DXC v Children's Guardian

[2020] NSWCATAD 136

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DXC v Children’s Guardian [2020] NSWCATAD 136
Hearing dates:	10 December 2019 and 5 March 2020
Date of orders:	20 May 2020
Decision date:	20 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant Senior Member L Houlahan Senior Member
Decision:	(1)   The decision of the Children’s Guardian dated 23 May 2019 to refuse to grant the applicant a working with children check clearance is set aside. (2)   In substitution for that decision, the following decision is made; the applicant is granted a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant is a high school teacher and had been previously terminated from his employment due to findings against him relating to failure to follow directions and professional misconduct involving a student – assessments by forensic psychologist – credibility of applicant - whether applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibitive Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children’s Guardian [2014] NWCATAD 161 BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWlRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88 Smith v Commissioner Police 2014 NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267.
Category:	Principal judgment
Parties:	DXC (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: New Law Solicitors, (Applicant) Crown Solicitors (Respondent)
File Number(s):	2019/00188784
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 including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. The applicant is a 46 year old man who seeks a Working with Children Check clearance (“clearance”) to enable him to continue his career as a High School teacher.

2. On 23 May 2019, the Children’s Guardian, decided to refuse him a clearance. Their decision was based on the allegations that the applicant, while a High School teacher did between 2011 to 2014 commit acts of professional and sexual misconduct, namely crossing professional boundaries and professional misconduct. The allegations involved a 15 year old student and were investigated by the school’s representative body and sustained. The matter was later referred to the police who did not pursue any charges.

3. The applicant seeks an administrative review of a decision of the respondent, the Children’s Guardian, to refuse him a clearance. The applicant accepts the allegations that he crossed professional boundaries and regrets his conduct. However, he denies the misconduct was sexual. He also asserts that the misconduct occurred at a time when he was vulnerable and was situational. He has no criminal history and no adverse reports or complaints against him. He also provided two expert opinions from psychologists stating he is not a risk to the safety of children and several written personal references in support of his application.

4. The issue for us to determine is whether, as at the date of hearing, we can be satisfied the applicant poses a real and appreciable risk to the safety of children if he were granted a clearance to work in child related-work.

5. After consideration of all the evidence, we decided to set aside the decision of the Children’s Guardian and grant the applicant a clearance. The reasons are set out below.

6. Due to the sensitive nature of these proceedings we have made the order under s 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the victim involved in the 2011 to 2014 allegations are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym ‘DXC’ has been used in these reasons for the applicant’s name and the pseudonym ‘YP’ for the victim.

Jurisdiction and role of Tribunal

7. There is no dispute that we have jurisdiction to review the decision of the Children’s Guardian that is the subject of this application. Our role in reviewing that decision is to determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon an application for review we may make orders that include an order to affirm the decision of the Children’s Guardian, or an order to set aside the decision of the Children’s Guardian and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3).

Applicable Law and Legal Principles

8. The object of the Act is to protect children by not permitting certain persons 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 Child Protection (Working with Children) Act 2012 (“the Act”).

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

10. The Children’s Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act.

11. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.

12. In this administrative review, neither party bears the onus of proof. There is no presumption that DXC poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR):

There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.

13. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove”.

14. An application under s.27 of the Act is a merits review and not a review in which DXC must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.

15. Our jurisdiction under s 27 of the Act is protective of children and not punitive of DXC: 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; R v Commission for Children and Young People [2002] NSWlRComm 101.

16. The issue for us as required by s 18(2) of the Act is whether DXC, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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”.

17. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

18. In determining this application, we must first have regard to the factors set out in s 30(1) of the Act. If we are considering making an order to grant DXC a clearance to work with children, we must then consider the two-part test set out in s 30(1A) of the Act.

Evidence

Documents

19. The applicant, DXC filed the following written material:

1. Applicant’s Statutory Declarations of 16 October 2018 and 30 April 2019 and letter to Children’s Guardian dated 6 May 2019,

2. Report of Forensic Psychologist, Ms Hare dated 15 August 2016 and emails to Children’s Guardian of April 2019,

3. Report of Clinical and Forensic Psychologist, Dr Seidler dated 5 November 2019,

4. Report of Psychologist, Ms Kerry Hynes dated 19 May 2015,

5. Report of Oncologist, Dr Yip dated 27 October 2014,

6. Documentation from the High School regarding the employment of DXC including performance reports, and

7. Curriculum vitae of DXC and several professional and personal references regarding DXC

20. The Children’s Guardian filed a s.58 bundle of documents including the file of the Children’s Guardian regarding DXC’s application and decision, report from the Department of Family and Community Services, correspondence from the Ombudsman NSW regarding a reportable conduct investigation, correspondence from the Independent Education Union seeking a review of the decision, bundle of documentation from the High School where the allegations arose including DXC’s personnel file, investigation report regarding allegations against DXC, the High School Policies on Child Protection procedures 2012 and the human resources file from a recent employer of DXC.

21. The applicant was represented by a solicitor and the respondent was represented by Counsel. The parties submitted a summary of legal argument and written submissions.

22. During the hearing, DXC gave oral evidence and was cross-examined by the respondent’s Counsel. Dr Katie Seidler gave oral evidence and was cross-examined by the respondent’s Counsel. No other witnesses were called by either party and final submissions were made by both parties.

Details of the allegations and investigation by the School’s representative body that led to Children’s Guardian refusing DXC a clearance

23. On 22 November 2017, DXC applied for a clearance. The Children’s Guardian then conducted a risk assessment under section 15 of the Act (Clause 2A of Schedule 1). The risk assessment was triggered by a report of an investigation and sustained allegations against DXC regarding sexual misconduct (crossing professional boundaries) and professional misconduct. The allegations concerned DXC’s conduct as an employed teacher between 2011 and 2014. The victim was one of DXC’s students and was 15 when the conduct giving rise to the allegations commenced. The report and investigation was completed by the High School where DXC had been teaching for 8 years and the School’s representative body. Due to his conduct, the School terminated DXC’s employment in June 2014.

24. The background to the conduct of DXC was that he was diagnosed in 2009 with testicular cancer and entered remission in 2011. The victim, we will refer to as ‘YP’ was herself diagnosed with lymphoma, a blood cancer in 2011. DXC wanted to offer support to YP outside his normal duties as a teacher having had a similar medical condition. With the permission of the School and YP’s parents, he started to send her letters. His support then became more personal and frequent leading to the allegations of misconduct. The allegations arose from conduct that occurred over a period and are detailed in a comprehensive investigation report. They include the following matters:

1. Without obtaining further permission from YP’s parents or the school, DXC continued to send letters, cards and emails to YP, saying things such as, “I am missing you greatly” and “it will be a very intense moment when we are again able to explore places together” and “I can’t wait to see you again to share what I have seen here”. It was alleged that DXC sent at least 50 overly personal and intimate emails, including asking YP if she was sure nobody else was reading her emails, telling her that he felt the same way as her, which was that she loved him and wanted to be with him, that other people did not understand them and that he had found his other half in YP.

2. On numerous occasions DXC invited YP to his home and she had dinner with himself and his wife, DXC took her on regular weekly walks on his own and during these walks had unnecessary physical contact with YP by holding her hand, that on one occasion before March 2012, DXC sat with YP in his car parked approximately 500 metres from YP’s home for at least an hour. He gave YP gifts of a book of poetry written by himself and other books.

3. After YP had turned 18 but was still a student at the school, DXC told her that he loved her, he wanted to have children with her and his marriage was over.

4. In March 2012, extensive email correspondence between DXC and YP was discovered by her family and her parents requested DXC stop seeing their daughter outside of school. In May 2012, the matter was raised with the school and DXC agreed the ‘relationship’ would stop. He was also given a direction by the School not to make any contact with YP outside School.

5. In May 2014, YP’s parents complained to the School that DXC had an inappropriate relationship with YP and in June 2014, the School’s management terminated DXC’s employment immediately based on a ‘repeated failure’ to adhere to their directive not to contact the student and this had caused an irretrievable breakdown in trust and confidence with the School.

6. An investigation was held into DXC’s conduct by the School’s representative body. The allegation that DXC engaged in behaviour that constitutes sexual misconduct (crossing professional boundaries) was sustained. His behaviour, when viewed in its entirety, could be reasonably construed as a pattern of behaviour that was inappropriate and overly personal and intimate towards YP. Further, DXC knew or ought to have known his behaviour was unacceptable and outside of the expectations of a teacher.

7. The investigation found that an inference could be drawn that there was an inappropriate and overly personal relationship in existence between YP and DXC during 2012 and 2014 because on YP turning 18, while still a student, DXC told her parents that he loved her. This suggests the relationship had already commenced to become inappropriate as “they (relationships) do not form in a vacuum”.

8. The investigation found DXC’s conduct to be a gross breach of his duty to YP given the unequal distribution of power within the teacher student relationship and YP’s vulnerability being in remission with cancer.

The evidence of DXC

25. DXC adopted his Statutory Declaration of 16 October 2018 and his second Statutory Declaration of 30 April 2019. In summary, he made the following points:

1. He has been teaching for over 20 years and has never had any adverse reports or complaints against him.

2. He unreservedly accepts the findings of professional misconduct in that he crossed professional boundaries. However, he disagrees there was any sexual misconduct. There was no sexual acts, indecency or grooming. There was also no sexual intimacy or inappropriate physical contact between himself and DXC. He also maintains that following the direction from the school, he stopped any contact or communication with YP from May 2012 and only resumed communication with YP in late March 2014, after YP approached him at an event to publicise his book and she was 18 at that time.

3. His conduct was in the context of exceptional circumstances in that he had been diagnosed with cancer, had received 3 rounds of chemotherapy and returned to school teaching without a proper break. He believes his judgement was impaired and viewed things in terms of life or death and that led him to overstep the mark with his student. He stated, “I ceased to act as a teacher. I became a mentor for [YP], a friend, a doctor, a psychologist, a cancer and life coach”.

4. Through seeking professional help, he believed he had taken all measures to ensure that there is no risk that his behaviour may reoccur. His work has included “a close examination of personal boundaries, interpersonal as well as intrapersonal”.

5. DXC entered an intimate relationship with YP after YP turned 18 and that relationship is continuing 5 and a half years later.

26. DXC was cross examined by Counsel for the respondent and agreed that as an experienced teacher he had completed all the mandatory training on child protection standards and rules of conduct.

27. DXC agreed with Counsel that when he first made contact with YP, he was not aware of or did not think about how vulnerable YP was, but in hindsight, he does now. He agreed that he should never had contacted YP and her family. He agreed that he took YP on walks sometimes three times per week but now realises this was inappropriate. He agreed that he should not have spent any time with YP alone.

28. It was put to DXC that he requested YP to replace her email address as he wanted to keep her correspondence with him as secret. DXC disagreed and insisted that the purpose of his request related to YP disclosing in the emails that she had negative thoughts about the cancer returning and he wanted to protect her from her family and friends knowing about these fears. However, he also agreed that he should have notified the school or the school counsellor about these emails and it was not appropriate for him to deal with the matter himself.

29. DXC stated that he did have intense discussions with YP about art and philosophy but they were topics of shared interests. Under cross-examination, some of his personal messages and words to YP in the emails and cards were read out to DXC and DXC agreed that he should never have sent the cards and emails and written the personal words. He agreed he has breached professional boundaries. He also believes he had become emotional but was not aware of these feeling at the time.

30. DXC agreed that he did hold hands with YP once or twice on a bushwalk but only because YP was unsteady on her feet and he was supporting her. He stated, “It was not like a couple holds hands”. He disagreed that any of his behaviour was sexual or that he had any sexual intentions. However, he also stated words to the effect that he was naïve not to foresee the possibility that YP may have been developing feelings for him and this may include falling in love with him. He stated that he did not discuss feelings with YP until after she turned 18.

26. We asked DXC about what he had learnt from his experience of having sustained allegations against him and the process of applying for a clearance and the student teacher relationship. He spoke at length and told us several things including the following as referred to in the transcript:

I would now never dream of interfering into their personal lives.

Looking back, I should never have contacted the family, let alone the student. I should have sought guidance from the school at all stages.

You should never spend time alone with a student.

Don’t interfere with their lives. I mean I’m a teacher, I’m no doctor

And transparency if you think you are going to do something out of the ordinary like taking a student back home for a reason. I mean it can happen on some excursions, I guess over the course of a career that some students are stuck or whatever. Well then, phone the school, send a taxi, contact the family; but in doubt, seek guidance.

Always be anticipating what the students would feel. What could be there perception of your actions because I lost sight of that with [YP]. I did not think then of her perception of the words. I thought I was being enthusiastic and nurturing a passion or whatever and not think that she could take it as, “he’s especially interested in me”. That picture was not in my head but now it is and you’ve got to be very very careful about how your actions, your words, your demeanour are interpreted. Never spend time alone with a student and any one on one time do it in a public place.

32. We asked DXC what would he do as a member of a teaching staff if he observed another colleague engaged in similar conduct to his own. DXC told us, that as a mandatory reporter, he would report the teacher. He also referred to his obligation to protect children.

Our findings regarding the evidence of DXC

33. During final submissions, Counsel for the respondent made the argument that the Tribunal should not accept the evidence of DXC. Counsel submitted that during his evidence, DXC was often evasive and did not respond directly to questions. He was disingenuous in many of his responses and Counsel gave the example of how DXC insisted he had no contact with the victim from May 2012 to March 2014 yet failed to acknowledge, unless it was pointed out to him, that he continued to see her regularly in class as her English teacher. Counsel also submitted we should have doubts regarding the authenticity of DXC’s new insights and perceptions, that he spoke about in hindsight regarding his failings and noted that they were contrary to his initial statements made after the allegations were raised. These submissions were strongly opposed by the solicitor for DXC, who stated there was no evidence to support them.

34. We carefully considered DXC’s evidence. DXC was at times verbose and lengthy in his responses. This could be interpreted, at times, that DXC was not directly responding to the questions asked of him. His solicitor agreed that DXC’s answers were long but submitted to the us that DXC is an academic and English is his second language and we accepted this reasoning and his likely propensity for words and explanation. We also agree that at times DXC was defensive and cautious in his responses but we find this was more probably explained by the gravity of his situation being placed before the Tribunal. Overall, it was not our impression during his evidence, that DXC had attempted to evade, obfuscate or mislead. There was also no evidence to support this finding and it would be contrary to the assessments of both expert forensic psychologists, Ms Hare and Dr Seidler. We found DXC to be a truthful and credible witness. We found him to be genuine in accepting responsibility for the seriousness of his violations and misconduct that caused the adverse risk assessment. We also found him to be genuine in his evidence that he has, over time, developed greater insight, knowledge and understanding of child protection matters and the risks to children when professional boundaries and codes of practice are not followed. We accepted the view of Dr Seidler that he appeared to be “hyper alert” to these issues.

Consideration of s.30(1) factors and findings

a) Seriousness of any matters that caused the assessment in relation to the person

35. We regard the matters against DXC as very serious. While there was no evidence of any overt sexual conduct by DXC, the communication and engagement from DC with YP was at times, highly personal and therefore, improper, inappropriate and a violation of his professional responsibilities and expectations as a teacher. He was also in a position of power and trust over YP as her teacher. His conduct was also made worse by YP being seriously ill with a diagnosis of cancer and therefore, she was very vulnerable.

36. DXC’s solicitor made the submission that no harm was caused to YP as they are now in a permanent and caring adult relationship. He referred to a statement provided by YP for these proceedings who denied she had been harmed and viewed [DXC] as having “a motivating and positive academic and personal influence throughout the later years of my high school”. In our view, this evidence does not lessen DXC’s responsibility and culpability in the matter.

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

37. The conduct occurred from about June 2011 to June 2014. Since this time, DXC has continued to work as a teacher but in the tertiary sector. There have been no other complaints or adverse reports concerning DXC.

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

38. DXC was born on 31 August 1973 and turned 38 in 2011.

d) The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

39. The victim was born on 14 March 1996 and turned 15 in March 2011. She was a Year 10 student and vulnerable in the sense of being subject to the usual power inequities of a student teacher relationship. She had also been diagnosed with lymphoma, a form of blood cancer and receiving treatment.

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

40. The difference in age between the victim and DXC was about 23 years.

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

41. DXC knew the victim was a child.

g) The person’s present age

42. The present age of DXC is currently 46 years of age.

h) The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.

43. DXC has no criminal history. There have been no complaints or adverse reports since the matters occurred.

i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

44. Following termination of his employment, DXC received 10 sessions of counselling from Psychologist, Ms Kerry Hynes under a Mental Health Care plan from 30 October 2014 to 19 May 2015. She prepared a report dated 19 May 2015. She did not carry out a risk assessment but in her report stated, “[DXC] has evidenced good moral integrity via his narrative. He has invested much energy toward making intelligent choices in his future. He has also exhibited improved levels of emotional intelligence. These factors are positive in the consideration of objectivity in his professional future and strict and strong boundary maintenance”.

45. Forensic Psychologist, Ms Caroline Hare was engaged by DXC to provide a risk assessment to the Children’s Guardian in their determination of whether DXC should be granted a clearance. She interviewed DXC on the 4 August 2016 and prepared a report dated 15 August 2016. She characterised his conduct as “highly situational”. While she agreed that DXC had committed serious boundary violations, in her view, he was not overtly motivated (at least initially) for personal gain but by a desire to help YP. In her report, she expressed the following opinion:

Based upon my analysis of [DXC]’s risk and protective factors, I assess his future likelihood of engaging in sexual misconduct towards children as minimal, and I am not of the opinion that he requires any specific action or intervention to mitigate the risk…

When questioned about his learning experience, [DXC] was able to identify ‘warning signs’ for future violations, including a student seeking to confide in him or being exposed to a student impacted by cancer…Based on his responses, [DXC] presented as having considered future scenarios and developed appropriate responses…He was able to consider appropriate responses to cope with these scenarios, including taking time off work to “process and digest” his situation (this was notable, as it was not something he did previously), and seek help from a psychologist (he advised that he had benefitted from the intervention he undertook and reflected that he wished he done this sooner…Overall, I assessed his insight and coping strategies as robust, and I am confident that he would act upon indicators of emotional decline and/ or increased vulnerability to avoid future boundary transgressions.

46. Clinical and Forensic Psychologist, Dr Katie Seidler provided a supplementary report dated 5 November 2019 to update the Tribunal on DXC. She agreed with Ms Hare’s opinion about DXC’s behaviour being “situational”. She stated, “the serious professional boundary violations that [DXC] engaged in were context and situation specific and a function of a very unique set of circumstances, in addition to [DXC]’s lack of insight into his mental health. These risk factors have not continued and are unlikely to be present in the future. To this end, [DXC]’s behaviour is not conceptualised as a function of sexual deviancy or an enduring pattern of boundary violations or identification with children and young people”.

47. Dr Seidler agreed with the assessment of Ms Hare, that [DXC] did not pose a generalised risk to children and young people in relation to sexual abuse and that his risk is no greater than for any member of the community. She then referred to the risk assessment undertaken by Ms Hare with complete agreement.

48. Dr Seidler gave evidence and adopted her report. She was cross-examined by the respondent’s Counsel and agreed a repetition of the conduct from DXC would require “the occurrence of a perfect storm of events” and while possible, was not probable. In questions about some inconsistencies in his evidence, Dr Seidler stated that she found DXC to be believable in his interview with her. In re-examination, Seidler stated again that DXC appeared to have learnt from his experience and “now seems hyper alert about these issues”.

49. Based on all the information before us, including the two expert reports of Dr Seidler and Ms Hare and our findings regarding DXC’s evidence and his insights and sound understanding about child protection matters, we are satisfied that the likelihood of DXC repeating his conduct that gave rise to the adverse risk assessment is low.

50. The repetition of the type of conduct and behaviour exhibited by DXC in his role as a teacher could cause serious psychological and emotional harm on a child. This underlies the importance of compliance by teachers with their professional codes of conduct and duty of care towards students.

j) Any information given by the Applicant in, or in relation to, the application

51. DXC provided nine personal and professional references. Eight were provided by former teaching colleagues. They all referred to DXC as a highly talented and committed teacher. They were all aware of the fact that the Children’s Guardian had refused DXC a clearance and the allegations, with some referring specifically to allegations and expressing their views on how it may have occurred. All referees gave their support for DXC returning to teaching and some indicated that they would be happy for their children to be taught and supervised by DXC in the future.

j1) Any relevant information in relation to the person that was obtained under section 36A

52. This is not applicable.

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

53. The respondent’s Counsel submitted that DXC was not genuine in his insights and new understandings of appropriate student teacher relationships and therefore, was a risk to the safety of children. However, we have made a finding about the evidence of DXC detailed above and reject this submission.

Conclusion as to whether DXC poses a risk to the safety of children

54. We carefully considered all the evidence. On the one hand, we took account of the seriousness of DXC’s conduct being an ongoing and serious breach of professional boundaries that occurred over a long period and involving a 15 year old student who was extremely vulnerable due her diagnosis of a life threatening medical condition. DXC was an experienced teacher and as a teacher had completed mandatory training on the importance of compliance with child protection standards and rules. His conduct represented a clear breach of his duty of care to his students to protect them.

55. On the other hand, we considered the view of forensic psychologist, Ms Hare who found DXC’s conduct was highly situational and based on her assessment of DXC and all the material available to her, she did not believe DXC presented a physical, sexual or emotional/ psychological risk to children. We considered the view of clinical forensic psychologist, Dr Seidler who agreed with the risk assessment of Ms Hare and that DXC did not pose a generalised risk to children and young people in relation to sexual abuse and that his risk was no greater than for any member of the community. We considered the fact that DXC has been a teacher for over 20 years and has had no previous convictions, charges, complaints or adverse reports. We also considered the evidence of DXC who accepted responsibility for his misconduct and demonstrated in his evidence a good understanding of child protection matters. From the work with his treating psychologist, he also gave insights as to how his misconduct occurred and what protective strategies he could utilise in the future to avoid a repeat of his conduct. We found DXC to be a credible and truthful witness.

56. Based on all the evidence, and on balance, we find that DXC does not pose a real and appreciable risk to the safety of children.

Application of s.30(1A) of the Act

57. We must now consider the tests outlined in s.30(1A) of the Act. The first test we must determine is whether a reasonable person would allow his or her child to have direct contact with DXC in circumstances where he would not be directly supervised by another person while engaging in child related work.

58. 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. In this case, the relevant facts would include the findings of the investigation by the school representative body that details the misconduct and the investigation, the written reasons for the decision of the Children’s guardian to refuse DXC a clearance, the report of forensic psychologist, Ms Hare dated 15 August 2016 and her emails to the Children’s Guardian in April 2019, the report of clinical and forensic psychologist, Dr Seidler dated 5 November 2019, the report of treating psychologist, Ms Kerry Hynes dated 19 May 2015, the fact that DXC has no record of any charges, complaints or allegations regarding criminal or child related matters, the several references from former teaching colleagues attesting to DXC’s good character, and some of those referees stating explicitly they would be happy to allow their children to be taught and supervised by DXC. Finally, a transcript of the hearing which would include the evidence of DXC should also be available. Based on the relevant facts, we are satisfied that a reasonable person would allow their child to have direct contact with DXC in circumstances where he would not be directly supervised by another person, while engaged in child related work.

59. The second part of the test of s.30(1A) is the public interest test. We 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 consideration.

60. 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.

61. DXC has been a teacher for over 20 years and apart from the current matter, he has a clear record of no complaints and no adverse reports. He is seeking a clearance with a view to returning to classroom teaching in the future. He has provided several references from other teachers who have attested to him being a highly talented and committed teacher. Due to these current proceedings, he is now well versed in child protection matters and in the opinion of Dr Seidler, he is now “hyper alert” about these matters. Based on all the evidence, we are satisfied that it is in the public interest to grant DXC a working with children check clearance. It therefore follows that the correct and preferable decision is for us to make the following order.

Orders

62. The orders are as follows:

1. The decision of the Children’s Guardian dated 23 May 2019 to refuse to grant the applicant a working with children check clearance is set aside.

2. In substitution for that decision, the following decision is made; the applicant is granted a working with children check clearance.

**********

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

Registrar

Decision last updated: 20 May 2020