EED v Children's Guardian

[2020] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EED v Children’s Guardian [2020] NSWCATAD 161

Hearing dates:

9 June 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member
D Crowley, General Member

Decision:

(1)   An extension of time is granted to the applicant to file the application for review.

(2)   The decision under review is set aside and in substitution, a decision is made that the Children’s Guardian grant a Working with Children clearance to the applicant.

Catchwords:

ADMINISTRATIVE LAW – cancellation of working with children check clearance – allegations against applicant concerning conduct as a teacher – relevance of allegations to risk to safety of children - factors to be considered – correct and preferable decision

Legislation Cited:

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

Administrative Decisions Review Act 1997 (NSW)

Cases Cited:

BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164

BSR v Children’s Guardian [2015] NSWCATAD 264)

DAI v Children’s Guardian [2018] NSWCATAD 308

Office of the Children’s Guardian v CFW [2016] NSWSC 1406 at [14-17]

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EED (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
I Fraser (Respondent)

Solicitors:
Ian Collins Solicitor (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00016706

Publication restriction:

The publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. The applicant sought a review of the decision of the respondent to cancel his Working with Children Check clearance under s 23 of the Child Protection (Working with Children) Act 2012 (the CP(WWC)Act) . On 9 June 2020 at the hearing of the proceedings we set aside the decision under review and substituted a decision that the Children’s Guardian grant a Working with Children Check clearance to the applicant. These are our reasons for that decision.

Background

2. The applicant was previously employed as a casual primary school teacher and was issued with a clearance on 28 June 2013. On 7 August 2018 the principal of the school where he was teaching reported a number of allegations to the Department of Education’s Employee Performance and Conduct Unit (EPAC). On 12 November 2018 the Children’s Guardian received information from the NSW Department of Education regarding the allegations, which related to alleged unprofessional and inappropriate conduct which crossed professional boundaries and acting contrary to direction. An interim bar was issued by the respondent preventing the applicant from working with children pending the determination of the risk assessment.

3. The applicant’s employment with the Department was terminated on 10 August 2018. After an investigation into the allegations, the applicant was notified of the EPAC investigation findings on 1 October 2019. A number of findings of misconduct were made against him and he was placed on the Department’s Not to be Employed List.

4. On 5 December 2019 the Children’s Guardian cancelled his clearance.

5. The application was filed by the applicant on 17 January 2020 which was outside the expiry of the 28 day timeframe (s 27(1) CPWWC Act). The respondent did not oppose the granting of an extension of time to the applicant. We have made an order extending the time to file.

Legislation

6. The object of the CPWWC Act is expressed in s 3:

“3 Object of Act

The object of this Act is to protect children—

(a)   by not permitting certain persons to engage in child-related work, and

(b)   by requiring persons engaged in child-related work to have working with children check clearances.”

7. Section 4 provides:

“4 Safety, welfare and well-being of children to be paramount consideration

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

8. Section 5B provides:

“5B Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.”

9. Division 3 of Part 3 of the Act deals with risk assessments of applicants.

“14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

15 Assessment of applicants and holders

(1)   The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2)   The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3)   Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4)   In making an assessment, the Children’s Guardian may consider the following—

(a)   the seriousness of any matters that caused the assessment in relation to the person,

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

(c)   the age of the person at the time the matters occurred,

(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,

(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 or of any other matters that caused the assessment 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 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.

(4A)   The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that—

(a)   a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and

(b)   it is in the public interest to make the determination.

(5)   The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.”

10. Clause 2A of Schedule 1 provides that if information about a person has been referred under s 56(2) of the Children’s Guardian Act 2019, for the purpose of considering an interim bar during the course of an investigation, that is a trigger for a risk assessment.

11. Section 23 provides:

“23 Cancellation of clearances

(1)   The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(2)   The Children’s Guardian must notify the holder of the clearance in writing of the Children’s Guardian’s decision to cancel the clearance.

(3)   Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.

(4)   The Children’s Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.”

12. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children (s 18(2)).

13. Section 30 provides:

“30 Determination of applications and other matters

(1)   The Tribunal must consider the following in determining an application under this Part—

(a)   the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d)   the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g)   the person’s present age,

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

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

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

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

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

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

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that—

(a)   a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b)   it is in the public interest to make the order.

(2)   On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

(3)   (Repealed)”

14. Section 63 of the Administrative Decisions Review Act 1997 provides:

“63 Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

Evidence

15. The Tribunal had the following material before it from the applicant:

1. Application for review

2. Statement of the applicant dated 26 March 2020.

3. Bundle of documents relating to Workers Compensation Commission proceedings.

4. Psychological report of Lee Knight dated 14 April 2020

16. The following material was filed by the respondent:

1. Section 58 documents filed 23 March 2020

2. Further documents filed 6 May 2020.

Issues to be determined

17. The proceedings are in the nature of a merits review under s 27 of the CPWWC Act and there is no presumption that the applicant poses a risk to the safety of children. It has been held that neither party bears an onus of proof in relation to an application under s 27 (BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164 at [32]). The applicant however has a practical onus of identifying material which will support his application.

18. At the commencement of the hearing the respondent neither supported nor opposed the application. Following the cross examination of the applicant the respondent withdrew any opposition to the application.

19. The Tribunal must determine whether the applicant poses a real and appreciable risk to the safety of children and consider the matters listed in s 30(1) of the Act. If the Tribunal concludes that the applicant does not pose a risk to the safety of children then it must also be satisfied as to the matters in s 30(1A) before determining to grant a clearance.

20. In assessing whether there is a risk, the Tribunal should consider whether any positive findings can be made as to alleged acts of wrongdoing on the balance of probabilities. Even if no such positive finding can be made the Tribunal is still obliged to consider whether all the facts indicate questions of risk, unless the allegation is groundless. If a doubt or suspicion remains, this may count against the applicant (Office of the Children’s Guardian v CFW [2016] NSWSC 1406 at [14-17]; BSR v Children’s Guardian [2015] NSWCATAD 264)

The allegations

21. There were 15 separate allegations against the applicant in relation to his work as a primary school teacher in 2018. In summary, they were:

1. Sending inappropriate messages to a student’s mother, some outside school hours, concerning both the student and personal matters and in one case requesting to visit the mother’s home.

2. Telling a student and her mother that he had seen a particular car in their driveway; telling the mother that he knew the model and registration of her car; and asking another parent for the mother’s phone number via Facebook message.

3. Sending inappropriate text messages to a student’s mother asking about the student’s welfare.

4. Sending inappropriate communications via Facebook to a student’s mother, sometimes late at night.

5. Acting inappropriately by asking a student’s mother if he could park his car at her house while he was overseas, sending a Mother’s day message and attending the student’s netball game.

6. Acting unprofessionally by sending a lot of See Saw messages to parents of a student, asking the student questions about her siblings, telling the student that he wished to see her house and that he could go to her house for dinner.

7. Acting unprofessionally by driving in a dangerous manner near the school and having students film it.

8. Inappropriately meeting with students alone, in a classroom and in the library.

9. Inappropriately allowing small groups of students in the classroom during recess and lunch.

10. Inappropriately giving students lollies, biscuits and chips and continuing this conduct after being told to cease.

11. Inappropriately allowing a small group of girls into the classroom and giving them lollies on the school open day.

12. Inappropriately asking some students to keep secret that he had given them lollies and that he may be leaving the school.

13. Acting inappropriately by communicating negative impressions of obese people to students and showing a Youtube clip of an obese Asian man running.

14. Acting inappropriately by making a number of comments to students and parents that were critical of other teachers and school programs.

15. Failing to support his colleagues by undermining instructions given to students on the school bus and during sport.

22. Allegation 7 was dismissed by EPAC on the basis that the applicant had already been counselled about this matter. Allegations 3, 5, 8, 9 (part) and 13 were found to be substantiated but not to amount to misconduct. Allegations 1, 2, 4, 6 (part), 9 (part), 10, 11, 12, 14 and 15 were found to be substantiated and held to be misconduct. There was insufficient evidence to establish the balance of allegation 6.

23. In its decision, the Children’s Guardian’s reasons for finding that the applicant posed a risk to the safety of children included the following:

“…the totality of his behaviour indicates a pattern of persistent overfamiliarity with parents known briefly in an educational context, and inappropriate conduct towards students, parents and colleagues. His behaviour made people feel uncomfortable and his behaviour continued, even after being addressed by colleagues and a parent. … There is evidence to indicate that he openly and persistently breached the professional and protective boundary on multiple occasions. The ability to maintain this boundary is essential because failure to do so increases the risk of the grooming and exploitation of children.”

24. It was not alleged that the applicant had ever groomed or exploited children. The applicant has worked as a teacher for approximately 4 years in Australia and elsewhere and there was no evidence of any other allegations or disciplinary outcomes. The applicant does not have a criminal record.

25. In our view, allegations 14 and 15 on their face have no relevance to whether the applicant poses a real and appreciable risk to children. They concern the applicant expressing views on school programs and his collaboration with colleagues. We have not considered them as part of our decision.

Consideration of the allegations

26. The remaining allegations fall into two main categories – communications with parents of students and in some cases the students also (allegations 1 to 6); and conduct at school involving students (allegations 7 to 13).

27. In most cases the applicant conceded the conduct but stated in some cases that there were reasonable excuses for the behaviour or that the behaviour had been misinterpreted.

28. We had the benefit of having the EPAC investigation report together with the applicant’s response to the allegations and transcripts of interviews conducted by EPAC. The applicant was cross-examined at the hearing.

29. Allegations 1 to 6, in summary, related to an alleged failure to maintain suitable professional boundaries in communications between himself and parents or in a few cases, students.

30. Under Allegation 1, the applicant sent the mother of a student 31 text messages over a period of approximately 6 weeks. The messages discussed personal difficulties the applicant was having including that a friend had breast cancer and that he was “seeking a friend”. The parent said that she was made uncomfortable by some of the messages.

31. The applicant agreed he had sent the texts but his evidence was that he was struggling with a lack of support at the time, felt isolated and had reached out to the parent as they had recently had a friendly discussion in which she offered her support. He said that the parent had been very informal in her manner towards him and shared personal information about her job and marriage with him. He apologised to her by text and accepted that he had exceeded the professional boundaries. He said that he had not received any training about professional boundaries for teachers during his degree or from the Department, or on communication with parents.

26. Under Allegation 2, the parent said that the applicant had, during a discussion, told her that he had seen her car in the driveway and told her the make and registration number. She said that he told her that he used to work in highway patrol and so was observant of these matters. She said her daughter also said to her a few weeks later that the applicant had said to her that he saw a gold care in their driveway. The parent said she found this very odd. The applicant also asked a number of mothers for the phone number of this parent the day after her daughter was injured in class.

27. The applicant said that the conversation about cars was innocent in nature. He had worked in highway patrol in the Singapore Armed Forces between 2009 and 2011 and remembering registration numbers was part of his job. As the parent was a police officer he spoke to her about it. However he agreed it was not appropriate in a teacher-parent context. He agreed that he asked the student if they had a visitor. He agreed it was understandable that the parent would not be comfortable with him asking such a question.

28. He was trying to get the mother’s phone number as he wanted to offer sympathy after the student was injured as she was in his Maths group. He agreed he should have approached the School office to find the telephone number.

29. We consider that the applicant’s messages and actions in Allegations 1 and 2 were unwise and unprofessional however, we accept his explanation and find that they do not give rise to any risk to the safety of children.

30. The alleged inappropriate messages to a parent in Allegation 3 were messages about the health of a student and were deemed inappropriate because of the “personalised overtones” and “swiftness”. While the messages were not denied by the applicant, we do not regard the messages as inappropriate in that context and do not consider the conduct posed a risk.

31. Allegation 4 related to the applicant sending the mother of a student a friend request via Facebook and a series of Facebook messages. The mother said she found this “weird” but accepted the friend request, which arrived the day after she had rendered first aid to the applicant after he suffered heatstroke. The applicant said the messages were polite and not inappropriate. He conceded he sent her a photograph of her son as alleged however it was actually a photograph of a group of students. Under cross-examination he agreed it was not appropriate.

32. We consider that the messages were not what might be considered professional behaviour from a teacher but we do not perceive any risk arising from them.

33. The only part of Allegation 5 which in our view could relate to a risk to children concerned the allegation that the applicant attended the student’s netball game on a weekend. The student’s evidence to the investigation was that she had told him she played netball at a certain location and he had replied that he lived near there and might come and watch a game.

34. The applicant stated under cross-examination that he had taught the student and he lived 200 metres from the netball court. The student told him when her match was on and he had attended. He agreed in hindsight it was not the best idea. He did not approach the student or her parent, but just greeted the parent in passing.

35. On the available evidence we consider that this conduct, although established, does not raise any risk.

36. With regard to allegation 6, there was evidence that “See Saw” is an app which the Department promotes for use by teachers to communicate with parents. The parents of one student complained that the applicant messaged them too frequently and sometimes late at night. The messages were described “completely benign”. It was also alleged that he had:

1. asked the student where her older sisters worked and questions about them; and

2. said he would like to see her house and come for dinner.

The student was interviewed but denied that the applicant had asked or told her these things.

The applicant agreed he had sent the messages but he was required to do so and they were for information of the parents. He sent them late at night as that was when he had free time to do so. There is insufficient evidence to substantiate the second set of allegations. Even if the allegations concerning messages were substantiated, we do not consider that they raise any issue of risk to children.

43. We note that Allegation 7 was dismissed. While the alleged conduct showed some negligence, the negligence relates to driving rather than the care of children and neither the school principal nor the Department regarded it as serious.

44. Allegation 8 relates to the applicant meeting one on one with students. One meeting occurred in the classroom and two occurred in the library with other people in the library. It was alleged that the classroom meeting took place with the lights off and blinds drawn. Other teachers gave evidence that the applicant had lamps in his classroom so the main lights were always off. The applicant conceded that he had met in the classroom with a student alone with the door closed but not locked, but the lights were not off. He could not recall if the blinds were down. He said that he had never been told not to be alone in a room with a student. There was evidence from the parents that the student concerned had missed a number of classes and was making up missed lessons with the applicant.

45. The other allegations related to the applicant speaking to a student about her medical appointments on two occasions in the school library. The allegation was raised by a teacher who was concerned that the student was being taken away from her work and that it was not professional to discuss those matters at that time. The teacher said that he felt it was motivated by the applicant wanting to be involved with the students and be a great teacher. EPAC concluded that the applicant’s motivation was professional or academic rather than personal and did not reach the threshold for misconduct. We accept this finding.

46. While we agree that it is not advisable for a teacher to meet alone with a student in a classroom, or take a student away from their studies to discuss medical matters unless they are urgent, there is no evidence that the meetings were not for a proper purpose and it was not alleged that anything occurred which posed a risk to the child.

47. Allegation 9 relates to the applicant meeting in small groups with students for the purpose of games, helping with tasks, and conversation. A number of students were interviewed by EPAC. Their evidence was generally to the effect that they were allowed to be in the classroom at lunch time to finish work, to help with tasks, or to play a maths game on the computer. Sometimes they were given sweets for rewards for helping. Other teachers felt the students should be outside during lunch hour, having a break. He was spoken to by the Assistant Principal and told that he should not keep them in at lunch.

48. The applicant said that he did ask students to help with tasks occasionally at lunchtimes. He said that he mainly asked boys to help. He did not single out particular students.

49. EPAC considered that the conduct was unwise and contrary to usual procedures but noted there was not a firm policy on the matter at the school. Again EPAC considered the applicant’s motivation was professional or academic rather than personal. It made a finding of misconduct based on the applicant’s disregard for the directions given to him by his supervisor. We accept that the conduct was established on the balance of probabilities, but we do not consider there was anything sinister in the conduct which, while unwise, did not pose a risk to the safety of children.

50. Allegations 10 and 11 related to the applicant giving sweets to students. There was evidence from numerous students that the applicant had given them sweets and snacks as rewards for good work or good behaviour. He was told that this was not school policy and it should cease, however there was evidence that the practice continued.

51. The applicant said that the sweets were rewards and he also gave snacks or biscuits to some students who came without lunch. He did not deny that he continued to do so. However this is an issue relating to breach of school rules rather than an issue of risk, and this was the basis of the misconduct finding.

52. Allegation 12 involves asking students to keep secret that he had given students sweets and that he might be leaving the school the following year.

53. There was some evidence from students that the applicant had told them secrets but some students could not remember what the secret was. One student said she had been asked not to tell the rest of the class about the snacks he kept in his cupboard as he didn’t want the other children always asking for them.

54. Parents of several students said they had been told by their children that he had told them that he would not be teaching at the school next year and asked them not to tell anyone. No students gave evidence of this, however.

55. The applicant denied telling any children to keep secrets and said that this had been misinterpreted. He said that he told them that some teachers leave the school every year as they were curious about it. We consider the evidence does establish that the applicant asked students not to tell other people something he had told them, whether or not it was expressed as “keeping a secret”. This was clearly wrong and inappropriate conduct in relation to primary school children and was a failure of his professional duty as a teacher to recognise that it may upset them or make them anxious. However we consider this a failure of judgement and knowledge in a relatively inexperienced teacher.

56. Allegation 13 relates to making comments about fat people and showing a video of an obese man running. There was evidence from a student that he made jokes about obese people quite often and it made her feel a bit upset. Several parents reported that their children had told them that he engaged them in a game to see how many fat people they could see on an excursion.

57. The applicant conceded that he showed the class a video of an obese man running and that he thought it was funny. He agreed that it was a poor decision to make. He denied making the comments about overweight people as they were reported, although we infer that he conceded making some comments of that nature.

58. We find it is more probable than not that the applicant made the comments and showed the video. This was clearly a failure of his obligations to show respect for other people and have a positive influence on the students’ personal development. Such conduct may create a risk to the psychological safety of children if persistent and repeated, however in this case the risk appears very low.

Risk assessment

59. The applicant has lived in Singapore, Australia and the UK since his birth. He completed his university studies in Sydney. He taught in the UK for one year and then returned to Sydney where he has lived and worked in Australia since. His immediate family do not live in Australia and he was not in regular contact with them until the investigation. Since that time he said he has received moral and emotional support from his parents and that has helped him re-evaluate his own behaviour.

60. In addition to the material referred to above with regard to risk, we also considered a report prepared by Mr Lee Knight, Clinical Nurse Consultant (Forensic Mental Health) accredited under the NSW Child Sex Offender Counsellor Accreditation Scheme.

61. Mr Knight expressed that the applicant was able with some prompting to acknowledge that his actions showed significantly impaired judgement and that he now better understands professional boundaries. He had a relationship breakdown in 2016 and was assessed by a community mental health team at hospital but not admitted. In September 2018 he complained of anxiety and depressive symptoms after his employment being terminated.

62. Mr Knight’s opinion was that the applicant appeared to have more awareness of how his behaviour demonstrated a serious lack of judgment and was able to identify more appropriate strategies for engaging with children and their parents. He would, however, benefit from further psychological interventions and workplace supervision to embed these learnings in practice. There did not appear to be any evidence of sexual deviance and it seemed that the applicant was seeking validation, emotional support and acceptance from the parents and children by his behaviour.

63. The applicant stated he has seen a counsellor six times and a psychiatrist twice since he lost his job to help him deal with depression and anxiety. He understood the child protection and mandatory reporting requirements of a teacher as it was covered in his degree and reinforced at work.

Matters under s 30(1) of the CPWWC Act

(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,

64. The applicant has not committed any offences. The relevant matters were the allegations and findings of EPAC. Above we have set out our findings in relation to those matters. Some were not relevant to risk in our view. Others were relevant to risk but for those established, the risk was either non-existent or very low.

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

65. The matters occurred in 2018 and since that time the applicant has been unemployed and no other issues of conduct have been raised.

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

66. The applicant was approximately 28 years of age.

(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,

67. There were no “victims” as such but the children named in the allegations were in year 4, therefore we assume they were 9 to 11 years of age. We note that some of the complaints were made by parents of children about conduct towards them, and we have no information as to their age.

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

68. The difference in age between the applicant and the children was approximately 17-19 years.

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

69. The applicant knew they were children as he was their teacher.

(g) the person’s present age,

70. The applicant is 30 years of age.

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

71. The applicant has no criminal record. The conduct of the applicant since the matters has been without incident, except that he has suffered depression and anxiety and it has been recognised by the Department’s workers compensation insurer that he suffered psychological injury caused by the investigation and consequent actions.

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

72. On the available evidence, we have reached the view that the conduct which led to the complaints was caused by the applicant wishing to excel as a teacher but not understanding the importance of maintaining professional distance and negating any possibility of his behaviour being misinterpreted. Another relevant factor was his psychological state at the time and his isolation.

73. We are satisfied that the applicant understands that his conduct showed poor judgement and that he should have sought assistance earlier. We consider that he has shown an ability to find validation and emotional support outside work and for these reasons we consider that the likelihood of any repetition is extremely low.

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

74. No such order was drawn to our attention.

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

75. We have considered the applicant’s evidence and the expert report elsewhere in these reasons.

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

76. There is no such information.

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

77. No such matters were drawn to our attention.

Matters under s 30(1A)

78. Under s 30(1A) of the CPWWC Act the Tribunal may not make an order which has the effect of enabling a person to work with children in accordance with the Act unless the Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and it is in the public interest to make the order.

79. The Tribunal has held that the first part of the test is an objective one. In DAI v Children’s Guardian [2018] NSWCATAD 308 it was held (at [91]):

“In order to properly consider this test, a “reasonable person” would need know about the disqualifying offence, the circumstances surrounding the offence, the applicant’s entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.”

80. In our view, a reasonable person would allow his or her child to have direct unsupervised contact with the applicant in any child-related work because:

1. His conduct overall did not pose a risk to the safety of children and in the isolated incidents where there may have been a risk, it was very low;

2. He was affected by isolation and had suffered from depression and anxiety;

3. He has shown an understanding of why his conduct was inappropriate and how to address these issues in future, and has sought psychological help to improve his mental state.

81. Having regard to the applicant’s age, situation and personal history, his evident ability to contribute to society and his desire to work, we were also satisfied that it is in the public interest to make an order granting a clearance.

82. Being satisfied as to those matters, and based on our consideration of the evidence and assessment of risk, we have determined that the correct and preferable decision in this case is to grant the applicant a Working with Children Check clearance.

Orders

1. An extension of time is granted to the applicant to file the application for review.

2. The decision under review is set aside and in substitution, a decision is made that the Children’s Guardian grant a Working with Children clearance to the applicant.

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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: 25 June 2020