DZF v Children's Guardian - [2020] NSWCATAD 41

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZF v Children's Guardian [2020] NSWCATAD 41
Hearing dates: 20 January 2020
Date of orders: 07 February 2020
Decision date: 07 February 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Blake AM SC, Senior Member
R Royer, General Member
Decision:
(1) Decision of the respondent made on 10 July 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant.
(2) An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.

Catchwords: ADMINISTRATIVE LAW — Working with children — Application for a working with children check clearance - Whether applicant poses a risk to the safety of children
Legislation Cited: Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Education Act 1990 (NSW)
Ombudsman Act 1974 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKV v Children's Guardian [2015] NSWCATAD 65
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Children's Guardian v CKF [2017] NSWSC 893
Children's Guardian v CVE [2017] NSWSC 1342
Children’s Guardian v CXZ [2019] NSWSC 1083
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476
CSW v Children's Guardian [2017] NSWCATAD 326
CTM v Children’s Guardian [2016] NSWCATAD 280
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAR v Children's Guardian [2018] NSWSC 942
DJS v Children's Guardian [2018] NSWCATAD 71
GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348
M v M (1988) 166 CLR 69
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1
Office of the Children's Guardian v CFW [2016] NSWSC 1406
Secretary, Department of Justice v LMB [2012] VSCA 143
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: DZF (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
S Swami (Applicant)
M Giacomo (Respondent)
Solicitors:
EXM Law Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2019/00244945
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

Summary

The applicant, who is referred to as DZF, applied for an administrative review pursuant to s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) of a decision of the respondent, the Children’s Guardian, made on 10 July 2019 refusing his application for a working with children check clearance (WWCC clearance) (the Decision).
We have determined that the correct and preferable decision having regard to the material before us is grant a WWCC clearance to the applicant pursuant to s 18(2) when read with s 5B of the WWC Act, and accordingly have decided to set aside the Decision and in substitution to grant a WWCC clearance to the applicant.

Non-publication of names

Pursuant to s 64(1)(a) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal, if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, may make an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), provided that such an order is not inconsistent with s 65.
Pursuant to s 65(1)(b) and (2) of the CAT Act, there is a prohibition against publishing the names of certain persons, if the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (CSCRM Act). Those persons are identified as a witness in proceedings, a person to whom any proceedings in the Tribunal relate, or a person who is mentioned or otherwise involved in the proceedings.
The term “community welfare legislation” includes the WWC Act: CSCRM Act, s 4(1). These proceedings are for a decision for the purposes of the WWC Act.
We are satisfied that it is desirable to make an order pursuant to s 64(1)(a) of the NCAT Act prohibiting, 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. We have avoided referring by name to the applicant, and witnesses for the applicant other than expert witnesses, and instead referred to them by reference to their relationships to each other, so as to preserve their anonymity.

Background

On 9 July 1991, the applicant was born.
The applicant completed a Bachelor of Design and Technology degree and a Bachelor of Teaching degree between 2010 and 2012, and between 2013 and June 2014 respectively at different universities in NSW.
On 24 January 2014, the applicant was granted a WWCC clearance.
From April 2014 to July 2015, September to December 2015, and January to March 2016, the applicant was employed as a casual teacher at five different independent schools including an independent co-educational day school catering for students from years 7 to 12 (the School).
From 20 July 2015 to 18 September 2015 and 1 April 2016 to 26 August 2016, the applicant was employed as a teacher at the School on a temporary basis.
Commencing on 29 August 2016, the applicant was employed as a teacher at the School on a permanent basis.
In mid-September 2016 in term 3, the applicant was appointed as the special mentor of a female student in year 11 who was entering year 12 in term 4 (the student).
On 20 October 2016, the applicant was removed as the special mentor of the student.
On 4 November 2016, the School gave the applicant a formal warning regarding his professional conduct in his interactions with the student.
On 17 May 2017, the School advised the applicant that his conduct towards students would be reported to the NSW Ombudsman and investigated by the School through an external independent investigator, and that he was suspended with immediate effect until further notice.
On 23 May 2017, the School engaged the Association of Independent Schools NSW (AISNSW) to conduct a reportable conduct investigation in relation to the applicant’s conduct towards the student and two other female students.
On 25 May 2017, the School reported to the NSW Ombudsman in relation to the conduct of the applicant towards the student and two other female students under s 25C(1)(a) of the Ombudsman Act 1974 (NSW) (Ombudsman Act).
On 7 June 2017, NSW Family and Community Services provided the School with a clearance to proceed with the reportable conduct investigation in relation to the applicant’s conduct towards the student.
On 7 July 2017, the School advised the applicant of its intention to terminate his employment as a result of his failure to comply with the Staff Code of Conduct.
On 7 July 2017, the applicant advised the School of his resignation as a teacher.
On 18 July 2018, the AISNSW completed its report which set out the results of its investigation (the AISNSW Investigation), and in which it found that 16 of 18 allegations against the applicant falling into the reportable conduct category of “sexual misconduct – crossing professional boundaries” (the reportable conduct) were sustained (the AISNSW Report).
On 7 August 2018, the School advised the applicant that it had made final finding in terms of the 16 sustained findings in the AISNSW Report.
On or shortly before 16 August 2018, the School provided the AISNSW Report to the NSW Ombudsman.
On 20 August 2018, the School made a workplace misconduct notification to the respondent in respect of the applicant.
On 27 August 2018, the respondent sent the School a request for the AISNSW Report under cl 24(2) of the Child Protection (Working with Children) Regulation 2013 (NSW) (WWC Regulation).
On 17 October 2018, following a risk assessment, the applicant determined that the applicant was subject to an interim bar.
In November 2018, the applicant's accreditation as a teacher in NSW was suspended.
On 4 February 2019, the applicant’s WWCC clearance expired.
On 11 February 2019, the applicant applied for a WWCC clearance.
On 10 April 2019, the NSW Ombudsman advised the School that, having reviewed the formation provided by the School including the AISNSW Report, the finding of sexual misconduct against the applicant was open to the School on the evidence available. The School’s finding of sexual misconduct was consistent with the definition of sexual misconduct as detailed in the NSW Ombudsman Child Protection Fact Sheet 11 2017 “Child Protection Notifying and Identifying Reportable Conduct” dated January 2017 (the NSW Ombudsman guidance). The NSW Ombudsman provided the feedback that the applicant appeared to have received little guidance in relation to his role as special mentor.
On 24 May 2019, the respondent notified the applicant that she proposed to refuse his application for a WWCC clearance, attached reasons for the proposed refusal and advised the applicant he could make a submission.

The AISNSW Report

In the AISNSW Report:

the following definition of “sexual misconduct – crossing professional boundaries” found in section 2.2 of the the NSW Ombudsman guidance was applied:

There are various types of sexual misconduct including (but not limited to)
•   Crossing professional boundaries
…
Sexual misconduct includes behaviour that can be reasonably be construed as involving an inappropriate and overly personal or intimate:
•   Relationship with;
•   Conduct towards; or
•   Focus on;
a young person, or group of children or young persons.
In the area of 'crossing professional boundaries', particular care should be exercised before making a finding of sexual misconduct For example, an employee who, on an isolated occasion, 'crosses professional boundaries' in a manner that involves little more than poor judgement could not be said to have engaged in sexual misconduct Also in cases where an employee 'crossed boundaries' in terms of their relationship with the involved child, if there is evidence which clearly shows that the employee did not seek to establish an improper relationship with the involved child, then this does not constitute sexual misconduct
However, persistent less serious breaches of professional conduct in this area, or a single serious 'crossing of the boundaries' by an employee may constitute sexual misconduct, particularly if the employee knew, or ought to have known, that their behaviour was unacceptable.

states that the following findings were made in relation to 18 allegations which were put to the applicant:

It is alleged that you engaged in behaviour that can be reasonably construed as involving an inappropriate and overly personal or intimate relationship with, conduct towards and/or focus on [the student] (DOB [date omitted]) while she was a student at [the School] when you:
1.   Sent [the student] emails which were personal in nature and were not school-related, using your school email account, following the year 10 snow camp in 2015 when she was in year 10 and then aged 15 years
On the balance of probabilities the allegation is NOT SUSTAINED - INSUFFICIENT EVIDENCE.
2.   Sent [the student] not less than 106 emails to her personal email account, which were personal in nature and were not school-related, using your school email account, between 2 April 2016 and 18 October 2016, when she was aged 16 and 17 years.
a.   The emails referred to in allegation 2 were sent to [the student] before school hours, during school hours, after school hours, on weekends, and during school holidays.

…
On the balance of probabilities the allegation is SUSTAINED.
3.   Between April 2016 and October 2016 you had frequent and ongoing 1:1 conversations with [the student] of a personal nature which were not school related, during school hours, in between classes and during recess and lunch breaks. …. During several of these conversations …, you were standing very close to [the student] in an overly familiar manner.
On the balance of probabilities, the allegation is SUSTAINED.
4.   Between April 2016 and November 2016 you had frequent and extended 1:1 conversations with [the student], of a personal nature which were not school related, on school grounds before school hours and after school hours. This included:
…
On the balance of probabilities, the allegation is SUSTAINED.
5.   On at least one occasion in 2016 you provided [the student] with a copy of your timetable, detailing your classes and duty roster.
On the balance of probabilities the allegation SUSTAINED.
6.   During term 4 of 2106 you frequented the Year 12 Common Room at times you were not rostered on duty to seek out [the student]. When you did locate [the student] in the common room, you would engage in conversations of a personal nature, which were not school-related These conversations most often occurred towards the end of the school day or after the school day had ended.
On the balance of probabilities the allegation is SUSTAINED.
7.   Between April 2016 and October 2016 you saved your personal mobile number into [the student’s] mobile phone under "ICOE' (In Case of Emergency)
On the balance of probabilities the allegation is SUSTAINED.
8.   Around the period from April 2016 and October 2016 during every school day that both [the student] and you were present at school, you had at least one face-to-face conversation
On the balance of probabilities the allegation is SUSTAINED.
9.   On 22 September 2016, while attending [name of event and its location omitted], you sat on a bench seat opposite [the student], who was also sitting on a bench seat and you had your feet up on the bench right next to her, touching her thigh area with your foot.
On the balance of probabilities the allegation is SUSTAINED.
10.   On 22 September 2016, while attending [name of event and its location omitted], you accessed [the student’s] mobile phone using your pre-authorised fingerprint.
On the balance of probabilities the allegation is SUSTAINED.
11   You encouraged [the student] to use the "notes' section in her mobile phone as a way of facilitating ongoing communication with her in relation to her personal thoughts and feelings, which led to further face-to-face discussions with you of a personal and intimate nature.
On the balance of probabilities the allegation is SUSTAINED.
12.   On several occasions you accessed [the student’s] mobile phone using your fingerprint, and checked the "notes" section of her phone where she would write her personal thoughts.
On the balance of probabilities the allegation is SUSTAINED.
13.   On at least one occasion you discussed personal information with [the student] on the subject of boyfriends.
On the balance of probabilities the allegation is SUSTAINED.
14.   On one occasion you told [the student] that your employment contract at [the School] was being renewed for the following year.
On the balance of probabilities the allegation is SUSTAINED.
15.   You "followed" [the student] on the app Strava viewing (or using the information in that app to ascertain) her regular bike riding routes.
On the balance of probabilities the allegation is SUSTAINED.
16.   You discussed [the student’s] bike training programs with her, in advance, gaming knowledge of where she would be training and what type of training she would be undertaking (such as interval training)
On the balance of probabilities the allegation is SUSTAINED.
17.   You created an opportunity during the September/October school holidays of 2016 (using your knowledge of her bike training regime and regular riding routes) to meet [the student] while she was bike riding up [name of location omitted], where, when you sighted her, you circled back to meet up with her, riding up the hill with her and continuing to ride with her until the teacher's carpark at [the School], when she turned off towards her home
On the balance of probabilities the allegation is SUSTAINED.
18.   On Tuesday 28 March 2017, you had an extended 1:1 conversation with [the student] which was personal in nature and not school related, after school in front of the library and remained talking with her until approximately 3 20pm.
On the balance of probabilities the allegation is NOT SUSTAINED - INSUFFICIENT EVIDENCE.

included the following evidence and findings regarding allegation 2:

Information relating to whether [the applicant’s] relationship with [the student] was attributable to his role as her Special Mentor and whether this role superseded the ordinary relationship boundaries expected of a teacher/student relationship
…
Information from [name omitted] - Director of Student Wellbeing Senior School, witness
…
4.189   [Name omitted] said she wrote the Special Mentor Guidelines regarding mentors' responsibilities. [Name omitted] said these guidelines provide specific boundaries including that staff are not to meet students outside school hours.
…
4.193   [Name omitted] confirmed that any communication beyond three or four face-to-face meetings during school hours and emails to arrange the same would be over and above the confines of a mentor relationship.
…
Information from [the applicant] - former teacher, …
…
4.226   [The applicant] said that the School provided him with very limited information about the Special Mentor program and was not provided with any training. …
…
Information from documents provided by [the School]
Proforma Letter addressed to "Dear Special Mentor"
4.242   This proforma letter relevantly states
".
A mentor is a guide, someone with wisdom and foresight who helps another find his or her path The Special Mentor program allows students to seek advice and support from teachers in a more informal context While the authenticity of a such a relationship should not be compromised by a prescriptive approach, the following guidelines aim to provide some clarity in terms of expectations:
Meetings
It is up to you and the students you are mentoring to decide when and how often you meet,
•   The Students have been instructed to initiate a time to meet with you should they require help
•   Some students require more regular meetings with their mentors than others
Support
•   Listening to students concerns and grievances is an important part of the mentoring role Often students will just want someone they can talk things through with. …
…
[the School’s] Staff Code of Conduct

4.246 [the School] Staff Code of Conduct states as follow
"1. What is expected of you as an employee?
As an employee you should be aware of the Schools policies and procedures, particularly those that apply to your v>/ork If you are uncertain about the scope or content of a policy with which you must comply, you should seek clarification from the Headmaster or your line manager
It is your responsibility to also be familiar with the legislation under which you are employed as this may specify requirements with which you need to comply."
…
Analysis of the Evidence - Allegation 2
…
Discussion of Issues
…

4.273   The issue remains as to whether there are implied limits to the boundaries between teachers and students under the Special Mentor Program.
4.274   At interview [the Director of Student Wellbeing Senior School] referred to guidelines for the Special Mentor program, so these were requested following her interview However, [the Director of Student Wellbeing Senior School] then advised that these guidelines were limited to the pro forma letter sent to appointed teacher mentors.
4 275   It is not clear whether [the applicant] received a copy of this letter.
4.276   It is clear from the Special Mentor pro forma letter that the Special Mentor program is intended to be student rather than teacher driven, such that students were instructed to reach out to teachers if they needed help and not vice versa However, mentor teachers are supposed to "check" during the year as to the mentee student's study, leadership position and social dynamics There are no limitations on how often mentors and mentees should meet and the guidelines contemplate that this will depend on the mentor and mentee.
4.277   Contrary to [the Director of Student Wellbeing Senior School’s] evidence at interview, there are also no guidelines on the location of suitable meeting places or timing of such meetings.
4.278   The Guidelines also contemplate the formation of a "relationship" between the mentor teacher and mentee student but does not provide any guidance on the nature of this relationship. …
4.279   The scope of the Special Mentor relationship is sufficiently broad that it is likely that mentee students could raise non-school related issues However, it can reasonably be inferred that there are limitations on the boundaries of this relationship, consistent with the teacher's obligations under the Staff Code of Conduct and Child Protection Policy …
4.280   It is reasonable to infer that the Special Mentor Program operated within the limitations of the School's Child Protection policy … So, whilst [the applicant] could reasonably develop a special relationship with [the student] as her Special Mentor, this role did not supersede the ordinary relationship boundaries expected of a teacher/student relationship.

included the following evidence received in interviews:

the student said that there was nothing the applicant did or said that made her feel uncomfortable. She said of the applicant:

He was a nice teacher who treated me with respect

the student's mother, who was a staff member at the School, said that she had read most of the emails her daughter and the applicant had exchanged and the content of the emails did not cause her concern. She thought the mentor relationship between a young male teacher and a female student was not wise but she never felt worried that her daughter was not safe;

a teacher at the School who observed some of the applicant's conduct towards the student said:

there was nothing ever in it, it was always out in public … they were never touching, it was never a comfort cuddle, it was never anything to do other than just standing and talking. It was just the frequency that put me a little bit at unease. …I would feel quite comfortable in saying that I thought there was nothing happening other than him showing a concern [the student]

another teacher at the School who observed some of the applicant's conduct towards the student said that her concerns were only about the frequency of the conduct, and she did not see any inappropriate physical contact;

the Director of Student Wellbeing Senior School said of the reportable conduct:

I think he had good intentions but there needs to be some firmer boundaries communicated to him about what's appropriate and what's not

the Head of the Senior School who had meetings with the applicant about his conduct:

about the first meeting said:

My feeling in the first stages of our meeting was that we had a young, inexperienced teacher, who didn't fully understand what his role was … in terms of a relationship between a teacher and a student.

about the second meeting said:

… so my second meeting with him was not necessarily did I believe that there was a child protection issue, but it was more to do with - I had some concerns now that, beyond the ones I had previously, about inexperience - .... I wasn't happy with the way in which he was dealing with it.

while there is a finding that the applicant engaged in sexual misconduct as described in the NSW Ombudsman guidance for allegations 2 to 17, there is no finding that the applicant’s conduct was sexually motivated.

The Decision

On 10 July 2019, the respondent made the Decision. In his reasons for refusal the Director of the respondent, having considered specified documents including information provided by the School, NSW Police Force, NSW Family and Community Services, and NSW Ombudsman relevantly stated:

Matters to be taken into consideration
In making an assessment of risk, the Children's Guardian has considered the documents referred to above and the provisions of sections 15(4) of the Act.
[The applicant] was referred to risk assessment due to a notification made under s.35 of the Act by [the School] where [the applicant] was employed as a teacher. The information provided by [the School] indicated that an investigation was conducted in relation to allegations that between 2015 and 2017, [the applicant] (aged 24 - 25 years) engaged in an inappropriate relationship with a female student when she was 16 and 17 years of age.
In October 2016, [the applicant] was also spoken to regarding his alleged conduct, reminded of the need to maintain professional boundaries with students and the child protection policy, provided a formal letter regarding the school's policies and was removed as the student's mentor. The Director of Student Wellbeing Senior School also raised with [the applicant] that the student needed to be meeting with an appropriate professional to deal with her issues and noted her concerns that the student was emotionally invested in her relationship with [the applicant]. It was also identified by the school psychologist
that [the applicant] was also overly invested in the student and her personal safety and wellbeing and again it was raised with [the applicant] his role in supporting students to access appropriate resources.
In November 2016, [the applicant] was given a formal warning letter after continuing to actively seek unnecessary contact with the student in the senior common room when he was not on duty, in teaching lessons he was not scheduled to be a part of and discussions with the student outside of school hours. Between October 2016 and May 2017, [the School] raised their concerns to [the applicant] on 8 separate occasions in person or in writing.
In the beginning of May 2017, [the applicant] was placed on several restrictions due to concerns that he had not been following previous directions and also engaging with two other female students. No further concerns were identified in relation to the two other female students and no actions were taken against [the applicant]. The restrictions placed on [the applicant] during this period involved no longer being able to attend overnight school camps, to only attend excursions with other teachers and not to enter the year 12 common room or be alone with any senior students.
At the time of the investigation, a report was made to Family and Community Services (FACS) in relation to three female students. FACS did not investigate the allegations further. FACS noted that although no explicit sexual activity was known to have occurred between [the applicant] and the student, it was considered that their interactions were inappropriate given their unequal positions of power. Limited weight has been placed on FACS material.
In April 2018, [the applicant] was advised of allegations made against him which included:
•   sending emails to the student during and after school hours, on weekends and public holidays which were personal in nature;
•   encouraging the student to use the 'notes' section of her mobile to facilitate ongoing communication which were personal and intimate in nature;
•   engaging in frequent and ongoing one-on-one conversations with the student, during and out of school hours, which were of a personal nature;
•   providing the student with a copy of his timetable detailing his classes and duty roster;
•   providing his personal mobile number into the student's mobile number as "ICE" (In Case of Emergency);
•   accessing the student's mobile phone using his pre-authorised fingerprint;
•   used a mobile program to view the student's regular bike riding routes; and
•   using his knowledge of the student's regular riding routes, met up with her while she was bike riding.
In July 2018, the AIS sustained an overall finding of 'sexual misconduct - crossing professional boundaries' and [the applicant’s] NSW teacher accreditation was suspended in November 2018.
Information provided by the NSW Ombudsman indicates that [the applicant] made a complaint to their office asserting that his conduct did not amount to sexual misconduct. The NSW Ombudsman assessed that on the available evidence, "the findings reached by [the School] were open to them".
[The applicant] has provided several documents in support of his WWCC including statutory declarations, chronology of employment and email correspondence with [the School] as well as character, employer and professional references.
In his submissions, [the applicant] stated that he has been an active member of his church as well as being involved in a BMX club, but has not specifically engaged in child-related in these activities.
[The applicant] provided a response to the Children's Guardian in January 2019. [The applicant] made admissions to breaching the school's code of conduct by forming a friendship with the student due to a shared interest in cycling, however, denied any sexual element to their friendship. [The applicant] maintains that he took steps to ensure that his contact with the student was public and that all emails sent to her were from the school email account. [The applicant] indicated that should he return back to teaching, he has developed strategies to ensure his conduct would not be repeated including; having an allocated mentor for regular guidance, ongoing feedback and support in his role as a teacher, observing experienced teachers to gain insight regarding interaction with students, attending relevant training including Child Protection training and adhering to policies and the code of conduct or issues identified.
[The applicant] also provided a professional reference noting that in July 2017 he attended counselling sessions to address the stress, depression and anxiety he was experiencing at the time of the investigation. [The applicant] stated to his counsellor that he was unaware of the allegations made against him, however, it is noted that [The applicant] was issued a letter from the Acting Headmaster in May 2017 stating that "you are aware from discussions" that there were certain issues "raised regarding your conduct towards students". It is further noted that engagement with his counsellor has been limited and there is no information before the Children's Guardian to indicate that [the applicant] sought remedial action to address the concerning behaviour.
[The applicant] provided a further response to the Children's Guardian in June 2019. [The applicant] reiterated that he made a genuine effort to change his behaviour as soon as it was addressed with him by senior staff. [The applicant] further explained that the investigation process provided him with further insight and that he now understands "how important appropriate behaviour is" and that his behaviour at the time was not in the best interests of the student. [The applicant] noted that he has rectified this by completing the 'Child Safe eLearning' course and attending counselling. [The applicant] stated that since completing the eLearning course, he realised that his training and induction through [the School] was not sufficient and this was a contributing factor as to why he was not fully aware of his role and responsibilities while he was a teacher at the school. Although [the applicant’s] submissions are critical of the training and induction provided by [the School], records provided by [the School] indicate that [the applicant] was given letters of appointment in June 2015 and January, March and August 2016 outlining the responsibility of staff in relation to the school code of conduct. Further, [the applicant] attended child protection training in February 2016.
The Children's Guardian acknowledges that since the investigation, [the applicant] has made efforts to further understand child protection procedures and has reflected on his inappropriate behaviour toward the student. However, the Children's Guardian considers [the applicant’s] conduct to be a serious breach of professional boundaries. It is considered that this breach outweighs his recent and subsequent attempts to educate himself on the subject. It is expected that a teacher with a University level education and teaching experience since 2014, should have had an adequate understanding of appropriate professional boundaries and child protection policies.
The Children's Guardian has no substantive reason to reject the findings made by [the School] and places weight on the fact that [the applicant] engaged in such conduct while he was engaged in child-related employment and persistently breached the standards expected of a teacher in a role of trust and authority. According to [the School], the issues concerning [the applicant’s] conduct were raised with him by several staff members and he was lawfully directed to moderate his behaviour with the student but failed to do so. It is acknowledged that [the applicant] argues that he did in fact change his behaviour when directed, however, the seriousness of [the applicant’s] behaviour is reflected in the letter sent to [the applicant] in June 2017, noting the preliminary view that his employment is to be terminated and his suspension during the AIS investigation. Although [the applicant] has provided some evidence of protective factors, these do not address the risks associated with his conduct.
Decision
The Children's Guardian is satisfied that [the applicant] poses a real and appreciable risk to the safety of children. For the reasons provided above, the Children's Guardian has refused to grant [the applicant] a WWCC clearance pursuant to section 18(2) of the Act.

Procedural history

On 14 June 2019, the applicant commenced these proceedings against the respondent by filing an application.
On 10 October 2019, the Tribunal made orders for the preparation of the hearing of the proceedings.

The hearing

At the hearing the applicant relied on the following written evidence:

the affidavit of himself sworn on 28 November 2019;

the psychological risk report of Miriam Wyzenbeek (Ms Wyzenbeek) dated 19 November 2019 (the 19 November 2019 Wyzenbeek report);

the supplementary psychological report of Ms Wyzenbeek dated 5 December 2019 (the 5 December 2019 Wyzenbeek report).

The applicant and Ms Wyzenbeek gave oral evidence. None of the persons who provided character references were required for cross-examination.
The respondent relied on the following written evidence:

the documents filed on 10 October 2019 (pp 1-1211 excluding pp 977-984);

the documents filed on 31 October 2019 (tabs 1-7);

the documents filed on 17 December 2019 (pp 1-186).

The applicant relied on his written submissions dated 9 January 2020 and made oral submissions.
The respondent relied on her written submissions dated 20 December 2019 and made oral submissions.

The evidence of the applicant

Affidavit of the applicant sworn on 28 November 2019

In his statement sworn on 28 November 2019, the applicant:

sets out his insights into the impact of his misconduct;

sets out his observations as to his experience as a mentor;

sets out the struggles he experienced with his mental health during the AISNSW Investigation;

sets out the steps he has taken to minimise the risk of repetition of his misconduct;

sets out the reasons why he considers himself not to be a risk to the safety of children, and his belief that he can provide a valuable service to children as a teacher, without placing them at risk. During the past 15 months he has worked solely in a design and estimation position and have gained a great insight into the industry and would be able to use this experience as a teacher.

Oral evidence of the applicant

In cross-examination, the applicant:

accepted that he was aware of his obligation set out in his letter of employment and the School Code of Conduct to comply with all directions of the School;

was questioned in detail about his conduct involving the student in September and October 2016 when and after he was her special mentor, and his contemporaneous conversations with members of staff;

accepted most of the allegations in the AISNSW Report were true and that he crossed professional boundaries;

was asked about what steps he would take in the future to avoid crossing professional boundaries;

was questioned in detail about his conduct involving another student in May 2017, and his contemporaneous conversations with members of staff;

was questioned about his failure to comply with directions he received from members of staff;

was questioned about discussions with his wife who is a teacher, members of his family and friends who are teachers, and a friend who is a psychologist, and the training of the respondent he completed, about how to ensure the safety of children.

In answer to our questions, the applicant said he received no supervision when he was a special mentor. He said that when the role ceased there was no meeting between the student and himself with another member of staff to provide an explanation of the decision. He also said he would like to be able to return to teaching in the future.

The 19 November 2019 Wyzenbeek report

In the 19 November 2019 Wyzenbeek report, Ms Wyzenbeek:

sets out her qualifications and experience;

sets out the sources of her information, being her interview with the applicant and documents received from the applicant;

states that she has assumed the facts, as they have been contained in the AISNSW Report, are true;

sets out the background to the refusal of the respondent to grant a WWCC clearance to the applicant including the reportable conduct;

sets out her observations of the applicant’s presentation and engagement;

sets out the background information received from the applicant in relation to his developmental history, educational history, employment history, medical history, substance using history, gambling history, psychosocial history, sexual functioning, medical history, psychological history and assessment, and criminal history;

records the results of the Personality Assessment Inventory (PAI) completed by the applicant to further assess his mental state and also to assess the presence of impression management:

41 Overall, [the applicant’s] response profile on the PAI is considered to be consistent with his reported history and presentation at interview.

sets out the applicant’s insight about his engagement in the reportable conduct which included:

44.   [The applicant] was accepting as to the reasons why his conduct was wrong, and he was able to identify potential negative impacts on the student as a result of his conduct He evidenced an understanding of appropriate and inappropriate behaviours with students, and he was able to identify alternative ways of demonstrating support/care to students who may be in need.
…
47.   Since being terminated from his employment with [the School], [the applicant] has tried to improve his knowledge and understanding of child protection issues, and also of the teacher-student relationship. He indicated that through his completion of the Child Safe eLearning Course, he has a better understanding of what would constitute overfamiliar and concerning behaviours between a teacher and student.

sets out the applicant’s understanding of risk management strategies;

sets out an explanation of the process of risk assessment, and identifies the factors that may have raised his risk of engaging in the sexual misconduct and crossing professional boundaries with the student, and relevant protective factors;

provides the following overall risk assessment:

57.   Overall risk assessment: Based on my assessment, [the applicant] is unlikely to engage in similar conduct. He evidences self-awareness into the reasons why his conduct was wrong, and he has accepted responsibility for it. Based on the evidence available to me, [the applicant’s] actions are not considered to have been sexually motivated, nor reflective of sexually deviant interest in children. In addition, I do not consider that [the applicant] was grooming the student for future sexual abuse, in that the contact between them was not sexual, was not sexually intimate and was not was not secretive.
58.   Based on my analysis of [the applicant’s] risk and protective factors, I assess his risk of engaging in sexually abusive behaviours to be low. It is my opinion that the risk of [the applicant] engaging in sexual misconduct and crossing professional boundaries that does not constitute a sexual offence is also low. No doubt the impact on him professionally and personally as a result of the findings of sexual misconduct - crossing professional boundaries has also had a corrective impact on him. While it is not possible to categorically state that any individual presents as 'no' risk, based on the information currently available, I consider there to be no meaningful difference between [the applicant’s] risk and that of the general population to children.

expresses the following conclusion:

63.   In my opinion, [the applicant’s] conduct and failure to moderate his behaviours when instructed was not willful nor sexually motivated, but rather was borne from his emotional and cognitive immaturity, social naivety and professional inexperience. He possessed an insufficient understanding about student-teacher boundaries and thus he evidenced deficits in his ability to recognise and correct when he was engaging in behaviours that were over familiar or when he was no-longer acting in the student's best interests. His level of over-involvement and over-familiar style of interacting was reinforced by his misguided perception of how an effective teacher establishes rapport with students. The repeat boundary breaches arose out of his need to be liked and accepted, as this was how he internally gauged his effectiveness as a teacher.
64.   I have been asked to provide an opinion with respect to whether [the applicant] is a risk to children. As outlined within the risk assessment section of this report, based on my multi-modal assessment of [the applicant], it is my opinion that he is of low risk of engaging in future harmful behaviours towards children. Based on the information available, [the applicant] does not require any formal intervention in relation to managing his risk to children and young people. However, his professional teaching career was in its infancy at the time that the notifiable conduct occurred, and he has been working outside of that profession since May 2017. Thus, he has relatively little professional experience to draw on. Whilst I do not consider there to be any significant risks with respect to children and young people, I concur with [the applicant] that it would be beneficial for him to engage in professional mentoring to continue developing his knowledge and skills associated with navigating boundaries in the teacher-student relationship.

The 5 December 2019 Wyzenbeek report

In the 5 December 2019 Wyzenbeek report, Ms Wyzenbeek expresses the opinion that the applicant does not presently require mental health counselling.

Oral evidence of Ms Wyzenbeek

In cross-examination, Ms Wyzenbeek said:

her opinions were formed from reading the whole of the material she was provided with, including the transcripts of interviews with members of staff of the School undertaken during the AISNSW Investigation;

her opinion is that the applicant does not require professional mentoring.

Character references

The seven character references for the applicant included those provided by the following persons.

The Applicant's wife

The Applicant's wife in her letter dated 13 January 2019 to the respondent states that she is a primary teacher at an independent school. She explains that she read the email correspondence between the applicant and the student. While she considered that they emailed each other too frequently she was not concerned about the content of the emails nor did she believe there was a sexual element to them. She says that since the reportable conduct the applicant has understood that the frequency, timing and personal nature of communication with a student are all factors that may put at risk a professional relationship with a child or young person. She also says that she and the applicant intend on starting a family and that there is no one that she would trust more than the applicant with the welfare and safety of her children.

The mother of the applicant's best friend

The mother of the applicant's best friend in her letter dated 13 January 2019 to the respondent states that she is a teacher and careers counsellor at a public high school and knows the applicant through her son and as a fellow attender of a local church. She considers the applicant to be a positive and stable influence on young people, a person who deals thoughtfully and carefully with her family, and someone who has honest and open relationships with those around him.
The mother of the applicant's best friend in her letter dated 13 June 2019 to the respondent says that the applicant “accepts that it is solely his responsibility for preserving emotional distance between himself and his students and that he must at all times explicitly state the limits and objectives of interactions (and) understands that his failure to establish clear boundaries places a student at risk". She is willing to provide regular professional mentoring with the applicant to ensure that he adheres to professional standards should he be active in voluntary or child related employment.

The applicant's cousin

The applicant's cousin in his letter dated 13 January 2019 states that he is a teacher at an independent school. He says that the applicant would be the first person that he would call outside his direct family for help or to take care of his two year old daughter. He also says that he has no hesitation in recommending the applicant as a teacher, friend and as a father in the future.
The applicant's cousin in his undated letter says that the applicant has expressed an objective to seek out a senior mentor both internally and externally to any child related organisation he were to be associated with. He also says that the applicant has recognised that he has in the past displayed behaviour that is not in line with child protection practices and “in the future must take assertive action to understand and implement an employer's code of conduct, child related policies and to ensure the safety of the students is always his first priority."

The applicant's friend

The Applicant's friend in his letter dated 11 January 2019 states that he is the deputy principal at an independent school and has known the applicant for 10 years as a fellow attender of a local church. He says that the applicant is “a man of integrity, strong work ethic and character” and a “trustworthy educator”.

The evidence of the respondent

The documents filed on 10 October 2019

The documents filed on 10 October 2019 comprise:

documents of the respondent created before and in dealing with the applicant’s application for a WWCC clearance;

documents provided by the School under cl 24(2) of the WWC Regulation;

documents provided by NSW Family and Community Services, NSW Police Child Abuse and Sex Squad, and NSW Ombudsman in response to an assessment notice under s 31(1) of the WWC Act;

documents submitted by the applicant including seven character references;

documents recording information obtained by the respondent during her risk assessment of the applicant.

The documents filed on 31 October 2019

The documents filed on 31 October 2019 comprise:

the applicant’s AVO and criminal history;

documents provided by NSW Police Child Abuse and Sex Squad, Department of Communities and Justice, NSW Department of Education – Probity Unit and two schools in response to an assessment notice under s 31(1) of the WWC Act.

The documents filed on 20 December 2019

The documents filed on 20 December 2019 comprise:

documents provided by a school and the applicant’s employer in response to an assessment notice under s 31(1) of the WWC Act;

documents produced by two psychologists.

Relevant legislation

The WWC Act

Part 1 (which is comprised by ss 1-5C) deals with preliminary matters, and relevantly provides that:

the object of the WWC 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;

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” : s 4;

the expression “risk to the safety of children” means “a real and appreciable risk to the safety of children”: s 5B.

Part 3 (which is comprised by ss 12-25) deals with WWCC clearances, and relevantly provides that:

a person may apply to the respondent for a WWCC clearance: s 13(1);

the respondent may conduct a risk assessment of an applicant for a WWCC clearance, and in so doing may consider the considerations expressed in slightly different language to those that are set out in s 30(1): s 15(1), (4);

the respondent must not determine that an applicant does not pose a risk to the safety of children unless the respondent is satisfied of the same matters that are set out in s 30(1A): s 15(4A);

the respondent may, at any time after receiving an application for a WWCC clearance or commencing an assessment of an applicant for a WWCC clearance, determine that the applicant is subject to an interim bar, being a bar on the applicant engaging in child-related work, if the respondent is of the opinion that it is likely that there is a risk to the safety of children if the applicant engages in child-related work: s 17(1), (2);

an interim bar ceases to have effect on the first to occur of certain circumstances including the elapse of 12 months after the interim bar takes effect: s 17(4)(c);

the respondent must grant a clearance to a person who is subject to such a risk assessment unless the respondent is satisfied that the person poses a risk to the safety of children: s 18(2).

Part 4 (which is comprised by ss 26-30) deals with reviews and appeals, and relevantly provides that:

a person who has been refused a WWCC clearance by the respondent may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision within 28 days after notice of the decision was given to the person: s 27(1);

an applicant must fully disclose to the Tribunal any matters relevant to the application: s 27(4);

when determining an application under Part 4, the Tribunal is to have regard to the following matters which are set out in s 30(1):

(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.

the Tribunal may not make an order under Part 4 which has the effect of enabling a person (called “the affected person”) to work with children in accordance with the WWC Act unless the Tribunal is satisfied of the following matters which are set out in s 30(1A)(a) and (b):

(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.

Part 5 (which is comprised by ss 31-36B) deals with the provision of information to the respondent, and relevantly provides that:

the respondent may, by notice in writing (called an “assessment notice”), require any person to provide the respondent with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children: s 31(1)(a);

it is the duty of a reporting body to notify the respondent of the name and other identifying particulars of any child-related worker against whom the reporting body has made a finding that the worker has engaged in conduct specified in clause 2 of Schedule 1: s 35(1)(a);

a reporting body includes any other employer or professional or other body that supervises the conduct of an employee prescribed by the regulations for the purposes of s 35: s 35(4)(e).

Schedule 1 deals with assessment requirement triggers, and relevantly applies where a person has been the subject of a finding by a reporting body that the person engaged in sexual misconduct committed against, with or in the presence of a child, including grooming of a child: cl 2(a).
There is no definition of the expressions “child abuse” (s 4) and “sexual misconduct” (sch 1, cl 2(a)) in the WWC Act.

The WWC Regulation

Part 5 (which is comprised by cll 23-26) deals with general matters, and relevantly provides that:

a reporting body must, on the written request of the respondent, provide the respondent with copies of records of allegations, investigations and findings concerning the subject of the notification under s 35 of the WWC Act: cl 24(2);

prescribed additional reporting bodies include members of the AISNSW: cl 25(k).

Ombudsman Act

Part 3A (which is comprised by ss 25A-25JA) deals with child protection, and relevantly provides that:

“designated non-government agency” includes a non-government school within the meaning of the Education Act 1990 (NSW): s 25A(1), para (a) of the definition;

“reportable allegation” means an allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct: s 25A(1);

“reportable conduct” includes any sexual misconduct committed against, with or in the presence of a child: s 25A(1);

the head of a designated non-government agency must notify the Ombudsman of any reportable allegation against an employee of the agency of which the head of the agency becomes aware: s 25C(1)(a);

the head of a designated non-government agency must, as soon as practicable after being satisfied that the investigation has been concluded send to the Ombudsman a copy of any report prepared by or provided to the head of the agency as to the results of the investigation, and copies of all statements taken in the course of the investigation and of all other documents on which the report is based, and inform the Ombudsman of the action that has been taken with respect to the reportable allegation the subject of the investigation : s 25F(2).

There is no definition of the expression “sexual misconduct” in the Ombudsman Act.

The ADR Act

Chapter 2 (which is comprised by ss 7-9) deals with the administrative review jurisdiction of the Tribunal, and relevantly provides that the Tribunal has administrative review jurisdiction over a decision of an administrator if the enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision made by the administrator in the exercise of functions conferred or imposed by or under the legislation: s 9(1)(a).
Chapter 3 Part 3 Division 3 (which is comprised by ss 63-66) deals with the powers of the Tribunal on an administrative review, and relevantly provides that in determining an application for an administrative review under the ADR Act of an administratively reviewable decision, the Tribunal:

is to determine what is the correct and preferable decision having regard to the material before it including any relevant factual material and any applicable written or unwritten law: s 63(1);

may decide to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside: s 63(3)(c).

The CAT Act

Part 3 (which is comprised by ss 28-34) of the CAT Act deals with the jurisdiction of the Tribunal, and relevantly provides that:

the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the CAT Act or any other legislation: s 28(1);

the jurisdiction of the Tribunal includes the administrative review jurisdiction: s 28(2)(b);

the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator: s 30(1).

Applicable legal principles

In an application for an administrative review of a decision under s 27 of the WWC Act the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including material which may not have been before the respondent: BKV v Children's Guardian [2015] NSWCATAD 65 at [9].
Neither party bears an onus in an application for review under s 27 of the WWC Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [39]-[40]. The initial practical or forensic onus but not the legal onus is generally to be carried by the applicant: DJS v Children's Guardian [2018] NSWCATAD 71 at [32]-[33].
The definition under s 5B of the WWC Act of a “risk to the safety of children” draws upon the explanation given in relation to the word “risk“ as it appeared in the former Child Protection (Prohibited Employment) Act 1998 (NSW) of “whether there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 (V) at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 (CJT) at [40].

In CJT, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in V at [42] have “been consistently applied in construing the concept of a ‘risk to the safety of children’ for the purposes of ss 27 and 28 of the Working with Children Act”.
In BKE, Beech-Jones J considered the approach to allegations that had not been proved, and noted that significant guidance could be derived from M v M (1988) 166 CLR 69, in which the High Court set out propositions for assessing risk to the safety of children in the context of Family Court litigation. Beech-Jones J at [30]-[33] held these propositions apply to the assessment of risk under the WWC Act and concluded that in some cases the Tribunal would not be able to make a finding as to whether the abuse in fact occurred or not. In those circumstances, circumstances maybe such that nevertheless there is a risk to a child.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[17] Harrison J summarised these propositions as follows:

[14] The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.
[15] The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
“… 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 came about, will have a detrimental impact on the child’s welfare.”

[16] Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].
[17] A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left “open”, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

CFW at [13]-[17] has been followed and applied: CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 at [70] (corresponding to [14] and [15] of CFW) and [72] (corresponding to [16] of CFW); CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348 at [49] (in which express reference was made to a “three-stage analysis”).
The stages of analysis undertaken in CFW at [13]-[17], whether two or three in number, represented a logical sequence of reasoning with respect to a given set of allegations and are designed to plumb the full range of considerations relevant to the assessment of risk of safety to children for the purposes of s 18(2) of the WWC Act and having regard to the object of the WWC Act being to “protect children”. It follows that, on this approach, the Tribunal is required to assess all allegations raised by the respondent although the Tribunal may disaggregate its consideration of the respective allegations and legitimately undertake a staged consideration in its judgment as it considers fit, provided there was overall compliance with the requisite statutory requirement: Children’s Guardian v CXZ [2019] NSWSC 1083 (CXZ) at [167]-[168].
In Children's Guardian v CKF [2017] NSWSC 893 at [56] Davies J observed with respect to the comments of Harrison J in CFW at [16]:

[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.

Where there is more than one allegation in respect of which the Tribunal makes an open finding, it is necessary the Tribunal to consider the accumulated weight of suspicions held as to each such allegation: CXZ at [286]-[291], [309].
In GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 at [60], McCallum J observed in the context of review proceedings under s 27(1) of the WWC Act:

[60] The statute plainly contemplates that, whereas the imposition of a criminal penalty requires proof of a specific allegation beyond reasonable doubt, it is enough to disqualify a person from clearance under the Act that there exists a real and appreciable risk to the safety of children. That is an evaluative judgement. It is to be undertaken in a very different context from the assessment of the allegations in the criminal context, most importantly including the fact that the applicant has a statutory duty to disclose all relevant information.

In an administrative review under s 27, it is appropriate to have regard to both s 30(1) and s 15(4) considerations: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [45].
In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ), where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.
The Tribunal may not grant an enabling order unless "satisfied" of the matters referred to in s 30(1A). That requires, at a minimum, that the Tribunal has made up its mind and reached a conclusion, based on the evidence, about the particular matters in sub-paragraphs (a) and (b): Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].
The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal, which is a person privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].
In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would find that any risk was insufficient to cause them to have concerns about access to their child.
In Secretary, Department of Justice v LMB [2012] VSCA 143 at [25]-[26] the Victorian Court of Appeal explained the operation of the "public interest" test in s 26(3) of the Working with Children Act 2005 (Vic), which operates to similar effect as s 30(1A)(b) of the WWC Act, in the following terms (footnotes omitted):

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children) have their suitability to do so checked by a government body'.
[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ where Bell J at [202] 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 ZZ at [202] Bell J referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said:

[203] In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.

Jurisdiction

We are satisfied that the Tribunal has jurisdiction under s 27 of the WWC Act to undertake an administrative review of the Decision under the ADR Act. When reviewing the Decision, the Tribunal is exercising its administrative review jurisdiction under ss 28(2)(b) and 30 of the CAT Act.

The written submissions of the applicant

In his written submissions, the applicant sets out the background, says he agrees with the applicable legal principles as stated by the respondent, sets out a chronology of and the applicant’s response to the events comprising the reportable conduct, and addresses the factors in s 30(1) and (1A) of the WWC Act, including making criticisms of the AISNSW Report, referring to the 19 November 2019 Wyzenbeek report and the 5 December 2019 Wyzenbeek report, and drawing attention to the character references.

The oral submissions of the applicant

In his oral submissions, the applicant repeated the substance of his written submissions.

The written submissions of the respondent

In her written submissions, the respondent sets out the background, the written evidence relied upon by the respondent and the applicant, the relevant legislation, the applicable legal principles, and addresses the factors in s 30(1) and (1A) of the WWC Act. She neither opposes nor consents to the orders sought by the applicant.

The oral submissions of the respondent

In her oral submissions, the respondent repeated the substance of her written submissions. She also drew attention to the following matters:

the Tribunal is not bound by, and may not need to deal with, the AISNSW Report;

the inability of the applicant to recognise appropriate professional boundaries and comply with directions led to the reportable conduct.

Conclusions

Assessment of the evidence of the applicant

We find the applicant to have been a truthful witness. It was clear from his evidence that the applicant has insight that his crossing of appropriate professional boundaries and failure to comply with directions led to the reportable conduct. He suffered a great deal during the the AISNSW Investigation, and has suffered as a result of the AISNSW Report.
We are satisfied that the applicant wishes to contribute to the community by being able to return to teaching in the future.

Did the applicant engage in sexual misconduct?

We disagree with the findings in the AISNSW Report that the applicant engaged in sexual misconduct. While we accept that the applicant’s behaviour constituting the reportable conduct should reasonably be construed as involving an inappropriate and overly personal or intimate relationship with, conduct towards, and focus on, the student, we do not consider its characterisation of sexual misconduct is correct. This characterisation was inevitable in view of the absence of a definition of sexual misconduct in the Ombudsman Act and the information provided in answer to the question “What is sexual misconduct?” in the NSW Ombudsman guidance. It is difficult to see how crossing professional boundaries on more than an isolated occasion must necessarily constitute sexual misconduct.
The consistent picture in the findings in the AISNSW Report and in the applicant’s admissions about his behaviour is that of a young inexperienced teacher who was out of his depth in managing his professional boundaries with the student, which was exacerbated by his assumption of the role as her special mentor. It is unfortunate that the applicant appears to have received little training and support from the School in undertaking the role of special mentor of the student. However, there is no evidence that the applicant had any sexual interest in the student.
The respondent did not submit that the applicant’s behaviour constituting the reportable conduct was sexually motivated, or submit that the Tribunal should apply the definition of “sexual misconduct – crossing professional boundaries” in section 2.2 of the NSW Ombudsman guidance.
Having regard to the evidence in AISNSW Report and the absence of any submission of the respondent to the contrary, we find that the applicant did not engage in sexual misconduct in his dealings with the student. We do not consider in the circumstances that it is appropriate to apply the definition of “sexual misconduct – crossing professional boundaries” in section 2.2 of the NSW Ombudsman guidance.

Consideration of the factors in s 30(1) of the WCC Act

We have set out below our findings as to the factors in s 30(1) of the WCC Act (other than the factor in s 30(1)(j1) which is inapplicable).

The seriousness of the matters that caused a refusal of a clearance and imposition of the interim bar, the period of time since those matters occurred and the conduct of the person since they occurred (s 30(1)(a) and (b))

The reportable conduct is serious and occurred over three years ago. However, we are satisfied that the applicant did not engage in sexual misconduct in his dealings with the student.

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant’s present age (s 30(1)(d)-(g))

The reportable conduct occurred when the applicant was aged 25 and 26 years, and the student was aged 16 and 17 years. The difference in age between the applicant and the student was 9 years. The applicant knew the complainant was a child.
Apart from her age, the student was vulnerable for the following reasons:

the applicant was a teacher at the School, was her special mentor and was in a position of authority over her;

she was experiencing some emotional turmoil and was having some difficulties at home.

The applicant is currently 28 years old.

The seriousness of the applicant’s criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(h-i))

The applicant does not have a criminal record. There are no police records for the applicant that relate to child abuse, violence or sexual offences.
We accept that the applicant now understands the nature of, and importance of adhering to, professional boundaries in dealing with students, and will implement strategies to ensure that he does not cross any professional boundary. We are satisfied that there is a very low likelihood of the applicant engaging in conduct of the same nature as the reportable conduct.

Information given by the applicant in, or in relation to, the application (s 30(1)(j))

We regard as significant and have relied upon the extensive evidence provided by the applicant, including the character references.

Any other matters that the Children’s Guardian considers necessary (s 30(1)(k))

We do not consider that any matters raised by the respondent demonstrate that the applicant poses a risk to the safety of children.

Does the applicant pose a risk to the safety of children?

Having regard to our findings that the applicant did not engage in sexual misconduct in his dealings with the student, and understands the nature of, and importance of adhering to, professional boundaries in dealing with students, we are satisfied that the applicant does not pose a risk to the safety of children.
We accept the evidence of Ms Wyzenbeek that the applicant is "of low risk in engaging in future harmful behaviours towards children". If, contrary to our finding, the applicant did engage in sexual misconduct in his dealings with the student, we would have been satisfied on the basis of the reportable conduct considered as a whole that the applicant does not pose a risk to the safety of children having regard to the unchallenged opinions of Ms Wyzenbeek.

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 (s 30(1A)(a))?

The information that a reasonable person would require to properly consider the test in s 30(1A)(a) of the WWC Act whether “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” is the evidence set out above.
Having regard to all this evidence, and particularly seven character references for the applicant, 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 whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:

the efforts made by the applicant to understand the nature of, and importance of adhering to, professional boundaries in dealing with students;

the applicant has no criminal record, and has not had any dealings with the police relating to child abuse, violence or sexual offences;

the applicant’s referees have confidence in him.

Is it in the public interest to make the orders sought by the applicant (s 30(1A)(b))?

We are satisfied that it is in the public interest to make the orders sought by the applicant for the following reasons:

the applicant should not be prevented from being able to return to teaching children;

the applicant should be encouraged to use his experience and expertise for the benefit of others through teaching children in the future.

The correct and preferable decision

We have determined that the correct and preferable decision having regard to the material before us is grant a WWCC clearance to the applicant pursuant to s 18(2) when read with s 5B of the WWC Act, and accordingly have decided to set aside the Decision and in substitution to grant a WWCC clearance to the applicant.

Order

Decision of the respondent made on 10 July 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant.

An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.

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

Registrar

Decision last updated: 07 February 2020

Medium Neutral Citation:	DZF v Children's Guardian [2020] NSWCATAD 41
Hearing dates:	20 January 2020
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member R Royer, General Member
Decision:	(1) Decision of the respondent made on 10 July 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant. (2) An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.
Catchwords:	ADMINISTRATIVE LAW — Working with children — Application for a working with children check clearance - Whether applicant poses a risk to the safety of children
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Education Act 1990 (NSW) Ombudsman Act 1974 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKV v Children's Guardian [2015] NSWCATAD 65 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 Children's Guardian v CKF [2017] NSWSC 893 Children's Guardian v CVE [2017] NSWSC 1342 Children’s Guardian v CXZ [2019] NSWSC 1083 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 CSW v Children's Guardian [2017] NSWCATAD 326 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children's Guardian [2018] NSWSC 942 DJS v Children's Guardian [2018] NSWCATAD 71 GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 M v M (1988) 166 CLR 69 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Secretary, Department of Justice v LMB [2012] VSCA 143 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DZF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S Swami (Applicant) M Giacomo (Respondent) Solicitors: EXM Law Pty Ltd (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00244945
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.