DOS v Children's Guardian - [2019] NSWCATAD 231

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DOS v Children’s Guardian [2019] NSWCATAD 231
Hearing dates: 24 January 2019, 12 April 2019Submissions closed 15 May 2019
Date of orders: 07 November 2019
Decision date: 07 November 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
L Houlahan, Senior Member
Decision:
1. The decision of the respondent dated 16 August 2018 to cancel the applicant’s Working With Children Check Clearance is affirmed.
2. The application is dismissed.
Catchwords: ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – pattern of allegations – allegations conceded – whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – whether sufficient time to rehabilitate
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
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
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
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
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
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.
Category: Principal judgment
Parties: DOS (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
Applicant (Self-represented)
Crown Solicitor(Respondent)

File Number(s): 2018/00279854
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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent cancelling his Working with Children Check clearance (WWCC). The clearance was cancelled because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a risk to the safety of children.
The respondent became aware of reportable conduct concerning sustained findings in 2016 of sexual misconduct following a workplace investigation into the applicant’s behaviour as a High School teacher. This matter caused a mandatory risk assessment. The respondent made positive findings about the applicant’s inability to modify his inappropriate behaviour towards child students in particular his inability to comply with various relevant policies and standards of professionalism designed to limit child abuse, and his inability to maintain appropriate boundaries in child related employment.
As a result of the risk assessment the respondent made a finding that the applicant posed a real and appreciable risk to the safety of children and after seeking a response from the applicant, subsequently cancelled his WWCC clearance.
The substance of the information concerned reports from 2002-2016 about the applicant’s behaviour involving inappropriate contact with students whilst employed as a teacher. That behaviour (whilst not involving any assault allegations of substance) was characterised (amongst other things) in an independent Investigation Report findings as: sustained allegations of sexual misconduct. There were a series of workplace investigations in response to allegations concerning children in 2002, 2004 and 2006. The 2002 and 2006 matters were also sustained as sexual misconduct (in the workplace context). All of the allegations and investigations occurred in the context where the applicant was employed as a school teacher, and the allegations concerned children who were students at schools where he was (or had previously) been employed.
Whilst the applicant undertook significant remedial and other mitigating actions post allegations, the respondent determined that notwithstanding those actions, the applicant had been unable to modify his behaviour over an extended period of time, and this combined with a minimal passage of time since the most recent allegations resulted in a conclusion that the applicant remained a risk to the safety and well-being of children.
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant remains a real and appreciable risk to the safety and well-being of children and young persons. As a result of the finding the decision of the respondent will be affirmed.

Background

The Applicant in these proceedings is referred to as "DOS". DOS is the applicant's pseudonym used in these proceedings in conformity with the order referred to at [8] (below).
On 11 October 2018 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: 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.

The Notice of Cancellation issued under s 23 (1) of the Act was issued on 16 August 2018. The applicant stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed 12 September 2018 was lodged within the required period and as a result his application for administrative review has been received within time.

The application for administrative review

The grounds of the substantive application (in summary) are:

I am seeking a review of the decision on the following grounds:
I strongly belief [sic] that the decision of the Children’s Guardian, that I am a real and appreciable risk to the safety of children is incorrect.
I seek a review based on the fact that, included in the historic alleged workplace misconduct claims are events that were investigated and found not to have occurred and therefore were found to not be reportable conduct (as I did nothing wrong), yet included in the evidence against me. Also other workplace investigations listed have been incorrectly recorded and reported despite me having given clear and concise account of what really did happen and why in some of the reported claims, events have been embellished to enhance the defence of the Children’s Guardian.
I would like the opportunity to be able to clarify the actual happenings of these workplace misconduct reports, with the aim of showing the tribunal that I am not a real and appreciable risk to the safety of any child, as has been strongly supported by my many professional and personal referees (all of whom would be considered reasonable persons) who were contacted by the investigating officer in preparing the attached findings.

More detailed grounds were provided in written material submitted by the applicant.
The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant poses a risk to the safety and well-being of children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30 (1A) of the Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk.

The Working With Children legislative scheme

The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: s 4 of the Act.
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.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.
Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). The applicant in these proceedings was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as there was a finding of misconduct by a reporting body. The finding was the result of the 2016 workplace investigation.
Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(2) 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.
(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

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

30 Determination of applications and other matters
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person’s present age,
(h) the seriousness of the person’s 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.

Burden of Proof

The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
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].
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. However there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.
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". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the 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: see ADV v Commission for Children and Young People [2012] NSWADT 8.
The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].
We note that ‘risk’ has now been given a statutory definition in the Act at s 5B by reference to ‘risk to safety of children’.

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.

The hearing

The matter was heard over two days on 24 January 2019 and 12 April 2019. The applicant was not legally represented at hearing and the respondent was represented at hearing by counsel and instructing solicitors. At the conclusion of the hearing, the Tribunal made directions consistent with the applicant’s request to ‘correct errors’ in the records submitted by the respondent. The respondent was given time to reply with the submissions finalised in mid May 2019.
The applicant gave evidence at the hearing, as did the expert report writer Forensic Psychologist Mr J Borkowski. In addition the applicant’s treating counsellor (Ms ‘J’) gave evidence as did former colleagues of the applicant Mr ‘M.D’, Mr M.J, Ms ‘J.D’, and Mrs ‘K.L’.

Written Evidence

Applicant’s written material

The applicant filed a number of written items in support of his application.

Exhibit ‘A 1’: the application for administrative review filed 12 September 2018,

Exhibit ‘A 2’: the applicant’s affidavit of 16 November 2018 and annexures and other evidence comprising references.

Exhibit ‘A 3’ Expert report by J Borkowski dated 10 October 2018.

Exhibit ‘A 4’ personal reference / Statutory Declaration from ‘K.D.’.

Exhibit ‘A 5’ personal reference / Statutory Declaration from ‘A.H.’.

Exhibit ‘A 6’ personal reference / Statutory Declaration from ‘C.S.’.

Exhibit ‘A 7’ personal reference / Statutory Declaration from ‘R.J.’,

Exhibit ‘A-8’ personal reference / Statutory Declaration from ‘C.R.’.

Exhibit ‘A-9’ Applicant’s statement / submissions of 16 January 2019.

Exhibit ‘A-10’ personal reference / Statutory Declaration from ‘J.L.’.

Exhibit ‘A-11’ personal reference / Statutory Declaration from ‘M.D.’.

Respondent’s written material

The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31.

Brief history of relevant matters

The applicant has worked in the teaching sector teaching children from 1992 until he was placed on a “not to be employed list” by the NSW Department of Education in August 2017. His 25 year teaching career occurred mainly in the non-government school system and involved a range of placements at different schools both primary and secondary. The government school employment often involved casual teacher placements.
The applicant was the subject of complaints about his conduct from around the year 2000 onwards until 2016. Each of the complaints/allegations are described as follows:

Risk assessment trigger s 14 allegations

The applicant was found to have engaged in sexual misconduct towards students at a school in which he taught. The specific allegations were:

On numerous occasions in early 2016 the applicant engaged in inappropriate conduct with students via Snapchat and/or Instagram.
The applicant instructed students not to disclose to anyone his interactions with them on social media.
In 2015 the applicant engaged in discussions of a personal nature with students not relevant to education or the curriculum.
In 2016, after the applicant’s engagement at (High School X) had concluded, he engaged in an inappropriate conversation with a Year 9 student on Instagram.
In 2016, after the applicant’s engagement at (High School X) had concluded, he sent a message to a Year 8 student in which he called her ‘bub’ and inserted two ‘heart’ emoji.
In 2016, after the applicant’s engagement at (High School X) had concluded, he sent an inappropriate message to a Year 10 student.

These were the allegations for which positive findings were made by the workplace investigation, which subsequently ‘triggered’ the risk assessment. Other allegations were investigated in this context but did not result in positive findings leading to an overall finding of ‘sexual misconduct’.

Other allegations (not trigger allegations under Schedule 1 of the Act)

In 2001 an adult female colleague complained to the Principal that the applicant made suggestive comments, which made her feel uncomfortable.
In 2001 the female colleague also complained of the applicant engaging in stalking type behaviour – following her car, parking outside her residence, calling her five times in 30 minutes, delivery of flowers to her home following requests not to send her flowers. There was also a separate allegation of a ‘Barbie’ doll being placed on her teacher desk in the classroom in a suggestive position – the same or similar doll to one the applicant had.
In 2001 a police interaction following a traffic stop caused police to have concerns about the applicant’s behaviour (concerning possible self-harm).
In 2002 a Year 5 student complained that the applicant made her feel uncomfortable by giving her too much attention, inappropriate verbal responses such as taking up a job designing women’s underwear (in response to a question as to what he would do if he did not get a teaching contract the following year), and squeezing her leg on one occasion, as well as general classroom behaviour centred on the student that made her feel uncomfortable.
In 2002 another Year 5 student alleged that the applicant picked her up and spun her around.
In January – March 2004 three primary school children made complaints about the applicant’s behaviour: having a girl bend over to pick up litter (and her dress blowing up in the wind) – this occurred repeatedly - looking up the girl’s dress, an offer to take a primary school student to ‘Burger King’, and the applicant looking at a photo of a naked woman on his computer at lunchtime.
In 2006 (whilst under a behavioural management action plan) the applicant was accused of: giving excessive lollies and stickers as a reward, giving one student (Child ‘S’) a separate more substantial chocolate as a reward – singling certain students out for favourable or more favourable treatment, playing excessive games with the students with no apparent educational purpose. A subsequent investigation concluded that there was potential for his behaviour to be seen as using tactics to establish trust with a child for inappropriate purposes, as well as some observations about the applicant’s poor understanding of boundary issues.
In 2010 the school Principal had received information (via complaints) that: the applicant had ‘friended some of the Year 8 students on Facebook’, the Assistant Principal of a nearby school raised with the applicant’s Principal that some of their students (Year 11 girls) were worried about the applicant ‘friending’ them on social media. The applicant admitted talking to the students but dismissed any concerns as they were not students from his school. The applicant was told not to communicate with students via social media and provided with the social media policy. The applicant was also advised how this behaviour could be considered the preliminary elements of grooming a child.
In late 2010 a parent of a student made a complaint that the applicant had shown special attention to her daughter with a gift during the year, and some free (soft) drinks. In addition the applicant had found that student’s track suit at the School and delivered it to the girl at a Dance Class at a hall where she was on the weekend.

The ‘non trigger’ allegations action taken

The above points list the specific nature of the allegations. The initial complaints centred on inappropriate behaviour towards colleagues and concerns about his own behaviour due to depression. The first complaints involving students occurred in 2002 with the NSW Ombudsman investigating these matters.
The allegations above involving a student from year 5 concerned physical interaction between the applicant and the student (picking her up and spinning her around). This behaviour was admitted but said to be ‘mucking around’ to avoid colliding with the student. However the Ombudsman found that the applicant could have avoided the incident and sustained a finding of ‘unlawful touching’.
The Catholic Education Office (CEO) cancelled the applicant’s teaching approval in 2003 and the applicant sought treatment for his behaviour as there was evidence that his behaviours had adversely impacted on young persons. Following professional recommendations by the treating professional (Dr ‘M’), that the applicant return to teaching initially on a casual basis the following year, the CEO reinstated the applicant’s approval to teach.
In respect of the 2004 allegations, it was raised that the applicant did not seem to understand that his actions (however innocently intended) could be harmful to children in that they could easily misinterpret such actions. Subsequent investigations did not sustain any positive findings but further professional plans were put in place to manage and develop the applicant in order to lessen any reoccurrences.
Further treatment (counselling) followed but, in 2006, complaints were again made about the applicant ‘favouring’ one student. The CEO made findings of inappropriate conduct but not reportable conduct. The applicant was moved to other schools in the area under the management of the CEO.
In respect of the 2010 allegations/complaints about befriending year 8 girls on social media and girls from another school, the Principal advised the applicant not to communicate with students on social media. This was because such behaviour was against the school social media policy and could leave the applicant open to allegations of grooming.
The further late 2010 complaint concerning a particular student being shown special attention/favouritism including gifts and free drinks and the applicant delivering that student’s sporting kit to a dance class unrelated to the school on a weekend, resulted in the parent making a complaint to police about the matter. The Police did not take action on the complaint.

The issues to be decided in this application

What findings (if any) can be made in respect of the allegations against the applicant?
Is the applicant currently a risk to children having regard to the matters under s-30 (1) of the Act and (a) - above?
If the applicant is not a risk to children, would a reasonable person allow his or her child to have direct contact with the applicant that was not directly supervised by another person while engaged in child related work?
If the applicant is not a risk to children, is it in the public interest that he be granted a clearance?

We have decided to summarise the evidence given at hearing so that the strengths of the various arguments can be clearly set out.

Applicant’s Evidence at Hearing

In evidence-in-chief, the applicant adopted his affidavit.
In cross-examination the applicant was asked about his intervention treatment by Dr ‘M’ and he advised that the doctor was assisting him with personal stress concerning grieving the loss of his parents. The respondent questioned whether Dr ‘M’ had given the applicant any strategies or other assistance about maintaining boundaries when stressed. The applicant identified that he had and that there were sessions focusing on identifying stress issues and determining appropriate responses.
The applicant was asked about the counselling that he received from Ms ‘J’. The applicant stated that he started being treated by Ms ‘J’ in August 2015 after a referral from the CEO, and confirmed that he did therapeutic work with Ms ‘J’ concerning boundary issues relating to children. The applicant was also asked about his assessment sessions with his expert report writer. He was asked whether he had told the report writer (Mr J Borkowski) that initially the report was being sought for these proceedings. The applicant said that he had told Mr Borkowski and he had given him all of the material served by the Guardian in addition to the material that he had filed with the Tribunal. The applicant stated that he had a session with Mr Borkowski only a week prior to the hearing.
A series of questions were put to the applicant about matters which arose in one of his most recent teaching postings, in 2015. He was asked his knowledge of various social media policies issued by the CEO and the Code of Conduct for Sydney Catholic Schools. The applicant stated that he was aware of these policies but did not know them by heart. Various examples of a lack of understanding of boundary issues were raised with the applicant during cross-examination. Repeat issues concerning using social media to communicate with students were raised. The applicant was asked specifically whether he now accepted that connecting with students/children, as a teacher, online could be construed as grooming behaviour. The applicant stated that he understood that it could be considered grooming behaviour.
The applicant was taken to the record material relied upon by the respondent. He accepts that it shows that he was warned about social media breaches but could not recall actually being warned at the relevant time. The applicant was taken through a number of social media postings in detail and asked specific questions about each. He was unable to recall sending most of the messages that he was taken to, but did accept that he would have sent the messages. In addition he accepted that those messages would cause distress to a child. The applicant stated in his evidence that he specifically did not recall being told about the social media issues and grooming in 2010 and therefore was unable to recall it being restated or reinforced in 2015/2016.
The respondent took the applicant to what comprised the most significant evidence and matters upon which the cancellation was based. In 2017 an investigation sustained findings relating to allegations from 2015 and 2016 relating to contacting Year 7 and Year 9 students via social media. Most of the hearing and expert evidence focused on these matters. The investigation of these matters resulted in 37 students and one parent being interviewed.

The 2015/2016 social media complaints

The applicant characterised the 2015 and 2016 ‘social media’ matters as matters where he genuinely thought that some students were interested in his dog. (The applicant told the Tribunal that his pet dog was his closest companion at that time and that after owning him for many years the dog became ill and eventually died). The applicant said he was very emotional and vulnerable during this period as a result. The transcripts of the applicant’s interviews on these complaints was referred to during his evidence, and was contained in the s 58 Documents (s 58 ADR Act).
The applicant stated that he was at that school for seven and a half years and he finished up there because at the end of 2015 he was advised that the school did not have any available position for him in 2016. (The applicant did not have a permanent teaching position at the school). The applicant was taken through a number of items of evidence concerning the views of certain students (which are numbered ‘Student 1’, ‘Student 2’ etc. during the investigation).
Student 1 received a message (request) from the applicant on Instagram (a social media platform). She had received the message and talked about it with her mother who advised her to ignore it. Student 1 was aware that other students had received messages. Student 1 told the investigator that (because the applicant had left the school by February 2016), the whole thing ‘was a bit weird and I was kind of scared’. The applicant agreed during cross-examination that this evidence established that the matter was distressing for Student 1.
Student 2’s evidence to the investigator was that the applicant ‘reached out’ to her on Snapchat (another social media platform). The applicant had asked the student how she was and what classes she was in that year. The applicant had ‘added’ Student 2 on Snapchat but had then ‘unadded’ her as he thought that she would be annoyed. Student 2 asked the applicant ‘who they were’ and later ‘blocked’ him from their account. Student 2 told the investigator that she: ‘thought it was weird for a teacher to be communicating with a student on their social media’. (Pg 185 s-58 documents). The applicant did not recall messaging this student but accepts that he must have done so, and that the context of the message/contact caused some distress to Student 2.
The applicant explained his conduct at this time was predominantly based dealing with the death of his dog which had been a long term companion animal. The Applicant said that he was communicating with the girls about his dog, and that this was not a breach of any code other than the method that he was using (social media via Instagram). The applicant said that he was not conscious of the policy at the time due to being in a ‘bad place’ (due to the loss of his dog).
The applicant was taken to the transcript of the interviews with the students and was asked about whether photos were ever sent to any of the girls. The transcript indicated that Student 4 and her friend had sent one photo to the applicant via the platform and that the applicant had sent one photo back. The photo related to the applicant’s dog. The applicant however denied ever asking Student 4 or any other student to take and send him photos as well as denying sending Student 4 further messages.
The applicant was questioned about some communication that he had with students on the day of their 2016 swimming carnival early in that year. The applicant stated that at this time he was no longer a teacher. The applicant was communicating with up to four children on this day, possibly including Student 4. The applicant stated that on this particular day he was helping a friend cement render a wall and responding to messages.
The respondent indicated to the Tribunal and the applicant that the ‘sexual misconduct’ finding of this investigation related to an incident whereby the applicant sent a love heart image to a former student. This was in the context of ‘commenting’ on her and the applicant stated that one heart was sent on behalf of his dog and one for the student. Questions were put to the applicant concerning Student 8 and that the record of interview indicated that the applicant was ‘searching’ for her on the platform. The applicant accepted what Student 8 said concerning searching, in the context of how someone finds a person on specific social media platforms and sending ‘friend requests’.
The applicant also accepted the evidence that he had ‘followed’ some of the students on Instagram but denied ever doing so on Snapchat.
The applicant was asked how the social media interaction with students all began. His evidence was that he exchanged school emails and gave students his Instagram address. The evidence was that once a student ‘connected’ then others came in. The applicant was not able to broadly recall much of the respondents’ details and evidence concerning the social media contact with students but did accept that it was likely because that is what the students reported to the investigator. But whilst the applicant stated in his evidence that he accepts that harm was caused to some of the students he did not seem to accept that his use of social media caused the harm.
The applicant gave further evidence in cross-examination concerning the details of contact with students via social media and matters arising from the 2015/2016 investigation. There was evidence concerning Student 16 having a photo on her account site which showed some cleavage in the image. There was no evidence that the photo was intentionally provocative however the respondent questioned the applicant about his comment to the photo, being ‘cool pic’. There was some contention that the applicant had posted ‘hot pic’ but Student 16’s evidence was that this was not the case. Student 16 however conveyed to the Investigator that she had been ‘creeped out’ by the applicant liking or responding to the picture.
Further evidence concerned the applicant asking various students for permission to follow them on certain social media accounts. There was evidence of communication between the applicant and students about not telling other students that he was messaging certain students or not telling the teachers.
There was also conflicting evidence as to whether the applicant has given students his account address or had asked for their digital addresses. In total 14 students from that school had social media contact/communication with the applicant.
Additionally whilst various images were viewed on accounts and words were exchanged, other than a view about the photo that Student 16 had placed on her account, there was no other suggestion that the images themselves were unseemly, inappropriate or by themselves problematic. The issue of concern in the evidence related to the context and basis of the communication, and the boundary issues that were evident.
The investigator sent a notification to Community Services at the conclusion of the matter. The applicant did not believe that the totality of the matters amounted to anything sexual. The respondent took the applicant to a message that he sent to a student offering support and the opportunity to talk if needed. (Pg 300 s- 58 Documents). The applicant was asked why he sent that message and he said that the student needed some validation. When asked what this meant the applicant said that ‘the student had had a bad end of year and needed reinforcement’.
Various other pages of printouts from social media communication were contained within the s 58 documents at pages 293 – 321 inclusive. When questioned about some of the content the applicant conceded how it could be considered or interpreted as grooming behaviour by an adult towards a child. The applicant said the references to asking the girl he was communicating with to ‘don’t screen shot it’ (‘it’ being the post) was to prevent the other children knowing. He also agreed that the postings were behaviour of an adult sending messages to a child.

Other complaints

The applicant was taken to the investigation report entry for Students 7,11,12,15,16,19,22,25,26,28,29,35 and 38 at page 150 of the s 58 documents. The record summarised alleged questions which were considered unrelated to the applicant’s role as a teacher and possibly designed to develop a personal relationship or knowledge of the student, also referred to by the respondent as ‘grooming behaviour’. The questions concerned: inquiries into whether a girls’ mother was single or looking for a partner, talking about showing photos of his dog, and messages between girlfriend and the other party, relationship breakups and personal questions about family members.

The applicant only agreed that he had talked about showing photos of his dog, and either denied absolutely some questions and said that others were misquoted to reflect him in a poor light.
Reference was made to a letter of complaint from a female colleague where allegations amounting to stalking behaviour were made. The applicant denied these unsubstantiated allegations. In respect of the allegations that were put to him the applicant consistently stated during his cross-examination that most of the allegations have no basis, and the matters that he accepts as having occurred were not matters were he meant any harm. In his view others had misinterpreted his conduct including his intentions (if any).
The applicant’s position was that his understanding was that in the past some of his behaviour had been misinterpreted by students and that he now understood that this had caused them distress. An example of this cited by the applicant was the somewhat exaggerated allegations about a naked female on the applicant’s computer observed at the end of a lunch break, as reported by the girl ‘A’. The Principal had requested a forensic examination of the computer with no adverse sites or files identified. In addition (prior to the applicant even being aware of the allegation) ‘A’s mother had approached the school and advised that her daughter ‘A’ was not even really aware of what she saw, and that the girl had previously exhibited a vivid imagination. There were many allegations where the applicant was first advised or claimed to be aware of the matters after inquiries had concluded.
The applicant was also questioned about his conduct in the Catholic system in 2006 concerning the child ‘S’. The applicant stated that (in accordance with the investigation findings of that matter), that there was some evidence of inappropriate behaviour but that it was not sexual misconduct nor was it reportable conduct. The allegations concerned generalised behaviour that might amount to grooming. The child ‘S’ was seen as more vulnerable than other children in the cohort. However the investigation found that the behaviour was not targeted at ‘S’ by the applicant.
When questioned about the incident in late 2010 where the applicant dropped a clothing item (sporting kit) off to a female student (as set out at [33] above), the applicant said that he drove to the Community Hall and gave the item to an adult who was outside and asked that it be forwarded on to the student.
The applicant was asked about his non-expert witnesses and to what extent they were across the allegations and the Children’s Guardian’s case against him. The applicant said that all the witnesses were aware of all of the allegations.
The Tribunal also asked the applicant to confirm what child protection training he had received during his time in both the government and non-government teaching system. The applicant indicated that every two or three years he competed training modules in this area and in 1998 did an in service on the new requirements as they were being introduced to the teaching system.
The Tribunal observed that at the end of his lengthy cross-examination the applicant accepts that his past behaviour was inappropriate and caused harm to children.

Evidence of Applicant’s expert witness

Mr J Borkowski Forensic Psychologist gave evidence on day two of the hearing. The Tribunal asked the witness about his understanding of the Expert Witness Code of Conduct as there was no reference in his report. The Tribunal was satisfied that the witness understood his duty as an expert witness.
In cross-examination the expert was asked about his assessment. The expert advised that the applicant gave an outline of the circumstances of his situation leading to the cancellation of the clearance. The expert said that he had assessed the applicant’s risk of harm overall together with a risk of sexual offending.
The expert was asked whether there is any concern that the applicant acts in a way towards children that is not appreciated by children. There was an exchange of views as to whether an adult’s behaviour in and of itself can cause harm to a child (in the absence of any assault). Counsel for the respondent took the expert through some of the reported matters, noting that at page 6 of his report he had referred to ‘incidents’. The expert was asked what the applicant told him the incidents were he saw the applicant on 12 September 2018. The expert stated that he was referring to a comprehensive investigation undertaken on behalf of Catholic Schools which interviewed 35 students and one adult. The expert said that it was this and the sustained finding of sexual misconduct and the subsequent revocation of the teaching authority that he was referring to.
The expert was asked whether he would agree that the investigation report indicates that the applicant’s conduct had caused children emotional harm. The expert agreed in a qualified manner that it had, in that it is what the report found.
The expert was also questioned about a distinction between the conduct and interactions between the applicant and former students as contrasted with the matters involving current students. The expert advised that the more recent situation was different and the issues of concern slightly less as there was no longer a teacher student relationship, as the late 2015 and early 2016 matters occurred after the applicant ceased teaching due to no place being available.
The expert told the Tribunal that the applicant had participated in a follow up appointment earlier this year (since the report) where various matters were discussed and the applicant had admitted to the expert some of the problems. The problems had been present since at least 2002 where some sort of intervention was put in place concerning his behaviour around children.
The expert also advised that the applicant had had counselling and therapy with Dr ‘M’. His understanding was that one purpose of this was to assist the applicant in understanding his behaviour around children and to become more aware of it. The expert was asked to assume that the Principal told the applicant not to communicate with students by social media as he could leave himself open to grooming allegations and never work with children again. The concerning behaviour was repeated in early 2016. The expert said that this evidence demonstrates a relapse.
The expert said that it appears that there have been some strategies that have been in place but they have not been effective, and then there has been a relapse of the concerning behaviour. The expert added that on his assessment the applicant’s ability to follow directions and guidelines in place for teachers is compromised when he is suffering periods of acute stress.
The witness was asked whether, when the applicant was experiencing periods of acute stress, he could be confident that that the applicant could follow the guidelines on protection of children. The expert believed that there was a need for further or ongoing treatment. However in respect of the risk of ‘re-offending’ as assessed under the Level of Service Inventory (LSI) the expert noted that the applicant presented with a number of strengths and protective factors that place him in the low risk category. He was generally self-regulated, not impulsive, was able to maintain long-term interpersonal relationships and does not associate with anti-social or criminal elements or sub groups. The expert also noted that the applicant did not present with any mental health or personality disorders.
Concerning the risk of sexual ‘re-offending’ according to the ‘Sexual Violence Risk 20 instrument (SVR -20) the expert in noting his history found that the applicant presents with a low level of risk. In the expert’s opinion his risk was low but the following qualifying summary was given:

Notable in his profile however are indications of heightened emotionality, at times in which he may act impulsively or erratically. There is also a suggestion that his variable moods are experienced more intensely than what would be considered reasonable in the circumstances. As such, from a psychological perspective it could be reasonably hypothesized that [DOS’s] capacity for rational judgement and decision making may at times be compromised during times of personal stress.
To that end Mr [DOS] would benefit from ongoing psychological counselling or treatment to enable him the opportunity to develop strategies and coping skills to effectively manage difficult and or confronting situations.

Evidence of Witness ‘M.J.’.

‘M.J.’ gave evidence at hearing and provided an affidavit in the proceedings. She was the applicant’s counsellor for 15 sessions during the period August 2016 - August 2017. She adopted her affidavit in evidence and in cross-examination the witness talked about the discussion with the applicant of a number of the allegations. She also said that during the sessions they were focusing mainly on the social media matters.
The witness said that she was aware of the reasons as to why the applicant was not working, and that it was due to complaints about him. However the witness indicated that she was unaware that 16 students had made complaints about him,
The witness was asked whether she was aware that at the time she was treating the applicant, the CEO (by delegation) had finalised its investigation into the applicant. The witness said that she was not aware of this when she commenced the counselling, however she became aware of it during the informal support meetings that she had with the applicant after the formal session ended (as referred to in her affidavit).
The witness agreed with Counsel’s proposition that initially the applicant was prone to making bad decisions when stressed but she stated that now with treatment the applicant has significant strategies in place to avoid these problems.
The Tribunal asked the witness whether she knew the applicant prior to the counselling session. The witness answered that she did not know the applicant previously. The Tribunal also clarified with the witness that she was not providing a risk assessment (whether qualified to do so or not) and that she was involved in therapeutic treatment of the applicant up to August 2017 prior to taking up more of a support role after that time.

Evidence of witness ‘M.D.’

Mr ‘M.D.’ gave evidence and adopted his statutory declaration (Exhibit ‘A-11’). He had worked with the applicant before and after going on leave in 2005. The context was three weeks prior to his leave and two weeks after returning.
The witness was aware of the allegations relating to an incident in a primary school (identified in the evidence). The witness was also aware of more recent matters including the workplace investigation from early 2016. The witness said that he was only aware of improper conduct allegations not sexual misconduct allegations.
In re-examination the witness clarified that he had known the applicant for the majority of his teaching career. The witness was aware of the applicant’s casual contracts and had observed the applicant during employment at three schools.

Evidence of witness ‘K.D.’

Ms ‘K.D.’ provided a statutory declaration (Exhibit ‘A-4’) which she adopted. She had worked with the applicant from early 2001 to 2002 at a primary school where he was the relief teacher. The witness outlined how she was a specialist teacher who took up to half a dozen students out of classes including the applicant’s classes. She also observed him relief teaching at another school in 1998.
The witness knew the applicant also as a parent of a child that the applicant taught. The witness’s evidence was that the applicant was a good role model to students and that his compassion and caring nature had been misunderstood. In her oral evidence the witness outlined her knowledge of the allegations and those details and covered the main issues of concern to investigators and the respondent.
The witness did not believe (from a colleague, parent of a child and member of the school, and local community perspective) that the applicant was a risk to children. The witness also stated that from her observations and knowledge the applicant was neither properly mentored or supervised or trained in respect of interactions especially social media training.
The witness stated that the applicant really believed that he was being a kind person and in each incident that had been reported and examined that was all that he was doing. At the time she said that his belief was that he was doing nothing wrong. She also attested to his volunteer work and his character generally.
The Tribunal clarified with the witness the basis of her knowledge and opinion. The witness confirmed that some of her knowledge was based on what the applicant had told her, but her opinion was based on her own assessment of all the matters.

Evidence of witness ‘J.L.’

Another witness (‘J.L.’) gave evidence at the hearing. She adopted her statement (exhibit ‘A-10’) and there was no further examination of any detail beyond the statement. She had known the applicant as a parent of three children who attended a school the applicant taught at, one child being taught by the applicant. Her written evidence indicates that she had contact with the applicant in a number of ways including school committees, and by being involved in ‘school hours’ activities. The witness was aware of all of the adverse matters raised against the applicant and said that she would trust him with the care of her children. The majority of her written evidence referred to what could be summarised as ‘pro-social’ elements of the applicant.

Other evidence

The applicant filed a number of further character references where the authors were not required for examination by the respondent. ‘Fr R’, ‘Ms H’ and Ms S’ provided written statements marked as Exhibits: ‘A-5’ for ‘Ms H’. ‘A-6’ for ‘Mrs S’, and ‘A-8’ for ‘Fr R’. The written statement of ‘Ms H’ does not take the matter further. It is an opinion of the applicant rebutting the decision and finding of the respondent. The statement is brief.
The statement of ‘Mrs S’ refers to ten years knowledge of the applicant and refers to the applicant teaching one subject over seven and a half years to her daughter as well as being involved in the daughter’s sports team. The witness also referred to working with the applicant on school retreats and other school and parish based activities. The witness stated that she observed his behaviour and also observed feedback from others (adults and students) about the applicant. All of these matters were attested as positive to the applicant with no negative references.
The witness was aware of all of the allegations and in particular the 2016 investigation into the 2015/early 2016 ‘social media’ matters. The witness talked about the applicant’s personal difficulties towards the end of 2015 which she was independently aware of prior to any knowledge of the allegations. The witness believed that the ‘social media’ matters occurred at the time that the applicant was not his usual self, due to his concerns about his employment status (whether the casual contract could be renewed) and a lack of feedback from his employer.
The witness gave a lay opinion that the applicant was not a risk to children but also stated that she would be ‘most comfortable’ leaving her own children in his care.
The Statement of ‘Fr R’ refers to 15 years knowledge of the applicant as Parish Priest. The witness said that the applicant had discussed the various allegations over the years with him, and gave an opinion that the behaviour was not based on bad intentions or sinister motives.

Submissions

Applicant’s position / submissions

Both the applicant and respondent provided written submissions and made oral submissions at the end of the receipt of evidence. The applicant’s oral submissions were brief and he was given a chance to put matters in writing after the closing of the evidence so that he could fairly make his case. The respondent was given the opportunity to provide a written response to those matters.
The applicant's case is that in respect of the most serious matters, (assaults / touching) he denies them. In respect of the other matters, he concedes that his behaviour could have been misconstrued but that the Tribunal needs to look at the external factors impacting on his life at the relevant times, and that in addition he has now undertaken an intensive regime of intervention in order to lessen any real or perceived risk that he might have towards the safety and well-being of children. In addition he submits that since the risk assessment he has obtained expert evidence of significant weight establishing that he is now a low risk.
The applicant submitted that he had now done (and was continuing to do) all he could to rehabilitate himself or learn to establish the relevant professional distance from children, especially when he held a position of authority over children such as a teacher. The applicant said that he was still attending counselling and interventions and referred to the appointment he made prior to the hearing. His affidavit which was admitted without objection refers to some insight at paragraphs [90] and [91] where he would have acted differently concerning the social media matters. Further there is also evidence of psychological and progress with developing an understanding into the issues of concern about the behaviours and how to avoid such behaviours in future.

Respondent’s position / submissions

The case against the applicant could be summarised as one where the series of complaints and conceded behaviours demonstrate a lack of understanding or boundaries between adults and children, especially in a teacher or person in authority situation, and child welfare generally. This reflects the respondent’s general position which is made stronger by the significant interventions over 10 years or more, which appear to have little to limited impact in creating a relevant understanding of boundary / appropriate behaviours in the applicant when dealing with children for extended periods of time. The applicant, even with interventions, appears unwilling or unable to modify his behaviour in respect of young persons under his authority. His behaviour causes harm to children, even if there is no intent.
The respondent submitted that the issue in these proceedings is not that all of the matters go against the applicant, but rather than in times of stress his behaviour inadvertently causes harm. The Tribunal understands from this submission that the respondent agrees that there was never any intention by the applicant to harm others (in particular children) by any of the adverse matters raised by them. Rather that the applicant’s lack of insight and inability to manage stress caused behaviour that was harmful (consequentially) to children, and as a result the applicant was a risk to children. On this basis many of the points made against the applicant are not relevant to the issue to determine. There is some acceptance that incidents occurred that caused harm to children due to the children’s response to the behaviour. (Interpretation). This is not a matter where a rote consideration of each allegation is required. The matters that caused the assessment and finding are two suites of allegations, but there is an acceptance by all that a pattern of ongoing adverse allegations were made, some of which can be sustained and some were and are unable to determine on the current level of evidence. The applicant provided witnesses evidence to rebut some aspects of the respondents paper records comprising the allegations.
The respondent did not provide any witnesses even though it was open to them to provide some witnesses from the applicant’s prior employment. However as this is a protective jurisdiction we do not infer any adverse matters arising from the lack of witnesses for the respondent, merely that it was not possible to contemporaneously test the evidence of some of the applicant’s lay witnesses further, against such evidence.

The respondent acknowledged that the applicant has many statements in support of him, concerning his character and his positive impact and protective nature towards children. We note that some of those references were able to distil from the facts when the applicant (in their eyes) crossed the boundary line and his behaviour, however well-intentioned was inappropriate.
The main concern went back to the pattern of conduct. There was a reference to the school giving the applicant a warning about the social media contact and related matters where the applicant continued to behave contrary to the directions of the Principal. However the respondent acknowledged the applicant’s observation that most of the social media matters occurred after the applicant knew that he would not be returning to the school.
The respondent referred to the counselling imposed by the school with ‘Dr M’ over four years. This treatment was to address the types of matters which have led to the adverse risk assessment. The Respondent submitted that it is significant that there are still children misinterpreting the applicant’s behaviour, and that despite the interventions the behaviours continued.
The respondent also referred to aspects of the applicant’s own attempts to treat and mitigate his issues. It was submitted that Ms ‘J’s counselling was predominantly about self-care. The expert referred mainly to sexual offending but did not really address other behaviours harmful to children. Reference was made to the expert’s view (from October 2018) that the applicant still had some way to go before he was well capable of managing his behaviours in times of extreme stress.
However the respondent submitted that as complaints continued to be made throughout his career then there was no need to make findings on every matter. The respondent’s position was that the applicant remains a high risk of engaging in behaviours that may be harmful to children.

Post hearing submissions

The applicant responded to the outstanding material which he had not been able to address at hearing. He advised the Tribunal that for a significant number of allegations, he had no knowledge of the incidents including the circumstances. The applicant also pointed to factual matters whereby he stated that certain records relied upon by the respondent were false and inaccurate. For example the respondent stated in his submission of 29 April 2019 that:

I have no knowledge of ever being employed in any capacity by several of the schools listed on my WWCC display file including (school ‘V’, school ‘W’, school “X’, school ‘Y’ and school ’Z’).

The applicant also stated that much of the basis now put for action being taken to transfer or otherwise modify his duties and or placements, were either never previously explained to him, or where he knew the reasons it was contrary to the reason provided in the material from the respondent.
An incident said to have occurred in 2010 at a certain school was according to the applicant false, as he had never ever been to that school. The applicant also made references to the lack of procedural fairness in much of the investigations conducted into his alleged behaviours. He had received information through the current process which was far in excess of anything that he had been advised of at the time of any investigation or disciplinary or managerial action.
In reply to the applicant’s response the respondent filed a two page index or chronology response on 15 May 2019. On some matters the respondent conceded or accepted errors recorded in the material tendered by them. Other matters the respondent conceded were of little weight and they had not sought to cross-examine the applicant. The respondent concluded that many of the matters that the applicant was unaware of (without conceding the original lack of fairness) were cured when he was questioned during the hearing about them. They also submitted that most of these concerns do not add or detract from the central issue of whether he is still a risk to children.

Consideration

It is clear from the information provided by the applicant that he has not had many of the matters previously put to him. Whilst they were put to him by the respondent’s counsel in these proceedings there was an element of unfairness which we tried to cure by the opportunity to provide further submissions. Clearly if the applicant was not made aware of certain issues (as being problematic or worthy of inquiry or some other scrutiny) that would indicate that they needed to be raised in some way, not only for procedural fairness and natural justice grounds but in order to allow the applicant to understand that on a further occasion aspects of his behaviour was considered adverse, This would allow him the opportunity to either confront the allegation or accept aspects and attempt to mitigate.
However, in a child protection regime these matters are not the significant considerations, but in our view they have some worth in allowing persons to understand what others are concerned about and if appropriate, to address it. This aspect does go to child protection principles even if most of the other matters go to fairness and industrial law type matters, the later which are of little weight if any to the current process.
The issue in these proceedings appears to us to be about the pattern of allegations and the applicant’s demonstrated inability to adapt and modify his behaviour over many years when given the opportunity to do so, and specific treatment options to prevent any relapse of re-occurrence of his problematic behaviour. Having considered the evidence and submissions we will now consider the mandatory considerations in determining the matter in the way provided for under the Act.

Section 30 (1) considerations

Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review 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.

The applicant's application to the Tribunal is brought about by an adverse risk assessment triggered by the respondent becoming aware of a series of allegations concerning behaviour harmful to children. These matters are serious in that it is conceded that some of those matters caused harm to children and that most of the allegations had the potential to cause harm to children.
The matters that caused the assessment are:

On numerous occasions in early 2016 the applicant engaged in inappropriate conduct with students via Snapchat and / or Instagram.

The applicant instructed students not to disclose to anyone his interactions with them on social media.

In 2015 the applicant engaged in discussions of as personal nature with students not relevant to education or the curriculum.

In 2016, after the applicant’s engagement at (High School X) had concluded, he engaged in an inappropriate conversation with a Year 9 student on Instagram.

In 2016, after the applicant’s engagement at (High School X) had concluded, he sent a message to a Year 8 student in which he called her ‘bub’ and inserted two ‘heart’ emoji.

In 2016, after the applicant’s engagement at (High School X) had concluded, he sent an inappropriate message to a Year 10 student.

Whilst there are references to sexual misconduct as civil findings of workplace investigations, there is limited evidence that any of the matters would meet the proof material or elements of the offence for any criminal matters. However the matters are serious because of the context in which they occurred. In our view the evidence does not equate to matters under Division 10 Subdivision 9 of the Crimes Act 1900 concerning ‘grooming’ of a child because there is no evidence that the applicant did so with the intention of seeking any unlawful sexual activity. It is for this reason we infer that no police action arose.
However putting criminal definitions aside, it is clear that on the available evidence the behaviour constitutes ‘grooming’ in a Departmental (Department of Education) sense in terms of disciplinary action against staff. The matters are very serious and because they had the ability to (and in some instances did) cause harm to children, in the risk of harm to children context they are significant. The serious issue is that the behaviour in some instances caused harm (unintentionally or otherwise) to children.

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

It is clear that the matters referred to under s-30 (1) (a) cover a significant period being two years. They were not one off matters. The totality of allegations and findings in addition to the trigger matters range over most of the applicant’s teaching career. The first matter occurred 17 years ago and the last matters occurred two and a half years ago.

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

The age of the applicant when the trigger matters occurred was 44 to 46 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.

In respect of the trigger matters the victims were High School girls in Years 7 – 10. They were all children. The children were particularly vulnerable because the applicant was a teacher or former teacher at schools they attended. The applicant was male and the children were all female.

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

Based on the age range set out (above) the difference in age between the applicant and the alleged victims was approximately 30 years.
The allegations involved persons well known to the applicant, as their regular or occasional teacher or someone who taught at the school they attended. The children were therefore known to the applicant and the allegations concern the teacher building on information unrelated to his role as a teacher, such as their private lives and family dynamics.

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

The applicant clearly knew that the allegations in respect of all of the complaints (including the trigger matters) concerned children.

(g) The person's present age.

The applicant was 48 years old at the time of the hearing. The relevance being that offending (including sexual offending) generally declines with age and significantly past middle age.

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

The applicant does not have a criminal record or criminal history but does have police records concerning a traffic matter which occurred in 2001.
His conduct since the traffic matter from a risk to children aspect is problematic. Those matters are the basis of the adverse matters which are central to these proceedings. However the traffic matter is in our view irrelevant and of no bearing on these proceedings. There is no evidence of the applicant coming to any adverse attention other than the significant workplace complaints arising from his teaching duties.
The important allegations are set in the evidence and there is a list detailing all the relevant allegations at [34] above.
Nothing has come to light in the last two years. In making this observation we note that the applicant has not been working with children during that period.

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

The Applicant provided an Expert Report which following testing and assessment provided a risk of harm rating. Whilst the Expert stated on record that the applicant was a low risk of causing harm to children the Expert did observe that some further treatment would be of benefit in assisting the applicant to manage his behaviours during periods of high stress. These matters were raised because of the presence of heightened emotionality being observed in his profile. However the professional conclusion remained that the applicant was:

(pg 10).. a low risk of offending behaviour and would appear to be a low risk of potential harm to others including children.

The applicant had been subject to numerous complaints from 2000 – 2016 from multiple students and different schools. This establishes that up until 2016 the applicant was a significant risk of repeating damaging and problematic behaviours which might cause harm to children.
The respondent noted the number of interventions during that period and submitted that he has been unable or unwilling to change his behaviours during that time.
We note that if any offending or problematic behaviour was to occur in the future it is clear from the material before us that the impact on children would be significant.

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

There is no relevant evidence or matters to consider under this criteria.

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

The applicant tendered a number of character references in support, and the expert report. The applicant also provided a signed statement adopted in his oral evidence. The character references attest to a history of confidence and support of the applicant’s working with children even if that history has been peppered with adverse complaints. However all of the witnesses are supportive, and those with children attest to their confidence of the applicant’s protective features and would entrust their children into his care without hesitation. All witness sought to be cross examined by the respondent were. Those witnesses’ evidence in our view holds some weight, some of which is significant in determining his current risk and ability to discharge any onus of s 30 (1) and (1A).
The applicant was subject to cross-examination for the majority of the first day of hearing and gave explanations for his actions which in our view were truthful. We comment on his evidence further below. The majority of the applicant’s oral evidence under oath supports the versions that he had previously given. However the adverse history and matters concerning repetition of behaviours and allegations is significantly problematic.
The applicant’s own statement elaborates on the circumstances of his behaviour.

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

There is no material obtained under s 36A.

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

The respondent referred in written submissions to the applicant’s conduct with police in 2001 amounting to a matter in his criminal history. Whilst there is a reference to ‘have displayed behaviour that led police to believe he would likely assault them’, in our view that is not a criminal matter, but police speculation. No assault occurred, no offence was committed and no behaviour concerning the applicant (possibly arising from depression or distress) constitutes ‘criminal matters’.
The respondent referred to the incident where the applicant dropped a student’s gym top off on the weekend as a criminal matter. In our view it is not. It constitutes a report to police by an individual who believed that the applicant’s actions were somehow suspicious or aberrant. That evidence does not contain any matter that would constitute an offence.

The statutory approach

The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE, certain matters in the current case were not settled, in that the Courts had not been a position to make any positive findings on the conduct and the applicant.
At pars 29 - 33 of BKE the Court observed:

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).
30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).
31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):
“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).
33.The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 at p362: see BKE (above) at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities. 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 given by the applicant at hearing (and in documentary form), and for this reason we have set out above some of his evidence at hearing.

Findings

The necessity to make findings on adverse matters was set out in part in BKE and further addressed in the case of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that case His Honour Harrison J said that the first proposition is to determine whether a positive finding can be made or whether the allegations can be quickly addressed as groundless. If a positive finding can be made then that matter will generally have a decisive impact on the outcome of the application. In CFW the Court also referred to a lingering doubt where a positive finding could not be made and the matter was left open. The Court observed that this would count against the applicant.
However in the case of Children’s Guardian v CKF [2017] NSWSC 893 Davies J observed that the final proposition from CFW cannot be correct. At [56] the Court observed:

56. With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

We note that many of the allegations were refuted by the applicant and he took some issue with how his behaviours had been interpreted especially where third parties sought to provide written opinions as to his motivations. Like the observation in CKF we referred to the totality of the evidence and the necessary approach was confirmed by the respondent at the close of the evidence (see [107] and [113] above). In our view for those reasons there is no need to make positive findings on every allegation. In that regard we adopt the position we set out by the respondent at [113] were a rote consideration of each matter is not required.
Broadly for the purposes of assessing risk a significant number of matters have been conceded (factually) by the applicant. He admits that his prior behaviours were problematic and irrespective of intentions, his behaviours caused harm to children. In that context and noting the respondent’s submission to that effect, we have decided that we do not need to embark further on an examination of the evidence of each allegation and make findings. This is particularly so when none of the significant matters amount to violent or criminal conduct.
The real issue from a risk assessment perspective is the nature, similarity and frequency of the allegations, and that these behaviours have caused harm to children in the past, and the applicant has difficulty regulating his behaviours in times of stress. The pattern of allegations rather than any one individual allegation is the major matter that stands against the applicant.

Further consideration Senior Member McAteer

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.
As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.
Overall I observe that in respect of the allegations the applicant’s actions were serious, and problematic but not indicative of preying on children. Where we observe that they were not indicative of preying on children we are making a finding that the evidence leads us to that conclusion. I accept that others encountering the allegations with the absence of the applicant’s testimony and the totality of the material before the Tribunal could well form a view that the behaviour itself, prima facie was predatory. We have already indicated how some behaviours traverse the preliminary elements of grooming which would be considered a predatory behaviour.
As an example of the applicant’s unfortunate and misdirected actions and understanding we note that many of the complainants in the lengthy social media investigation were given suggested answers or leading questions by the investigator. I illustrate this by the reference to the photo of Student 16 where the evidence is set out at [58] above. The Student was given a suggestion (during the investigation) that the applicant wrote ‘hot pic’ whereas the facts were that he had said ‘cool pic’. This was but one of many examples where the students were led during their interview by the interviewer. However the consequences of the applicant ignoring a management directive to not engage with students on social media, and his lack of insight that even when no longer a teacher such behaviour could be misinterpreted from students is the real issue. The applicant’s various explanations for his actions do not mitigate the level of risk of harm to children which was potentially caused by his actions (being the actions as conceded by him).
The totality of this evidence supports a position where the applicant was unable to regulate his behaviour in respect of boundary setting when he was suffering depression or for some other reason was highly emotional.
In respect of his current and future risk I have significant regard to the findings of the expert report. There have been significant interventions by the applicant both with ongoing treatment with Ms ‘R’ over recent years and having to modify his behaviour as a result of the advice and treatment that he has received. I believe that the applicant has clearly developed an understanding of his deficits during the course of these proceedings and eventually displayed an insight (of his own election) as to how his past behaviours were interpreted and caused clear harm to children.
The case of Children's Guardian v CXZ [2019] NSWSC 1083 recently addressed the matter of how the Tribunal should consider risk when there are numerous adverse matters, or issues which were given weight in determining that an applicant or holder of a clearance was a risk to the safety and well-being of children.
At [294] in Children's Guardian v CXZ [2019] NSWSC 1083 the Court observed that the Tribunal needs to consider the cumulative effect, and to do so in the following manner.

294. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).
295. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.
296. In [152] and [153], the Tribunal referred to events having occurred up to 30 years ago but it is not made clear how that passage of time and how any risks arising from an earlier time have been the subject of the Tribunal’s deliberation. This is not to say the Tribunal did not place reliance on the evidence of the doctors as to risk diminishing over time and, as mentioned, their current estimate of risk, but that does not entail the Tribunal either specifically in relation to each allegation or in a cumulative sense discussing what risk was posed by CXZ based on their earlier findings (as I identified at various places in their decision earlier in this judgment).
297. There is nothing in the Tribunal’s discussion arising under the requirement of s 30(1) of the Act which would alter this conclusion. Nor do I consider that it would be inferred that the Tribunal addressed the risk posed by allegations 2, 3 and 4 on a cumulative basis having regard to the manner in which the Tribunal approached the assessment of risk. Each allegation was assessed as a silo. It is true that it was necessary to travel outside the principal discussion of the allegation (as relied upon by the Children’s Guardian ) in order to ascertain the Tribunal was discussing the ultimate or final issue of risk (described as the third stage) but the discussion, such as it was, concerned the particular allegation under consideration. In fact the fragmented nature of the discussion sits ill with the notion of some overarching discussion in the Tribunal’s conclusion drawing together the strands of its findings. I give some examples below.

I note these matters and reiterate that I have looked at the cumulative weight of the adverse matters constituting the pattern of teaching based boundary issues as the basis for our findings and determinations. The harm to children had been established so at the relevant time the applicant posed a risk. In making my findings I have considered all of the matters cumulatively, as this was the relevant course open to us. It is the totality of the matters and the similarity of allegations and incidents that constitutes the real case against the applicant (from the administrative decision) and which on review he has had to address.
I note that the Tribunal considered significant evidence in the applicant’s favour, which had been obtained since the adverse risk assessment. Whilst the expert concludes that the applicant is a low risk of harm to children, I note his expert evidence that he would benefit from more treatment in coping strategies to manage his behaviours in times of stress. This opinion was given with knowledge that the applicant had received a significant number of interventions over the preceding 15 years.
Based on a consideration of all of the evidence, I am satisfied that the applicant currently poses a real and appreciable risk to children. In my view, on the evidence and material before us, and having regard to the weight of evidence, based on consideration of all the circumstances I find that the applicant does currently pose a risk to the safety and well-being of children and young persons.
In my view the risk is greater than that of any adult harming a child in reference to the observation of Young J in the case of ‘V’, at [42].

'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". ...'

I 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.
It may be that having regard to the submissions of the respondent, and in particular the evidence of the applicant’s own expert, further time and treatment is necessary to lower the applicant’s risk of causing harm to children. However on the totality of the current evidence I do not believe that there are sufficient protective steps or measures in place, notwithstanding the finding of ‘low risk’. The series of relapses, and clear lack of adherence to the social media policy directive from his Principal, cause me to hold concerns that the applicant would not repeat such inappropriate behaviour which caused harm to children, the latter being a matter that the applicant concedes.
In reaching this position I note that it is a protective jurisdiction, and that the interests of the safety and well-being of children override any other interests.

Section 30 (1A) consideration and findings

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.

Having made the finding that we have, we are not required to have regard to this section because we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children in accordance with this Act
The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. As we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children, we are also not required to address this section.

Senior Member Houlahan

I depart from the reasoning of my fellow Member, Senior Member McAteer, and believe that the applicant no longer poses a risk to the safety and well-being of children. However because of the operation of s 57 (3) (a) of the CAT Act, the view of the presiding member will prevail. The section provides:

57 Tribunal divided in opinion
(1) If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.
(2)
(3) If the members are equally divided in their opinion, the opinion that prevails is:
(a) in proceedings in which the presiding member is an Australian lawyer or none of the members sitting are Australian lawyers—the opinion of the presiding member,

I agree that 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. I have based my consideration on all of the evidence provide by the applicant and his witnesses as provided at hearing and in in documentary form.
I agree with my colleague concerning how risk is to be assessed, and place significant weight on the expert evidence. As the task of the Tribunal is to determine risk, then consideration of allegations and the need to make findings about them is relevant only to that task. Overall I also observe that in respect of the allegations, the applicant’s actions were serious, and problematic but not indicative of preying on children. I accept that others encountering the allegations with the absence of the applicant’s testimony and the totality of the material before the Tribunal could well form a view that the behaviour itself was predatory.
I agree with Senior Member McAteer’s analysis of the evidence concerning Student 16, and the way that it was set out in the investigation report. The totality of this evidence supports a position where the applicant was clearly a naïve and problematic individual who was unable to regulate his behaviour in respect of boundary setting when he was suffering depression or for some other reason was highly emotional.
In respect of his current and future risk I have had significant regard to the findings of the expert report. There have been significant interventions by the applicant both with ongoing treatment with Ms ‘R’ over recent years and having to modify his behaviour as a result of the advice and treatment that he has received. I believe that the applicant has clearly developed an understanding of his deficits during the course of these proceedings and eventually displayed an insight (of his own election) as to how his past behaviours were interpreted and caused clear harm to children.
I agree with and adopt the analysis above concerning the case of Children's Guardian v CXZ [2019] NSWSC 1083which addresses how the Tribunal should consider risk when there are numerous adverse matters, or issues which were given weight in determining that an applicant or holder of a clearance was a risk to the safety and well-being of children.
I have looked at the cumulative weight of the adverse matters constituting the pattern of teaching based boundary issues as the basis for my findings and determinations. The harm to children had been established, so, at the relevant time the applicant posed a risk to children. In making my findings I have considered all of the matters cumulatively, as this was the relevant course open to us. Matters that were discounted or discarded are referred to in the joint reasoning. I agree that it is the totality of the matters and the similarity of allegations and incidents that constitutes the real case against the applicant (from the decision under review) and which on review he has had to address.

However, I also note that we considered significant evidence in the applicant’s favour, which had been obtained since the adverse risk assessment. I believe that the evidence given by the applicant at the hearing demonstrates a proper insight into his past behaviour, such that the likelihood of him engaging in behaviour that could cause harm to a child is highly unlikely. In making these observations I am mindful of the protective jurisdiction of these proceedings and that they are protective and not punitive. In my view the likelihood of the applicant harming a child even unintentionally would be very low because of the insight that he showed in his evidence, and an understanding and acceptance of his prior actions. This coupled with the preventative steps that he has taken reinforcement my view.
Based on a consideration of all of the evidence, I am not satisfied that the applicant currently poses a real and appreciable risk to children. In my view, on the evidence and material before us, and having regard to the weight of evidence, based on consideration of all the circumstances I find that the applicant does not pose a risk to the safety and well being of children and young persons.
In my view the risk is no greater than that of any adult harming a child in reference to the observation of Young J in the case of ‘V’, at [42].

'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". ...'

I 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. I have had regard to this consideration in reaching my view on the matter.

Section 30 (1A) consideration and findings

Having made the finding that I have, I am required to have regard to this section.
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.

In my 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 I refer to below I am 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 my view the reasonable person would approach the matter in the same manner as I have approached the section 30 (1) issues and risk, that is to look at the current state of play, and have particular regard to the evidence that was not challenged during the hearing by the respondent. In that regard I refer to the expert evidence and the evidence of the lay witnesses, especially the parents of school age children. Their evidence was broadly resilient after cross-examination and for that reason the weight given to that evidence did not diminish.
As I state above, particular regard would be had by the reasonable person to the evidence of the applicant’s witnesses, especially those where some weight can be applied to that evidence. Witnesses positively attested to the applicant’s pro-social and protective factors in both written and oral evidence. There is no issue that the majority of the witnesses were across conduct of the applicant in the intervening years and had observed him in a variety of situations around children as well as some peer opinions of the applicant.
A reasonable person whilst approaching the matter with some caution would, in my 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). The reasonable person is required to consider the matter objectively and in our view would reach a similar conclusion to the Tribunal.
I 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.

In the applicant’s situation a reasonable person would be aware of the circumstances of the evidence before us, and the findings of the expert and the ongoing attempts to address his deficits. Again I note the evidence of the parents who provided sworn statements in support of the applicant. The reasonable person would give these statements and testimony some weight. As a result, I 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
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.

In my view there is nothing contrary to the notion of the public interest in the granting of a clearance in this matter. I find that the balancing of the applicant’s desire to hold a clearance, bearing in mind the finding that I have made on risk, contrasted with the protection of children, are compatible 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 I believe that it is in the public interest to grant the clearance. Again I note the expert finding about the level of risk being low which I interpret from the methodology as being equal to that of any member of the community.
As a result I find that it is the public interest to grant the clearance.

Conclusion

For the reasons set out above, I reach the following conclusion.
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not currently pose a risk to the safety and wellbeing of children.
In my view, having regard to all of the material before the Tribunal, the applicant does not currently pose a risk to the safety of children.
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.
However because of the operation of s 57 (3) (a) of the CAT Act, the opinion and decision of Senior Member McAteer will prevail.

Conclusion Senior Member McAteer

For the joint reasons and my reasons set out above, I reach the following conclusion.
The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant currently poses a risk to the safety and wellbeing of children.
It therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
The application will therefore be dismissed.

Orders

The decision of the respondent dated 16 August 2018 to cancel the applicant’s Working with Children Check Clearance is affirmed.
The application is dismissed.

**********

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: 07 November 2019

Medium Neutral Citation:	DOS v Children’s Guardian [2019] NSWCATAD 231
Hearing dates:	24 January 2019, 12 April 2019Submissions closed 15 May 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member L Houlahan, Senior Member
Decision:	1. The decision of the respondent dated 16 August 2018 to cancel the applicant’s Working With Children Check Clearance is affirmed. 2. The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – pattern of allegations – allegations conceded – whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – whether sufficient time to rehabilitate
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 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 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 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 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 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.
Category:	Principal judgment
Parties:	DOS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: Applicant (Self-represented) Crown Solicitor(Respondent)
File Number(s):	2018/00279854
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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.