risk to the safety of children.”

37. DJY also admitted his daughter, who was engaged in tutoring children on a part-time or casual basis, also only had a volunteer worker Clearance. DJY was of the view that he did not think about it at the time and thought all family members could help him on a volunteer Clearance.

38. We note however that in 2018, DJY expressed the belief to clinical and forensic psychologist MW, somewhat inconsistently with the previous explanation, that while it was his responsibility to obtain that Clearance, when he purchased the tutoring franchise someone should have told him to get the Clearance. He repeated that excuse during cross-examination at the hearing.

Viewing pornography

39. In June 2017, DJY conducted searches for and watched pornographic material on a computer at the tutoring premises. This was discovered by police who recorded that the searches related to “either teacher having sexual intercourse with students, virgin’s having sexuaI intercourse for the first time or female school children having sexual intercourse”.

39. DJY gave inconsistent explanations about his searching for and watching pornography.

40. In a previous interview with police he said that he had viewed the pornography for a Year 9 science experiment about semen, body parts and organs. DJY also said that the first time the pornography came on the screen it just popped up and that must have been for the reason that someone else must have searched for it using his computer in the reception area at work. He questioned how the police could know whether it was him or someone else that had performed the searches.

41. Despite this, DJY admitted in cross-examination that he had entered search terms into the Google search engine that included “teen porn” and “virgin porn” but maintained someone else must have entered them first. Further, he admitted that the first time he entered those search terms and saw the pornography he thought it was “nice”. DJY said that he only looked at pornography during the day (when students were not around) and that he did it to relax.

42. In June 2017, DJY looked at the pornographic images daily. He admitted that he had an addiction at that time – it made him feel good and he enjoyed it. He also admitted in cross-examination that while originally he told the police it was a science experiment, that was simply an excuse.

43. DJY maintained in cross-examination (as he did in the police interview) that he watched the pornography to understand teacher’s behaviour and how they might convince students to engage in that type of behaviour. He said that although he realises it is not real life, it assisted him to understand. He explained that if he was better aware, then he would know if a teacher was sexually abusing a student and could sack the teacher: it was his responsibility to keep the students safe. However, he later conceded that it was not necessary to watch pornography to assist him to understand teacher/student relationships and that the dominant reason he watched the pornography is because he enjoyed it and was addicted.

44. He understood the actors were over 18 but agreed they were depicted as school students of the ages 13-19 years old. DJY said this was relevant to him as he had many kids at his tutoring business of that age.

45. DJY reported to MW that he is most sexually attracted to females aged 18 to 20 years but denied that he was sexually attracted to the people in the videos nor sexually aroused by the conduct. Instead it served a sex educative purpose and sometimes he tried those activities with his wife.

46. He said that despite his addiction to pornography, after the police interviewed him in 2017 he completely stopped watching it.

47. DJY’s apparent addiction to pornography depicting teachers with students is concerning given his role as a tutor of children of the same age depicted in the pornography. It is troubling this occurred on the premises of the tutoring business and that he gave inconsistent explanations for searching for and watching the pornography. Although he expressed remorse, it did not appear to us that DJY appreciated the gravity of this conduct for someone in his occupation and role in the business.

Alleged incident with staff member in 2017

49. This incident concerned a 22-year-old employee (referred to with the pseudonym EL). EL had a learning disability and experienced anxiety and depression.

50. EL alleged that on 16 June 2017, DJY engaged in conduct described in a statement subsequently made to the police as follows:

“[DJY] walked out of his class and stood right next to me on my left side. I was just sitting on my seat at the reception desk facing out towards [the] street … No other person was in the foyer, reception or computer area. I had no idea where [DJY’s] wife had gone. I remember it was dark outside,

[DJY] stood [a lot] closer than the other time he had stood next to me. I would say he would have only been about thirty (30) centimetres away from me. There wouldn’t have been enough room for me to turn around without my body making contract with his body …

I saw and felt [DJY] place his left hand with an open palm facing down on my left breast.

This would have been about three (3) to four (4) centimetres above my nipple. This caused my left breast to wobble. [DJY] didn’t say anything about why he had touched me or that he was trying to reach something else. [DJY] left his left hand on my left breast for about one (1) second. He then moved his open left palm across my left breast, over my cleavage and onto my right breast. [DJY] used some force doing this as it caused my left [breast] to wobble.

I was wearing my top and singlet … [DJY] might have touched some of my skin where my top goes into a v-neck style between moving from my left breasts to my right breast.

As [DJY] approached the end of [my] right breast and chest, he moved his hand off and grabbed the mouse [of the computer] and moved it.”

51. EL immediately complained to a co-worker and then to her sister and mother that same evening. EL’s sister provided a statement to the police on 29 July 2017 recording that EL had told her on the night of 16 June 2017 that DJY and touched her chest and demonstrated as much by sliding her hand across her chest and that EL told her mother that DJY had touched her.

52. DJY admitted he was rude to EL but contended that she had fabricated the allegation. He said in cross-examination that if he touched her chest area it was not intentional; he was just trying to show her how to use Excel spreadsheets as she was new.

53. He said he should never have employed her because she was not very good. DJY said he had hired her from a disability service and that he should never have hired a disabled person.

54. CCTV footage of the incident was shown during cross-examination. It appeared to us that DJY lent over EL to show her something on the screen a number of times. It appeared he tapped her forcefully on the left chest area somewhere between her breast and shoulder but the footage was not entirely clear given the angle of the camera from behind DJY and EL. It also appeared to us that he brushed past her chest area as he lent across the screen.

55. No charges were brought by the police against DJY in relation to the incident with EL.

56. Taking into account the immediacy with which a complaint was lodged by EL with the police, our review of the CCTV footage and DJY’s evidence, we are satisfied the allegation is not groundless. The conduct alleged by EL is serious given she suffered a disability and that DJY was in a position of authority over her as her employer.

Alleged incident with staff member in 2019

57. An allegation was made by a 20-year-old girl (whom we refer to by the pseudonym TJ) who was employed by DJY. She was a first year university student of a family from the village overseas from where DJY originates. It appears that TJ’s role at the business was as an assistant tutor. It is not clear whether she had a Clearance for this role.

58. In a statement TJ made to the police on 4 August 2021, TJ described the incident on 30 November 2019 as follows:

“I was showing [DJY] materials for the following class. [DJY] was standing next to me on my left side reviewing the material. After he reviewed the materials, he said “That’s good” and then touched me on my butt using his open right hand. [DJY] then left the room.”

59. TJ also alleged that later that day when they were alone in a room, DJY was inappropriately close and placed his hand on her shoulder during a conversation. Afterwards, TJ’s boyfriend went to DJY’s home and confronted DJY about his conduct. That evening, DJY’s wife called TJ and told her not to come back to work.

60. DJY said that TJ was like his daughter and if he put his hand on her shoulder (which according to him he did frequently) it would keep her calm and quiet. DJY taught TJ as well as her boyfriend. TJ referred to DJY as “Uncle DJY” a name which DJY said many of the children used for him.

61. DJY admitted in cross-examination that he may have rolled up paper and tapped her with the paper but never his hand. DJY said that he did not think these things would make TJ feel uncomfortable particularly when he was consoling her as she was homesick for her mum and dad. It was not until TJ made a complaint that DJY said he realised that he must have made her feel uncomfortable.

62. There were various text messages between DJY and TJ in evidence before the Tribunal. In a text message to DJY, TJ said “If you can harass me, you are not safe for the kids too”. In these contemporaneous text messages, TJ explicitly accused DJY of sexual harassment and breaches of the Anti-Discrimination Act and Fair Trading Act. In a text message in response DJY wrote “I will give you a good reference – why did you say this?” and “No one is an angel, everyone is doing some sort of illegal activity.” When shown these text messages in cross-examination, DJY explained this to be a reference to TJ’s father back home who had been involved in illegal activities as well.

63. Taking into account the contemporaneous text message evidence and that the allegation is not dissimilar to that made by EL some two years prior, we do not consider the complaint is groundless.

Alleged inappropriate conduct toward student in 2020

64. A further incident involved a student (we have referred to with the pseudonym ZM) in August 2020. A complaint was lodged with the police on 28 August 2020 in which the police recorded that:

“[ZM] reports that [DJY] is making occasional sexual remarks in class. Speaking of how sex and orgasms work opening to [ZM] in between teaching topics. [ZM] states [DJY] has been saying phrases to her in the language of [their homeland], that indicate a romantic/sexual admiration of [ZM]. Example “Hey I’m starting to feel something adoring about you, like affection.” “I think about you at night.” “Do you have a boyfriend” etc”.

65. ZM was 17 years old at the time of reporting the incident. No charges were brought against DJY despite the police noting it was “highly unsettling” behaviour.

66. DJY said that he had tutored ZM from Year 8 to Year 11. Her mother would wait in the other room during the tutoring session and was a friend of DJY. He said that he would frequently call ZM “sweetheart”, “darling”, “genius” as he did to other younger students. He said it appeared to him that his students liked these terms of endearment which made them feel appreciated. DJY said ZM loved him and his teaching but when her mother wanted her to have tutoring on the weekend she started complaining because she wanted to go out with her friends.

67. DJY said that he was teaching ZM biology which included showing her images of female body parts as well as cell division from text books.

68. DJY said that ZM’s mother started becoming concerned about ZM’s behaviour and asked him to find out if she had a boyfriend and where he was from. ZM did not want to continue her tutoring sessions on the weekend and eventually ZM stopped coming to tutoring. DJY sent her some text messages including “Please come you are a lovely girl”.

69. After ZM made a complaint. the Children’s Guardian placed an interim bar on DJY’s Clearance.

70. When asked in cross-examination what he would do differently now, DJY said “I will not do one on one tutoring anymore”.

71. DJY also said that ZM may have fabricated the story as she did not want to come to tutoring on weekends.

72. He also said that each of the three women (from the 2017, 2019 and 2020 incidents) colluded and fabricated their stories against him because of anger.

73. We consider this allegation as serious particularly having regard to the age of the student; the position of trust DJY held as tutor of ZM and his ability to manipulate and groom. In the context of DJY’s admitted addiction to pornography which depicts teachers with students and the other allegations by female employees of DJY, we are not satisfied that this incident complained of by ZM is groundless. We are also satisfied it is serious.

Breach of interim bar

74. In a statutory declaration of 14 May 2023 sworn by DJY and relied upon him in this proceeding, DJY stated:

While I have been subject to the interim bar on my WWCC, I confirm that I have not participated in any teaching roles with children and have adhered to all restrictions. My only role has been that of an assistant to tutors as I would not hire tutors if I planned on teaching the students myself.

… I further deny that I breached the interim bar by engaging in work requiring me to hold a [Clearance].

75. However, DJY said in cross-examination that during the period the interim bar was in place he continued to enter classrooms while tutoring was occurring when a new tutor started. This was so even though he understood he could not work while the bar was in place. He said he never taught during that period but was supervising the tutor who could not control the class. He accepted he was on the premises with children. This admission is a direct contradiction to his sworn statement.

76. This breach is in our view a serious one.

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

77. The relevant events took place in the years 2017, 2019 and 2020. It is of concern to us that there have been recent and repetitive incidents of a similar nature.

78. DJY said that he has done a lot of work to improve himself with the assistance of a psychologist. He has had eight sessions with a psychologist in 2022 after commencing this review proceeding. The focus has been on his anger and in particular the high risk situations he considers arise at work because of his anger. DJY said that he now realises that his anger was a problem; and he was afraid as he was losing his business. However, he has now learned to control his anger which he considers will prevent any further issues arising in the future. DJY said that he saw a psychologist who made him, “understand the way I should be behave, how to become quiet and how to feel about the kids”

79. DJY decided not to continue the sessions as he preferred to work on his skills. In cross-examination, DJY said that he will go back to counselling if he thinks he needs to or if he has further difficulties.

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

80. DJY’s age in the relevant years was as follows: 55 years old in 2017; 57 years old in 2019; and 58 years old in 2020.

(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

81. In 2017, EL was 22 years old. She was vulnerable because of her learning disability, anxiety and depression, and because of her position as an employee.

82. In 2019, TJ was 20 years old and vulnerable as she was employed by DJY.

83. In 2020, ZM was 17 years old. She was vulnerable due to her age and that DJY was in a position of authority as her tutor.

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

84. The difference in age between DJY and EL was about 33 years.

85. The difference in age between DJY and TJ was about 37 years.

86. The difference in age between DJY and ZM was about 41 years.

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

87. DJY knew that ZM was a school student, and it can be inferred he knew the ages of EL and TJ as he employed them.

(g)  the person’s present age

88. DJY is 60 years old.

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

89. Apart from the matters described above, DJY does not have a criminal history. However, in our view there has been a pattern of conduct since 2017 of behaviour towards women of a sexualised nature and breaches of his interim bar. This demonstrates a disregard for the consequences of his behaviour and for the laws stipulating the requirements for working with children.

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

90. DJY has engaged in counselling sessions and submits that he is willing to engage in further treatment if it would get him the Clearance. He has supplied the Tribunal with three psychologists’ reports.

91. MW’s report from 2018 expressed the view that DJY was not likely to engage in offending behaviours. Further, she opined that there was not a “discernible relationship” between a risk to children and his viewing of pornography as she believed he could “maintain appropriate boundaries”. She also found him defensive and uncritical of his own actions. In our view, the utility of this report is somewhat limited as it predates the further incidents which occurred in 2019 and 2020 but it also demonstrates that in 2018 DJY had little insight into his conduct.

92. The June 2022 report from MS notes that in over the course of her eight sessions with DJY, his scores on the Difficulties in Emotion Regulation Scale (DERS) for a lack of emotional awareness declined, which reflected his lack of insight into his own behaviours. This was despite an improvement in relation to his impulse control difficulties. She noted that DJY self-reported panic attacks in the past which have reduced since practising meditation and relaxation exercises. MS noted:

“[t]he client doesn’t want to continue therapy at this point, as he feels he wants to practice his skills and work on his emotion regulation. He is open to come back and continue if he is experiencing difficulties.

93. MS noted that she did not have the requisite knowledge to opine on high risk situations in DJY’s occupation or any strategies to mitigate issues.

94. The January 2022 report by Professor F contained an assessment that DJY was not a clear risk to children and that with tailored treatment he could avoid future allegations of inappropriate behaviours. However, Professor F also noted that a risk factor was DJY’s inclination to minimise his culpability/externalise blame, which leads to a failure to be aware of situations that are high risk.

95. In cross-examination, Professor F noted that there is not a strong link between panic disorders (which DJY suffered from) and inappropriate behaviour of a sexual nature. However, it is also difficult to predict behaviour. Professor F said that it is not that DJY is a deviant, rather, he is anxious and not able to make good decisions or recognise situations that may be high risk. When shown the report of MS and the type of treatment DJY had received in MS’s care, Professor F said that DJY had a tendency to minimise which might impact on his ability and willingness to engage with treatment: if the problems arose from someone else then DJY’s understanding does not extend to himself as being the issue. Consequently, without accepting culpability there are limits to the effectiveness of treatment.

96. Professor F had not been aware that DJY had engaged in viewing pornography daily in June 2017 but once made aware, he said it raised a red light given the vocation work DJY engages in and was an example of DJY’s inability to recognise something as inappropriate or a high risk situation and that there as tangible evidence of vulnerability to control his impulses. When informed of the admissions made by DJY to the effect that he discussed sex and orgasms with ZM, Professor F indicated he had not been aware of that and it would require further investigation but, on its face, appeared to be inappropriate behaviour.

97. The October 2022 report prepared by CFB concluded (based on a telephone interview with DJY) that he presented a low risk regarding general anti-social activities or sexual or violent activities. However, the report also noted that DJY had difficulty in recognising and dealing with high-risk situations, and he did not have full insight into his own behaviours for which he blamed others and minimised. Further, she found that he may have impaired judgement in regard to boundaries in his professional role, and that he was dismissive of any suggestion of his own mental health issues.

93. CFB also noted DJY’s interpersonal difficulties and difficulties in expressing preventative strategies; and that his account of his reasons for viewing pornography were, to the extent that they were incomplete, misleading. CFB noted that DJY had a relapse prevention plan which included cameras and not enrolling certain students for tutoring; and that if he had a conflict he would merely walk away. CFB expressed the opinion that the best indicator of future behaviour is past behaviour. CFB acknowledged that DJY had a lack of insight: DJY did not appreciate that he needed treatment and so it was important that he improved his insight to understand why treatment was even necessary.

94. When some of the details which DJY had not shared with CFB were revealed to her during cross-examination (such as the content of text messages between DJY and TJ; the terms of endearment he is alleged to have used with students; and importantly that he had entered the search terms to find and watch pornographic material and that in June 2017 this was a daily occurrence; that he had an addiction to watching pornography), CFB expressed the opinion that it demonstrated a lack of boundaries; overfamiliarity with students; it was inappropriate to search and view pornography at work; and his failure to disclose this to her showed a lack of insight on DJY’s part.

95. The fact that DJY did not disclose all of the relevant facts to two psychologists engaged to assist the Tribunal in the proceeding is concerning. We find, in addition to the matters raised by Professor F and CFB, that this conduct represents an example of DJY minimising his behaviours. Further, DJY’s evidence in cross-examination (which we set out above) served to highlight what appears to us to be an inability in DJY to understand the significance of his actions and his conduct around young women even though he says he does understand.

96. We are of the view that DJY lacks insight and understanding into the consequences of his actions and does not have the ability, without further treatment, to mitigate against risks. He also does not appear to understand the gravity of his breaches of the interim bar and instead wants to present himself in a positive light in order to obtain his Clearance back. In so doing, he has not been forthright with his psychologists nor with the Tribunal which further demonstrates his lack of insight and understanding as to the gravity of his conduct on others.

97. Consequently we consider the risk of repetition of DJY’s inappropriate conduct with students and staff is real as is the likelihood that he will continue to breach the interim bar.

(i1)  any order of a court or tribunal that is in force in relation to the person

103. There is no order of a court in force in relation to DJY.

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

104. In October 2017, DJY provided a statutory declaration and various submissions to the Children’s Guardian. He also provided various responses to the police investigations of 2017, 2019, and 2020 (some of which are at odds with the evidence given in this proceeding). He also provided a statutory declaration in this proceeding dated 14 May 2023.

105. A number of positive character references were provided by DJY in 2017 in response to the Local Court proceedings. The referees only appear to indicate knowledge of DJY working without a Clearance which they describe as a “small misunderstanding”: they are not aware of other inappropriate behaviour including that which post-dates the references. Consequently we give these references little weight.

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

106. Not applicable.

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

107. No other matters have been raised by the Children’s Guardian.

Our findings

108. Having considered all of the oral and documentary evidence before us including the evidence of DJY, Professor F and CFB and taking into account all of the s 30 considerations, we are not satisfied, on the balance of probabilities, that DJY has rebutted the presumption that he poses a risk to the safety of children. In particular, by reason of the mere possibility that any or all of the incidents in 2017 with EL, 2019 with TJ and 2020 with ZM occurred, the existence of the risk of harm to a child has not been disproven.

109. We note that while DJY indicated he will get more treatment if that is required to obtain a Clearance, under the Act we are unable to grant conditional Clearances. More importantly, the fact that DJY offered this as a condition further indicates his inability to appreciate and understand that further treatment is required and demonstrates his lack of insight. The fact that he attended the eight sessions appears to us to have been something he did in an attempt to show in this proceeding that he had rehabilitated so that he could obtain the Clearance.

Section 30(1A) Considerations and findings

110. Given our conclusions above, we do not need to consider the additional test in s 30(1A) of the Act.

111. However, in our view, DJY would not satisfy this test. This is on the basis that we are satisfied that a reasonable person with knowledge of all the facts and circumstances set out above, would not allow his or her child to have direct contact with DJY whilst unsupervised by another person and that the public interest weighs against such a Clearance being given in this case.

112. In this regard, the reasonable person would be taken to know the details of DJY’s breaches of the interim bar; that DJY worked without a Clearance; that he searched for and watched pornography which depicted teachers and female students engaged in sexual behaviours and that this was done at the premises of the tutoring business; the alleged incidents involving young female staff and a student; and DJY’s denials and inconsistent evidence about the incidents. The reasonable person would also have regard to the fact that the conduct occurred at DJY’s workplace in which he assumes a position of trust and authority and from which all of the incidents have arisen.

113. We are also satisfied, having regard to the subject matter, scope and purpose of the Act to protect children from child abuse, that it is in the public interest that DJY not have a Clearance. In making this conclusion, we have had regard to DJY’s desire to continue to run his tutoring business and make a living from it; the financial strain placed on him by not having a Clearance; the public interest in tutors being able to engage in their work and business; but that paramountcy is to be given to the safety of children. We also note that DJY informed the Tribunal that he has already made plans should a Clearance not be given to him so that he can survive.

114. In light of the disclosures he made during cross-examination and the evidence of CFB and Professor F, we have doubts about DJY’s insight into the importance of the protective function and regime provided for under the Act. Given the paramountcy of the protection of children, the public interest is best served by ensuring that DJY is not provided a Clearance.

ORDER

1. The decision of the Children’s Guardian is affirmed.

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

Registrar

Decision last updated: 12 September 2023