DVM v Children's Guardian

[2020] NSWCATAD 323

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

DVM v Children’s Guardian [2020] NSWCATAD 323

Hearing dates:

3, 12, 13 August and 12 October 2020

Date of orders:

22 December 2020

Decision date:

22 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member
S Davison, General Member

Decision:

1.        The decision of the respondent dated 3 April 2019 to refuse the applicant’s working with children check clearance is set aside..

2.        In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

Catchwords:

CHILD protection – Working with children –Indecent assault allegations – No sexual intent to physical contact with children - Acquittal at trial – Costs order in favour of applicant following criminal trial – Civil suit for malicious prosecution, wrongful arrest, false imprisonment settled in applicant’s favour – Relevance of Autism Spectrum Disorder to risk to safety of children – Neutral position adopted by Children’s Guardian.

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v BRL [2016] NSWSC 1206

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

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

Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255;

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

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

Texts Cited:

Responding to Allegations against Employees in the Area of Child Protection NSW Department of Education and Training PD/2004/0008 Implemented 10 June 2010

Category:

Principal judgment

Parties:

DVM (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Lowson (Respondent)

Solicitors:
Greg Walsh & Co (Applicant)
Garth Barwick Chambers (Respondent)

File Number(s):

2019/00131757

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited (section 64(1)(a) of the Civil and Administrative Tribunal Act 2013)

reasons for decision

Summary

1. The applicant, who will be referred to as DVM, worked as a primary school teacher for over thirty years. Following allegations he had indecently assaulted students at the school where he was last teaching, he was terminated by the Department of Education and his working with children check clearance was cancelled.

2. The applicant was charged with twenty-nine counts of aggravated indecent assault and acquitted on all counts. Costs were awarded in his favour and a civil suit, commenced by the applicant for wrongful arrest, false imprisonment and malicious prosecution, was later settled in his favour. Following his acquittal, the applicant applied for a working with children check clearance to enable him to return to teaching, particularly in the area of special education, and to allow him to become involved in children’s ministry at his church.

3. Because criminal proceedings had been commenced against the applicant under s61M of the Crimes Act, the Children’s Guardian was required to undertake a risk assessment for him (see ss 14 and 15 of the Child Protection (Working with Children) Act 2012).

4. Following the risk assessment, the Children’s Guardian refused to grant the applicant a working with children check clearance. The applicant has sought a review of this decision. At the end of the proceedings before us, the Children’s Guardian adopted a neutral position - that is, neither supporting nor opposing the applicant’s request for a working with children check clearance.

5. For the reasons that follow, we have set aside the earlier decision of the Children’s Guardian to refuse the applicant a working with children check clearance and directed that a clearance be granted to him.

Issues

6. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

7. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

1. whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

2. whether it is in the public interest to grant the applicant a working with children check clearance.

Does the applicant pose a real and appreciable risk to the safety of children?

8. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children’s Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. The Children’s Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children’s Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children’s Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children (s5B and s18 of the Child Protection (Working with Children) Act 2012).

9. In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered the following:

1. whether the applicant inappropriately touched students who attended the school where the applicant last taught;

2. whether, in light of his mild Autism Spectrum Disorder, the applicant has the ability to look after children in his care; and

3. whether the applicant has gained insight into his behaviour.

10. We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

Background

11. The applicant was charged with 29 counts of aggravated indecent assault relating to seventeen complainants. The complainants were students ranging in age from seven years to twelve years who attended the school at which the applicant had been a teacher for many years. The allegations related to actions that took place in public, in view of other people, and included smacking on the bottom, placing a hand on the chest area, placing a hand or touching or squeezing the bottom, patting a student on the stomach, pulling the student onto his lap, placing an arm around a student’s shoulders and placing a hand around a student’s waist.

12. The allegations arose following a ‘no-go-tell’ class taught to students at the school. At this class, the students were encouraged to talk about any instances of touching that had made them feel uncomfortable. After the class, a number of students disclosed that some touching by the applicant made them feel uncomfortable. The allegations were subsequently referred to the police and the applicant brought to trial in the District Court before a judge sitting alone (that is, without a jury).

13. In finding the applicant not guilty of all 29 counts on the indictment, the trial judge found he could not be satisfied beyond reasonable doubt that the applicant had any sexual intent when touching the complainants. In making this finding, the judge accepted that the applicant had Autism Spectrum Disorder.

14. In awarding costs to the applicant following his acquittal, the judge found that if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings.

15. The Tribunal considered a wealth of material in determining this matter. In addition to medical material pertaining to the applicant’s health, this included statements and police records of interview from the 17 complainants in addition to transcripts of the cross-examination of the complainants.

16. Statements of similar complaints made against the applicant by people who did not give evidence at the applicant’s trial were also considered in these proceedings. As these people had not previously been tested on their statements and were not made available to be cross-examined at these proceedings, we have given negligible weight to this material (see Commissioner for Children and Young People v FZ [2011] NSWCA 111 and Children’s Guardian v BRL [2016] NSWSC 1206).

Did the applicant inappropriately touch students who attended the school where applicant had last taught?

17. The applicant began his teaching career more than thirty years ago. There is no evidence that he had been the subject of any complaints in previous schools where he had been a teacher. In relation to the allegations of aggravated indecent assault made against the applicant at his last school, the Children’s Guardian does not contend that the applicant’s conduct was in any way sexualised. Rather, it has been the Children’s Guardian’s position that such conduct may make children uncomfortable and place them in a situation where they find it difficult to complain and that it may blur the boundaries around personal space, thereby potentially confusing children.

18. It is agreed that all the touching that formed part of the allegations against the applicant occurred in the open and in view of other students or teachers.

19. The applicant provided statements and gave oral evidence in these proceedings. We found him to be an open and honest witness. The applicant does not dispute that he would give students a pat or a flick on the back including the lower back and that he would place an arm around a student’s shoulder and touch a student’s shoulder. He agreed that some students would climb onto his lap but denied ever pulling students onto his lap or encouraging them to sit on his lap. Rather he would remove the children from his lap and tell them to instead sit on the floor.

20. Although some of the complainants gave evidence that the applicant had touched them on the bottom, the applicant denied ever patting, squeezing or smacking students on the bottom. In oral evidence before us, he agreed that although he may have intended to touch the students on the lower back, it was possible that the students may have perceived that he had touched them on the bottom. He also agreed it was possible that although he intended to touch the students on the lower back, he may in fact have ended up touching them on the bottom, just because the children were moving or because of the nature of those kind of interactions.

21. On the evidence before us, we are satisfied that whilst the applicant may, indeed, have touched students on the bottom, it was not his intention to do so. Rather, it was his intention to pat them on the lower pack, generally as a gesture to send them on their way after having spoken to them.

22. The applicant agreed that, on occasion, he would lift students up by the waist to enable them to reach the top of the whiteboard so they could wipe it. In oral evidence before us, he stated that he ‘most certainly wouldn’t do it now.’

23. Whilst several of the complainants claimed that the applicant had pulled or placed them onto his lap, the applicant gave evidence that although some students had climbed up onto his lap, he had never encouraged this and had told them to get off and to instead sit on the floor.

24. This evidence was corroborated by his former principal, who also gave oral evidence in these proceedings. She spoke of a discussion she had with the applicant, prior to the allegations of indecent assault having been made against him, in which he told her that ‘sometimes girls sit themselves on my lap and I push them off…I also let parents of these children know that they are doing this.’ The former principal advised the applicant to tell this to parents in the upcoming parent-teacher interviews. Statements from parents of students at the applicant’s last school corroborate the applicant’s oral evidence that he did ask parents to tell their children not to climb up onto his lap.

25. The former principal also gave evidence that because the applicant had a back condition, he would often sit down in the classroom rather than stand up:

He told me that sometimes girls sit themselves on his – on his lap. He said – he said to me – he often – he had a back injury, and he often sat down. He actually had three chairs – three different swivel chairs in his classroom, and he would move from chair to chair. And, his explanation was that the children lean up against him, and sometimes they sit up against his lap. And, on this occasion he said that. And, he also said that he immediately pushed them off, and mentioned the name of one child in particular.

26. The applicant’s former principal described the applicant as a ‘touchy-feely teacher’ whose physical contact with the children was very overt and out in the open in front of parents, staff and other children:

I would often pop into [DVM’s] classroom on a daily basis for short periods of time. The children in his class appeared to be happy. The children were always laughing. [DVM] would often joke around with the children and his passion was drama, so there would always be lots of singing, performing and reading …. [DVM] was outgoing and friendly and funny. The kids appeared to love him. I also noticed [DVM] was ‘touchy feely’ type of teacher. There were plenty of times both in the classroom and in the playground and openly that I would see [DVM] put his arms casually around the children, place his hands on the shoulders of children as he looked over them. He would also sometimes rest his elbow on the shoulder of a child as he joked with him. This was done in the presence of staff members, children and parents.

27. In her oral evidence during these proceedings, the former principal agreed that when she saw the applicant physically interact with students, she had not formed the view that what he was doing was inappropriate, rather that ‘those sorts of behaviours were just – I suppose – were common, common for him.’

28. In response to the question, ‘In respect of other teachers, apart from DVM, for instance in the playground...did you ever see them maybe put their arm around a child’s shoulder, or pat a child on the head, or on the back, to encourage them,’ the former principal gave the following reply:

I probably did. Like, especially teachers of small children will often do that, particularly if a child falls over, or if a child’s crying, or if a child is sad. It is just human nature.

29. She agreed that during her time as principal in the school, prior to the complaints that resulted in the charges being laid against him, she hadn’t spoken to the applicant about any specific concerns about his behaviour in the classroom and out in the playground.

30. In her oral evidence, the former principal agreed with the protocols set out in the NSW Department of Education and Training document Responding to Allegations against Employees in the Area of Child Protection (implemented 10 June 2010) that, in relation to teacher-student relationships, it was appropriate to ‘physically contact students in a way that makes them comfortable, e.g. shaking hands, a congratulatory pat on the back, or with very young students by gently guiding them or holding their hand, or reassurance, or encouragement.’ She also agreed with the protocol that ‘when students, particularly very young children, are hurt and seek comfort it is appropriate to provide reassurance by putting an arm around them.’

31. Ms Edwina Birch is a consultant clinical psychologist who gave oral evidence in these proceedings. Ms Birch has practised as a Child, Adolescent and Family psychologist in a Community Health Team and, from the early 1980s, trained teachers to teach protective behaviours in primary schools. She has been engaged to write behaviour management plans for children that have included social touching.

32. Ms Birch gave the following opinion in relation to teachers touching children:

During the past twenty years or more I have observed that reactions to teachers touching children in a healthy way have changed. My opinion is that these changes are more often than not for the protection of the adult rather than the child. What has changed, partly due to ‘Protective Behaviours’ education, but also due to children being exposed to increased access to the media, is a change in attitudes and behaviour of children at an earlier age. What was acceptable when [DVM] started teaching over thirty years ago, is not necessarily accepted practice today.

33. It is Ms Birch’s opinion that:

[DVM] had proper boundaries for Infant and Primary School children, until our children became more sophisticated about touch. By Year 5/6, children today are educated about touch in its sexual context. Touch however remains a very important part of a child’s development. His mistake was not to pull back on social touching for Year 5/6…Sadly for children we are in danger of denying them touch as a positive development tool for increasing trust, emotional wellbeing and cooperation, because of the fears of adults, caused by the behaviour of a few. There has been no evidence that [DVM] touched these children in a sexual way, it was social touching. In my opinion, children are safe from inappropriate touching by [DVM], and they will not receive social touching.

34. Ms Birch told the Tribunal that she would not have any concerns for the welfare of any children who had direct, unsupervised conduct with the applicant. If she had any concerns at all, it would be concern for the applicant’s anxiety.

35. We accept Ms Birch’s expertise in the area of protective behaviours in schools and give weight to her evidence in these proceedings.

36. The forensic psychiatrist, Dr Olav Nielssen, both provided a report in relation to the applicant and gave oral evidence in these proceedings. According to Dr Nielssen, there is no information to suggest that the applicant has a disorder of abnormal sexual interest that might predict offences against children.

37. In a report prepared for these proceedings, Dr Nielssen gave the following opinion:

The reported behaviour in physically comforting children is consistent with the impaired ability to interpret social cues associated with his condition and would be considered inappropriate in the current climate, just as corporal punishment is now not permitted. However, there is no indication of any kind of sexual motive for the behaviour or that the behaviour amounted to an offence against the children… [DVM] is now aware of the requirement to maintain a social distance with children… He is of above average intelligence and able to learn from instruction, he does not have a disorder of abnormal sexual interest, and [in] my opinion, it is very unlikely that [DVM] would repeat the conduct that was the subject of the complaints against him… I did not identify any features of [DVM]’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care if he were to return to teaching.

38. In his oral evidence, Dr Nielssen confirmed that, upon examination, the applicant did not present as having an abnormal interest in children. Had this been the case, it is Dr Nielssen’s view that such a tendency would have emerged earlier in the applicant’s life. He confirmed that the applicant has a disabled son and that there has been no suggestion that the applicant’s conduct towards his son has ever been inappropriate.

39. On the evidence before us, we are satisfied that the applicant’s touching of students was devoid of any sexual intent.

40. We accept that the scale of physical contact perceived to be appropriate has changed in recent years and that on the evidence before us, it would appear that only physical contact that is necessary between a teacher and student is now seen to be appropriate.

38. Using this standard, it would be inappropriate to lift up a child to wipe down a whiteboard, which could be perceived as invading a child’s personal space, or to pat a child on the lower back which could be perceived as touching the child’s bottom and thereby make them uncomfortable. For these reasons, we are satisfied that the applicant’s actions in lifting up a child by the waist and patting a child on the lower back - such that the child might be of the belief that the touch was to the bottom - were inadvisable, despite an absence of any sexual intent.

39. It would also be inappropriate to allow a child to sit on a teacher’s lap as it may blur boundaries around personal space. On the evidence before us, however, we are not satisfied that the applicant ever allowed a student to sit on his lap but instead told children to get off his lap when they tried to climb up.

In light of his mild Autism Spectrum Disorder, does the applicant have the ability to look after children in his care?

43. In addition to Ms Edwina Birch and Dr Olav Nielssen, the psychiatrist, Dr Adrian Keller, provided a report in relation to the applicant and gave oral evidence in these proceedings. We also considered reports by the clinical psychologist, Dr Julie Peterson, and the psychiatrist, Dr Bruce Chenoweth.

44. In 2017, Dr Julie Peterson, found that the applicant met the diagnostic criteria for a man with an Autism Spectrum Disorder – Level 1 (which was previously defined as Asperger’s Syndrome). In her report, Dr Peterson describes Autism Spectrum Disorder as a ‘pervasive, life-long developmental disorder with an onset in early childhood.’

45. According to Dr Peterson, Autism Spectrum Disorder – Level 1 is characterised by

…impairments in social functioning, for example, a poor ability to read or pick up on social cues, an inability to read or assess people’s thoughts, feelings, behaviour and intention…People with ASD, including [DVM] have a difficulty understanding the thoughts, feelings, behaviour and intentions of others using intuitive understanding of body language, tone of voice, facial expressions and gestures.’

46. In a report dated 18 October 2017, the consultant developmental psychiatrist, Dr Bruce Chenoweth, described the following traits exhibited by the applicant:

[DVM] has always not been able to assess accurately what is transpiring between people at an intimate or social level… He will accept a very literal interpretation of events and not extrapolate to a wider context. For example, when informed that some of the girls in the playground had felt discomfort about him touching them, he instantly abstained from touching specifically those girls only, and was unable to extrapolate to other youngsters. He did not regard any of the touching of children as inappropriate, and stated that that is what he had done for 30 years of teaching, and nobody had complained previously. That the world has changed greatly in 30 years, rendering physical contact between male teachers and children both inappropriate and taboo, was a complete mystery to him. It was as though he had not appreciated any of the social changes, many of great magnitude, which have occurred in those 30 years… On the basis of what I know of him, I doubt that there were sexual overtones in whatever touching transpired in the school ground, and am led to believe that his touching of children was inappropriate in the context of his underlying inability to understand the possibility that his actions might be construed as having other connotations.

47. Since the applicant’s arrest in 2015, he has received substantial psychological and psychiatric treatment. He has regularly attended upon a general practitioner and has been referred to psychologists including Mr Lumbewe and Ms Birch. He has also been assessed by Ms Peterson, Dr Nielssen and Dr Keller.

48. In a report prepared for these proceedings, Dr Keller gave the following opinion:

[DVM]’s insight into what is now considered to be inappropriate or potentially harmful physical contact between an adult and child is sound and his motivation to maintain appropriate boundaries is strong. He is aware there are clear and serious consequences for breaching these rules as they have been outlined.

49. Dr Nielssen gave evidence that the touching that led to the complaints involved tactile teaching by the applicant that was also used to comfort the children. It is Dr Nielssen’s opinion was that the applicant’s use of tactile teaching did not adjust to the changing times. He noted that the applicant’s diagnosis of mild Autism Spectrum Disorder contributed to him continuing to teach in this manner without realising that the standards and conventions in relation to tactile teaching had changed. Dr Nielssen is of the view that the applicant now appreciates the change in standards and conventions and knows how to behave in the future. Although Dr Nielssen agreed that a person with Autism Spectrum Disorder may find it difficult to transfer learning from one situation to another, he noted that the applicant’s Autism Spectrum Disorder is mild and that he has many years of teaching experience.

50. In light of the applicant’s difficult experiences with the criminal justice system and his fears of being again called to account to the authorities, Dr Nielssen said he would be surprised if the applicant ‘ever laid hands on a child again.’ Dr Nielssen described the applicant as an intelligent man who is now aware of the relevant norms and expectations in relation to physical contact with children. Dr Nielssen is of the view that the applicant also understands that physical contact may make children uncomfortable and that he would not like to place children in such a position.

51. Dr Nielssen discounted the view that the applicant’s hesitancy to touch his own grandchildren was due to the applicant’s rigid thinking associated with his Autism Spectrum Disorder. Dr Nielssen expressed the view that he himself has the same anxiety due to the extreme publicity in relation to physical contact with children. He accepted that inflexibility caused by Autism Spectrum Disorder would make this a little harder to reconcile.

52. The Children’s Guardian expressed the concern that, in light of the applicant’s Autism Spectrum Disorder, and the rigidity in his thinking, he may be so reticent to engage with children, he may fail to intervene in an emergency situation.

53. In relation to these concerns, Dr Nielssen expressed the view that given that the applicant had been a teacher for over thirty years and had dealt with such situations before, he was confident that the applicant would deal with an emergency situation appropriately. He gave evidence that the applicant’s ongoing psychological therapy had been helpful in addressing his fixed thinking and had increased his self-awareness and commitment to behavioural change.

54. Whilst the applicant agreed that although he would be reluctant to physically touch a child in the aftermath of his criminal proceedings, he gave evidence that he would intervene and have physical contact with a child as required where an emergency arose, including giving appropriate first aid treatment. He also agreed that he would be prepared to have physical contact with children to the extent needed to be able to properly look after them. He accepted that more physical contact would be required when looking after very young children and gave evidence that he is feeling more comfortable around children than he had been twelve months previously.

55. In light of this evidence from both the applicant and Dr Nielssen, we do not share the concern raised by the Children’s Guardian that the applicant might fail to assist a child in an emergency where physical contact was required. On the evidence before us, we are satisfied that the applicant is capable of looking after children in his care and that while, in light of his earlier prosecution, he would be hesitant to have any physical contact with children, we are satisfied that he would do what was required to ensure their safety. In reaching this finding, we give particular weight to the opinion of Dr Nielssen that as the applicant had been teaching children for thirty years and had previously dealt with emergency situations, he would expect the applicant to be able to continue to deal with such situations as they arose.

Has the applicant gained insight into his past behaviour in relation to his physical contact with students?

56. In his statement dated 18 October 2019, the applicant declared that ‘in all the time I have been a teacher, I have honestly believed that I have always acted entirely appropriately towards my students. My career as a teacher has been of a fundamental importance to me and I have always taken my duties as a teacher with the utmost seriousness.’

57. In his statement, he discusses what he has now learnt during his treatment with the psychologist, Ms Birch:

A repeated issue which has arisen is that of any physical contact with young people/children. In specifics, it involves ‘touching’ of a child, whether on the shoulder or back or at anytime at all… I have, through the entire process, accepted without any hesitation, the fact that a teacher must/cannot touch a student in a physical way. Ms Birch has explored with me that touching of a student for purposes of encouragement, is not permissible. This includes allowing appropriate personal space to a student. I say without reservation, that I have an acute awareness of these issues as a result of what has happened to me.

58. In his report dated 23 July 2020, Dr Adrian Keller, psychiatrist, stated that:

[DVM]’s insight into what is now considered to be inappropriate or potentially harmful physical contact between an adult and child is sound and his motivation to maintain appropriate boundaries is strong. He is aware there are clear and serious consequences for breaching these rules as they have been outlined…. Although I have previously stated that people with [Autism Spectrum Disorder] are more prone to being inflexible with respect to their own internal rules, and have difficulty picking up subtle social cues, I believe that [DVM] possesses an adequate level of intelligence to sufficiently be able to learn from aversive experiences, to recalibrate his own internal rules in relation to this matter.

59. On the evidence before us, we accept that the applicant’s treatment since 2015 has given him increased insight into the circumstances of his physical touching of the complainants and the impact upon them.

60. The applicant showed particular insight in relation to the need to make sure children did not sit on his lap, making the observation that he didn’t feel comfortable having children on his lap because he didn’t think it was an appropriate thing for them to be doing.

61. After explaining why it was important to be sitting in front of the class - without a desk in front of him - to best run reading activities, he agreed that with hindsight, it would possibly have been a good idea to have a chair there next to him to encourage the children to sit on it. He agreed that he should have had stronger boundaries.

62. He agreed that, while he had previously lifted a student up to enable them to wipe the top of the whiteboard, he confirmed, in oral evidence, that he ‘most certainly wouldn’t do it now.’

63. He also gave evidence that while he had previously ‘put my hand on their shoulder, touch – pat [a student] on the back, possibly touch them on the head… that’s something that there’s no way in the world that I would – I would even think of doing that now.’

64. On the evidence before us, as considered above, we are satisfied that the applicant has gained insight into his past behaviour in relation to his physical contact with students.

Consideration of the s30(1) matters

65. As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar (s30(1)(a))

66. As set out above, the applicant was accused of inappropriate touching of students ranging in age from seven to twelve years who attended the school at which the applicant was a teacher. He was charged with 29 counts of indecent assault, was acquitted on all charges with costs awarded in his favour. As set out above, we accept that there was no sexual intent to the touching and that the applicant has now gained insight that such touching of students may make them uncomfortable and should be avoided.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

67. The applicant’s conduct resulting in his prosecution for indecent assault last occurred in November 2015. Since that time, the applicant was charged with and subsequently acquitted of 29 counts of indecent assault, a costs order was made in his favour by the trial judge, his employment with the Department of Education was terminated, and he recently reached a settlement in relation to his claim against NSW Police for malicious prosecution, false imprisonment and wrongful arrest. In 2017, he was diagnosed with mild Autism Spectrum Disorder and has been receiving psychological assistance to manage symptoms of the disorder and to deal with depression and anxiety as a result of the criminal proceedings brought against him.

68. As set out above, we are satisfied that the applicant has gained insight into his actions and is mindful of any discomfort shown by children around him and will be circumspect in relation to any physical touching of children. We are satisfied that his depression and anxiety has been managed such that we are satisfied that he would be able to look after children in his care in an appropriate way, including physically touching them if required to secure their safety.

69. As set out above, we are also satisfied that his mild Autism Spectrum Disorder would not prevent him from providing appropriate care to any children under his supervision.

The age of the person at the time the matters occurred (s30(1)(c))

70. The applicant was aged between 55 and 57.

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 (s30(1)(d))

71. The complainants were aged between seven and twelve years of age, and were either students of the applicant or students at the school where he was a teacher. The complainants were vulnerable in that the applicant was in a position of authority over them.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

72. The applicant was aged between 55 and 57 years, while the complainants were aged between seven and twelve years.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

73. The applicant knew the complainants were children.

The person's present age (s30(1)(g))

74. The applicant is now 62 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

75. The applicant has no criminal record and has not come to the attention of the authorities since his arrest on the charges of which he was subsequently acquitted.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

76. We are not satisfied that the applicant ever indecently assaulted any of the complainants, nor that he ever had a sexual intent when physically touching them.

77. For the reasons set out above, we are satisfied that the applicant has gained insight into what constitutes acceptable physical contact with children and we are satisfied that he will ensure that any future physical contact with children adheres to this.

78. On the evidence before us, we are satisfied that the applicant now understands that children may feel uncomfortable by any physical touching by a teacher, even where the intention behind that touching is simply to encourage or to show support. We accept that the applicant has never intended that students might feel uncomfortable around him and are satisfied that while the applicant will be prepared to touch children if this is required to keep them safe or to provide adequate care for them, he will otherwise refrain from unnecessary physical contact.

Any order of a court or tribunal that is in force in relation to the person (s30(1)(ii))

79. There are no such orders in place.

Information given by the applicant in, or in relation to, the application (s30(1)(j))

80. A number of references, ranging from colleagues, parents of students and friends of the applicant’s children to the applicant’s church minister and members of the applicant’s own family, are contained on file stating their trust in the applicant.

81. A friend of one of the applicant’s daughters, who also attended the school where the applicant taught, described her interactions with the applicant stating that ‘not once during any of these interactions did I feel as a student/child uncomfortable in his presence but [DVM] always made me feel safe in a school environment, as a friend’s father and as a member of the public.’

82. The mother of a teenage daughter stated that she and her teenaged daughter had spent significant time with the applicant who had ‘always behaved with integrity and respect towards us both.’ She stated that ‘I have never, nor do I now, have any hesitation or concerns with either me or my daughter being in [his] company either attended or unattended.’

83. A mother of a friend of the applicant’s daughter allowed her daughter to stay overnight at the applicant’s house stating that ‘at no time did I ever have the slightest hesitation or concerns in allowing my daughter to spend time in his home with him and his family, as I knew that his home was a safe place for my daughter to be, and she liked spending time there… At no time while my daughters were at his school did I hear of any complaints or concerns over [DVM’s] conduct or professionalism.’

84. The applicant’s daughter describes a positive relationship with her father, stating that she has no hesitation in allowing him to spend time with and babysit her own daughters.

85. In a statement provided for these proceedings, the applicant’s wife stated that:

…during all the years that [DVM] has taught, I did not hear of, or observe, any inappropriateness with children…During his years at [the school], our children also attended, due to this being such a small community with only one school, our children’s friends were also those that [DVM] taught – they spent many afternoons, weekends, sleepovers, birthday parties, trips to sport and other activities etc. with our family – this was over many years. So [DVM] had a big overlap of personal and professional life during this time. Never did I observe inappropriateness or hear of it.

86. We accept the oral evidence provided by the applicant that he has always taken his responsibilities as a teacher seriously. We further accept his evidence, as confirmed by Dr Nielssen and Dr Keller, that there was never a sexual intent behind any physical contact he had with his students or with any other children.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl)

87. No further information has been provided.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

88. The Children’s Guardian neither supports nor opposes DVM’s application for a working with children check clearance.

Conclusion on section 30(1) matters

89. The question for the Tribunal is this - in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.

89. For the reasons set out above, we accept that there was no sexual intent behind the applicant’s physical contact with his students. We accept the applicant’s evidence that he would touch students on the shoulder and the arm and the back, including the lower back. We accept his evidence that if, at times, he had touched students’ bottoms, this had been accidental rather than intentional. We accept that he would, on occasion, lift students by the waist to wipe down the whiteboard.

90. We accept that the applicant is now aware that some of his physical contact with the students had the potential to make them uncomfortable and intrude on their personal space. With the assistance of intensive and ongoing psychological therapy, we are satisfied that the applicant has gained insight into those behaviours that risked making students uncomfortable and understands the need to minimise physical contact with students. The applicant is a teacher of many years’ standing and we accept the opinion of Dr Nielssen that the applicant would act appropriately should any children in his care find themselves in a dangerous or emergency situation requiring the applicant’s intervention.

91. It is not in dispute that the applicant has Autism Spectrum Disorder - Level 1, which was previously known as Asperger’s Syndrome. While we understand that this can manifest itself in rigid thinking by the applicant, his is a mild form of the disorder and we accept the medical evidence before us that he has insight into his behaviour. While we can understand that he will be hesitant to have future physical contact with children and that this causes him some anxiety, we are satisfied that he will interact with children – including having physical contact with them - to the extent required to care for them appropriately and keep them safe.

92. On the basis of the evidence before us and for the reasons set out in this decision, we find that the applicant does not pose a real and appreciable risk to the safety of children.

Section 30(1A) considerations

94. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 prohibits the Tribunal from making an order allowing a person to work with children unless satisfied that:

1. 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 child-related work, and

2. it is in the public interest to make such an order.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work?

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

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

96. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know that:

1. the applicant has been a teacher for over 30 years;

2. prior to the allegations that led to his criminal prosecution, there is no evidence of any complaints made against the applicant;

3. the applicant was acquitted of all criminal charges;

4. he had no criminal record before or after being charged with the offences for which he was acquitted;

5. a costs order was made by the trial judge in the applicant’s favour on the basis that if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings;

6. in finding the applicant not guilty of all charges, the trial judge was not satisfied that the applicant had a sexual intent in touching the complainants;

7. the applicant has always denied touching the complaints with any sexual intent;

8. the applicant’s civil claim for false imprisonment, wrongful arrest and malicious prosecution was recently settled in his favour;

9. having heard all the evidence in relation to the applicant’s request for a working with children check clearance, the Children’s Guardian adopted a neutral position in this case, namely that it neither supported nor opposed the application;

10. the applicant has been married for over 30 years and retains the support of his wife and children who trust him around children;

11. while the applicant has mild Autism Spectrum Disorder which causes some rigidity of thinking, it is the view of the psychiatrist, Dr Olav Nielssen, that this would not prevent him from providing appropriate care to keep children under his supervision safe; and

12. colleagues, relatives, friends and associates of the applicant, including former students and parents of children the applicant had taught, have provided reference in support of the applicant, attesting to their trust in the applicant and stating their belief that the applicant is not a risk to children.

97. Having regard to the material before us, and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant while he is engaged in child-related work.

Is it in the public interest to make the orders sought by the applicant?

98. Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. CHB v Children’s Guardian [2016] NSWCATAD 214

99. The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration.

100. The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant. Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

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

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

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

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

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

   102. For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant. Specifically, we are satisfied that the applicant has skills and experience in the care and management of children, including children with a disability, and that he has a particular expertise in drama and the creative arts, and that these are important skills for the education and development of children. We are also satisfied that, in the absence of the relevant risk to children, it is in the public interest that he be allowed to exercise his right to pursue employment. Accordingly, we find that it would be in the public interest to make the orders sought by the applicant.

Decision

103. For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Orders

1. The decision of the respondent dated 3 April 2019 to refuse the applicant’s working with children check clearance is set aside.

2. In substitution for this decision, the following decision is made: the applicant is to be granted a working with children check clearance.

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

Registrar

Amendments

11 January 2021 - Orders in body of decision amended to reflect those in the Coversheet.

05 February 2021 - Orders in Coversheet amended to reflect those in body of decision.

Decision last updated: 05 February 2021