EHM v Children's Guardian - [2021] NSWCATAD 205

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EHM v Children’s Guardian [2021] NSWCATAD 205
Hearing dates: 16 March 2020
Date of orders: 15 July 2021
Decision date: 15 July 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
R Royer, General Member
Decision:
(1) The decision of the Children’s Guardian dated 2 April 2020 to refuse to grant the applicant a working with children check clearance is affirmed.

Catchwords:
ADMINISTRATIVE LAW — application for review under s 27 of Child Protection (Working with Children) Act 2012 — where teacher acquitted of criminal charge alleging indecent assault of a female student under the age of 16 years — assessment of risk

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34
CHB v Children’s Guardian [2016] NSWCATAD 214

Category: Principal judgment
Parties: EHM (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Guy (Applicant)
A Douglas-Baker (Respondent)
Solicitors:
Thompson Madden Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2020/00129301
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 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

Introduction

This is an application for administrative review, pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (the Act), of the decision of the Children’s Guardian (the respondent) made on 2 April 2020 under s 18(2) of the Act. The respondent’s decision (the Decision) refused to grant a Working with Children Check (WWCC) clearance on the grounds that, in its assessment, the applicant poses a risk to the safety of children.
The applicant was charged in January 2018 with ‘Indecent assault person under 16 years of age’ (the indecent assault charge) and ‘Aggravated indecent assault’ (the aggravated indecent assault charge) under, respectively, ss 61M(2) and 61M(1) of the Crimes Act 1900 (NSW). Offences under s 61M are specified as disqualifying offences in Sch 2(1)(e) to the Act.
The applicant appeared before the Local Court in relation to the two alleged offences. On the first day of the criminal trial, the aggravated indecent assault charge was dismissed. At the end of the three-day hearing in early 2019, the applicant was acquitted of the indecent assault charge.
As a result of the criminal proceedings commenced against him, the applicant has a record listed under cl 1(1)(b) of Sch 1 to the Act for an offence specified in cl 1 of Sch 2 to the Act. Accordingly, the respondent was required to conduct a risk assessment of the applicant pursuant to ss 14 and 15(1) of the Act for the purpose of determining whether he poses a risk to the safety of children. The result of that risk assessment was the refusal to grant a WWCC clearance to the applicant.
The applicant submits that he does not pose a risk to the safety of children, that a reasonable parent would allow his or her child to have direct contact with him unsupervised, and that it is in the public interest for the respondent to grant the clearance.
The applicant has asked the Tribunal to make orders to overturn the respondent’s Decision and declare that he is to be treated as a person who is eligible to apply for a clearance.
The respondent opposes the application and has submitted that the Tribunal should affirm the Decision and dismiss the application.
In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to the safety of children.
The applicant has a statutory obligation to fully disclose to the Tribunal any matters relevant to his application.
The Tribunal must determine the “correct and preferable” decision with regard to the material before it, including material which may not have been before the respondent: s 63(1) of the Administrative Decisions Review Act 1997 (the ADR Act). The Tribunal may make orders that include an order to affirm the Decision or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration: s 63(3) of the ADR Act.

Prohibition order

Due to the sensitive nature of these proceedings and to protect the identity of an alleged child victim, an order was made on 4 June 2020 under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym ‘EHM’ has been used for the applicant’s name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed. Geographic locations, certain calendar dates associated with the alleged events and the criminal trial, as well as the names of institutions or entities, have also not been disclosed to protect against identification of any person associated with these proceedings.

Issue for determination

In determining the application, the Tribunal is to decide whether on the balance of probabilities the applicant poses a real and appreciable risk to the safety of children. In deciding this issue, the paramount consideration is the safety, welfare and well-being of children and, in particular, protecting them from child abuse: s 4 of the Act.
When determining an application under Part 4 (Reviews and Appeals) of the Act, including an application pursuant to s 27, the Tribunal must consider the matters set out in s 30(1) of the Act. Then, if the Tribunal is minded to make an order enabling the applicant to work with children, it must satisfy itself on the two-part test set out in s 30(1A) of the Act.

Material and evidence before the Tribunal

In determining this matter, we have taken into account the following:

Written material filed on behalf of the applicant

Application for administrative review (marked for identification as “A1”);
Affidavit of EHM made on 14 August 2020 (marked “Exhibit A2”);
Affidavit made by the applicant’s treating General Practitioner (Dr D) on 17 August 2020 in support of the application (marked for identification as “A3”);
Affidavit made by Mr E on 14 August 2020 in support of the application (marked for identification as “A4”);
Affidavit made by Ms E on 14 August 2020 in support of the application (marked for identification as “A5”);
Affidavit made by Mr O on 14 August 2020 in support of the application (marked for identification as “A6”);
Affidavit made by Mr B on 2 March 2020 in support of the application (marked for identification as “A7”);
Affidavit made by Ms B on 2 March 2020 in support of the application (marked for identification as “A8”);
Expert Assessment Report dated 15 July 2020 prepared by Ms Anne Lucas, Forensic Psychologist (Ms Lucas) (marked “Exhibit A9”);
Reference dated 12 August 2020 from the applicant’s treating Psychologist, Ms Johanna Baalbergen (Ms Baalbergen) (marked “Exhibit A10”); and
Outline of Submissions filed on 8 March 2021.

Written material filed on behalf of the respondent

Volumes 1, 2, 3 and 4 comprising documents filed pursuant to s 58 of the ADR Act (marked “Exhibit R1”);
Documents produced under summons by Ms Baalbergen and filed on 25 June 2020 (marked “Exhibit R2”);
Statement of a local church minister (the Pastor) made on 11 September 2020 (marked “Exhibit R3”); and
Outline of Submissions filed on 11 January 2021.

Oral evidence

The oral evidence given during the hearing by:

the applicant;

Ms Baalbergen;

Ms Lucas;

the Pastor.

Oral submissions

Closing oral submissions made on behalf of the parties.

Background

Overview of the applicant’s personal and professional life

The applicant lives with his wife of 27 years and their two daughters. He first started working as a primary school teacher in around 1997 and continued to be employed in that capacity until he was suspended from his teaching position at a local school (the School) in early 2018.
The applicant’s role as a student and teacher with a local martial arts centre was also suspended in late January 2018 as a result of the allegations. His affidavit evidence is that he no longer has a relationship with that centre.
Subsequently, after being acquitted of the indecent assault charge, the applicant’s employer engaged a private child safety consultant to undertake a reportable conduct investigation (the workplace investigation) discussed in more detail below. Following the conclusion of that investigation, EHM’s employment was formally terminated for ‘serious misconduct’ within the meaning of his employment contract with the School.
The applicant challenged his dismissal in the Fair Work Commission and the matter was settled between the parties under a confidential deed of release.
EHM is currently undertaking a Bachelor of Sport and Exercise Science. That qualification would entitle him to work with older adults to help them achieve functional capability. It would also qualify him to work with children in coaching school sports, subject to obtaining a WWCC clearance. EHM has aspirations to return to work in education. He also aspires to return to tutoring of children and to possibly teach children in martial arts at another local centre, both of which require a WWCC clearance. From material in Exhibit R1 concerning the respondent’s risk assessment pursuant to ss 14 and 15(1) of the Act, it was apparent that the applicant at one point in time may have hoped to be reinstated at the School although this aspiration may no longer be current.

The Decision of the Children’s Guardian refusing to grant a WWCC clearance

Prior to being charged with the alleged offences in January 2018, the applicant had a WWWC clearance and worked as a teacher.
About two weeks before being charged, EHM was served by the NSW Police with a provisional apprehended violence order (AVO) for the protection of the complainant. Following EHM’s acquittal, the AVO was withdrawn and dismissed.
Upon receiving notification from the NSW Police in January 2018 regarding EHM’s then pending charges, the respondent cancelled his clearance.
After the aggravated assault charge was withdrawn on the first day of the criminal trial and the applicant was acquitted of the indecent assault charge, he became eligible under s 13A(2)(a) of the Act to apply for a clearance. The applicant did so on 9 April 2019.
After imposing an Interim Bar on 15 July 2019 pending the determination of a risk assessment as required under ss 14 and 15(1) of the Act, the respondent completed the required assessment. Ultimately, the respondent was satisfied that the applicant poses a real and appreciable risk to the safety of children and refused to grant EHM a WWCC clearance on 2 April 2020.
With reference to information contained in Exhibit R1 and the respondent’s Decision, the Tribunal notes that the respondent took into account information including:

information from the NSW Police;

information from the Department of Communities and Justice (DCJ) which substantiated the alleged offences and identified the applicant as a “Person Causing HARM (PCH)”;

information received by DCJ that the applicant had confessed to the Pastor that he had touched the complainant on the breast, and stated that he couldn’t explain why;

the sustained findings against the applicant of ‘serious misconduct’ and “a breach of the [School] Staff Code of Conduct” resulting from the workplace investigation;

the applicant’s admission during the criminal trial that he had accidentally brushed against the complainant’s breast;

that the alleged offences could not be proved beyond reasonable doubt in the criminal trial, influenced in part by the inability to prove the length of time during which the applicant was alleged to have touched the complainant’s breast and an argument that the applicant was not ambidextrous and would have had to be a ‘contortionist’ to touch the complainant as alleged;

arguments by the applicant’s defence team that the complainant had confabulated the allegations and was possibly infatuated with the applicant, and that therefore she lacked credibility;

that no misconduct or complaints have been levelled against the applicant throughout his career;

the complainant’s mental health and fragility;

the applicant’s history with depression and medication;

that despite having more than 20 years’ experience in teaching and having received mandatory training on the Staff Code of Conduct (which applied in the school where he was employed), the applicant still placed himself in a compromising position by being alone with the complainant and interacting with her, in the manner acknowledged by him;

character, professional and employer references attesting to the applicant’s positive character and the referees’ high regard for him, and their observations of him as a teacher and member of the community;

a professional reference from Ms Baalbergen who endorsed the applicant’s engagement in child-related work, based on his presentation during their counselling sessions and his version of events;

submissions made on behalf of the applicant’s solicitor refuting the position of the respondent, placing weight on information that had been tested in the criminal trial, the weaknesses in the workplace investigation and the asserted discrepancies between the complainant’s allegations and the ‘improbability’ of the alleged conduct occurring.

The respondent’s Decision reached the following conclusions:

“…in review of the totality of information before the Children’s Guardian, the substance of the allegations remained consistent. For this reason, the Children’s Guardian considers the complainant to be a credible and reliable witness and has placed weight on her version of events.
…
Although arguably on the lower end of the scale of sexual offending, the alleged conduct is exacerbated by the fragility and vulnerability of the … complainant as she suffers from serious psychological issues, which [the applicant] was aware of. Additionally, a significant power imbalance was generated by [the applicant’s] age comparative to the complainant’s, and as her prior school teacher and family friend, [the applicant] allegedly violated a position of trust and authority. Further, weight has been placed on the recentness of the alleged offences.
…
Significant weight has been placed on the substantiated findings of the [School’s] workplace investigation and consequently the termination of [the applicant’s] employment. Further, significant weight has been placed on the findings of DCJ identifying [the applicant] as a PCH. This weight is attributed as DCJ, like the Children’s Guardian, operates on the same standard of proof; the balance of probabilities and operates with the care and protection of children as their core function. In having regard to all of the available information and its recency, it is open to the Children’s Guardian to make a finding and on balance of probability, the Children’s Guardian has made a finding that the alleged conduct more likely than not, did occur.”

EHM then filed an application for administrative review on 29 April 2020, which is the subject of these proceedings.

Applicable legislation and legal principles

Jurisdiction of the Tribunal

The protective jurisdiction of the Act is plainly evident from its stated object as set out 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.

The paramount consideration in the operation of the Act is set out in s 4:

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.

Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY’s case) at [26]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [34].

Meaning of “risk to the safety of children”

“Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.
The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children”. In considering this critical aspect of the meaning of “risk”, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 (V’s case) at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 (BKE’s case) at [26]):

“…what one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children’.”

The Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ’s case) at [26].

Child-related work requires a WWCC clearance

The meaning of “child-related work” is set out in s 6 of the Act. Work that is referred to in s 6(2) of the Act that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work, is defined as “child-related work” for the purposes of the Act. Work in education is declared to be child-related work under s 6(2)(g) of the Act, requiring a WWCC clearance.
The Tribunal notes the applicant’s aspiration, if granted a clearance, to tutor students privately. That activity also comes within s 6(2)(g) of the Act with reference to “education”. The Tribunal also notes the applicant’s aspiration, if granted a clearance, to provide classes in martial arts (potentially for both adults and children). That activity comes within cl 7(1) and (2) of the Child Protection (Working with Children) Regulation2013 dealing with “Clubs or other bodies providing services for children” and accordingly requires a clearance.

Requirement for the Children’s Guardian to be satisfied that a person is not a risk to the safety of children

Under s 18(2) of the Act, the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Div 3 of the Act unless it is satisfied that the person poses a risk to the safety of children.
As noted previously, the charges against the applicant relate to offences which are specified as disqualifying offences in Sch 2(1)(e) to the Act. The applicant was charged in February 2018 with the indecent assault charge and the aggravated indecent assault charge under, respectively, ss 61M(2) and 61M(1) of the Crimes Act. Offences under s 61M are specified as disqualifying offences in Sch 2(1)(e) to the Act. Accordingly, the respondent was required to undertake a risk assessment of the applicant, guided by the provisions of s 15(4) of the Act.

The result of that risk assessment was that the respondent was satisfied that the applicant poses a real and appreciable risk to the safety of children and accordingly refused the applicant’s WWCC clearance.

Neither party bears an onus of proof in these proceedings

Neither the applicant nor the respondent bears an onus of proof in relation to the application: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32], per Senior Member Anderson. This differs from the presumption in s 18(7) of the Act in proceedings where an enabling order is sought.

Statutory obligation to fully disclose relevant matters to the Tribunal

Pursuant to s 27(4) of the Act, the applicant “must fully disclose to the Tribunal any matters relevant to the application”.

The task for the Tribunal in determining the “correct and preferable” decision

The Tribunal’s task is not to undertake a review of the respondent’s Decision. The Tribunal must determine the “correct and preferable” decision with regard to the material before it, including material that may not have been before the respondent, and the applicable law: s 63(1) of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie AJJA agreed); applied in BHY v Children’s Guardian [2015] NSWCATAD 91 at [14], per Senior Member Anderson.
Section 63(2) of the ADR Act allows the Tribunal, for the purpose of determining an application, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
In determining an application, understanding the effect of s 63(1) and (2) of the ADR Act, the Tribunal must not simply “stand in the shoes” of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 (DYH’s case) at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator’s decision:

“The effect of these two subsections is sometimes characterised as the Tribunal being required to ‘stand in the shoes’ of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) ALD 60 at 77.”

The approach to fact finding and the assessment of risk

In determining the application, the Tribunal is required to consider “the totality of the evidence”: BKE’s case at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before it: CYY’s case at [69]-[71].
In relation to the assessment of risk, the Tribunal is bound to follow the decision in BKE’s case at [33]. Alleged incidents may be found to have occurred on the balance of probabilities having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34 or they may be found to have not occurred. Nonetheless, Justice Beech-Jones said at [33]:

“Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

In Office of the Children’s Guardian v CFW [2016] NSWSC 1406 (CFW’s case) at [14]-[15], per Justice Harrison:

the Tribunal should first consider whether:

“positive findings” can be made as to any alleged act(s) of wrongdoing on the balance of probabilities; or

whether the Tribunal has “no hesitation in rejecting the allegation as groundless”; and

if no “positive finding” can be made, unless the Tribunal can determine that the allegation is “groundless”, the Tribunal must consider the question of risk: whether on the evidence there is a risk of harm occurring (such as sexual abuse).

Where the Tribunal is unable to make a positive finding, if there is nonetheless a “lingering doubt or suspicion” which remains then such doubt or suspicion does not count against an applicant for a WWCC clearance: Children’s Guardian v CKF [2017] NSWSC 893 (CKF’s case) at [56], per Davies J. Equally, such doubt or suspicion is not fatal: CFW’s case. Rather, it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the applicant poses a risk to the safety of children: CKF’s case at [56].
Relying on the analysis in CXZ’s case at [51], a “very many cases” will not lend themselves to definitive factual determination. Where an allegation is neither “well founded” nor “groundless”, this Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ’s case at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ’s case at [53].
Overall, with respect to the tasks of fact-finding and assessing risk, the propositions that may be distilled from BKE’s case as having particular relevance in these proceedings are appropriately summarised by Counsel for the respondent. They are set out below:

in order for the Tribunal to find there is a real and appreciable risk to children it is not necessary that the Tribunal makes an affirmative finding that an allegation of abuse has been made out or proved on the balance of probabilities;

it is open to the Tribunal to find that there is a real and appreciable risk to children even though the Tribunal may not be satisfied that an allegation of abuse has been made out, on the basis that the circumstances surrounding the alleged conduct mean that there is a risk to children;

there is no requirement that the respondent prove the truth of an allegation in order for the Tribunal to be satisfied there exists a real and appreciable risk to children; and

there may be circumstances surrounding an allegation which would persuade the Tribunal that there exists a real and appreciable risk to children.

Mandatory criteria for determining an application

In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below:

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.

…

In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act:

…
(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.

…

First limb of the two-part test under s 30(1A)(a) ‑ the “reasonable person” test

The first limb of the two-part test is known as the “reasonable person” test. It requires the application of an objective standard based upon the views of the “reasonable person”. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY’s case at [26].

Second limb of the two-part test under s 30(1)(b) ‑ the “public interest” test

The second limb of the two-part test is referred to as the “public interest” test. It must be considered in the context of s 4 of the Act, namely that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act: CYY’s case at [74].
When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; CYY’s case at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202], and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY’s case at [75].
If the Tribunal is not satisfied that an applicant has met either of the first and second limbs of the two-part test, then it is precluded from making an order enabling the applicant to work with children.

Possible outcomes of an administrative review

Section 63(3) of the ADR Act sets out the range of possible outcomes of an administrative review by this Tribunal. In determining an application, 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.

Additionally, by operation of s 65(1) of the ADR Act, at any stage of proceedings to determine the application the Tribunal may remit the decision to the administrator who made it, for reconsideration.

Examination of events as disclosed in the evidence before the Tribunal

Inconsistencies in the material and evidence

The material and evidence before us disclosed a number of inconsistencies between the complainant’s allegations and EHM’s account of events. This includes what occurred in the car when they were alone and while watching the movie when others were present. We note that no charges were made concerning any alleged conduct in the car, however it is relevant to consider all the circumstances surrounding the conduct which resulted in the charges as alleged when assessing whether there is a risk to the safety of children (in line with V’s case as cited in BKE’s case).
With respect to the accounts of what occurred while watching the movie on the second occasion, the differences are stark. A fleeting and accidental breast touch which was intended to be a comforting pat on the shoulder (as asserted by EHM), sits on one side of the argument. A deliberate and prolonged touching or “groping” of the complainant’s breast under her clothing and underwear, under cover of a blanket, and for the duration of one hour (as alleged by the complainant), sits on the other side of the argument.
There are also inconsistencies between, on one hand, the Pastor’s statement, the referring GP’s notes, and Ms Baalbergen’s counselling session notes and, on the other hand, EHM’s accounts of various matters.
Because of the inconsistencies, the Tribunal’s task in fact-finding was difficult. That task was made even more difficult in circumstances where the complainant, the applicant’s wife and his daughter were not called to give their account of events and have their evidence tested. The complainant’s parents were not called to give their account of the meeting with EHM and be cross-examined on their evidence. The GP who referred the applicant to Ms Baalbergen was not called to give evidence in relation to his referral notes and be cross-examined on them.
The Tribunal had the benefit of written submissions for the respondent that extensively address a broad sequence of events. Our focus, in terms of the evidentiary material before us, is on the period from when the arrangements were first made between the respective mothers of the complainant and EHM’s daughter, and the day when EHM consulted with the Pastor and his referring GP.

Sequence of relevant events

By way of background context, EHM and his family knew the complainant and her family, having met through a local church about five years before the alleged offences. EHM had also taught the complainant a few years earlier and was aware that she had experienced bullying at her previous school and suffered psychological stress from that bullying. After a Sunday church service, the complainant’s mother confided in EHM’s wife about the complainant’s recent admission for mental health issues. As a consequence, it was arranged between the families that the complainant would “hang out” with EHM’s older daughter the following Friday, and watch a movie at EHM’s house.
The following table sets out the sequence of events over 11 consecutive days but without reference to specific calendar dates in light of the prohibition order.

Day

Event

Sunday,
January 2018

EHM’s wife and the complainant’s mother speak at church about the complainant’s recent stay in a mental illness unit and arrange for the complainant to ‘hang out’ with EHM’s daughter at EHM’s house and watch a movie on the following Friday.

Friday,
following the previous Sunday

EHM and his daughter drive the complainant to their home and watch a movie. The complainant discloses to both that she has recently been in a psychiatric unit.

(Note: The events on this day were not the subject of any criminal charges against EHM)

Saturday,
next day

EHM drives alone with the complainant from the martial arts centre to collect EHM’s daughter. During the journey the complainant makes further disclosures to EHM when they are alone in the car. After collecting EHM’s daughter, all three travel to EHM’s home where they watch a sequel to the movie.

(Note: The events on this day were the subject of the criminal charges against EHM)

Sunday,
next day

Asserted exchange of text messages between EHM’s daughter and the complainant who requests EHM’s phone number.

Monday,
next day

Asserted further exchange of text messages between EHM’s daughter and the complainant.

Tuesday,
next day

EHM meeting with the complainant’s parents.

Wednesday,
next day

1. EHM meeting with the Pastor.

2. EHM consultation with his GP requesting referral to a psychologist.

Friday – First day of watching a movie (not the subject of criminal charges)

Facts that appear to not be in dispute

The Tribunal notes that the allegations against the applicant concerning the events on the first day that the complainant visited EHM’s home were not the subject of criminal charges. We note, also, that EHM’s version of events cannot be reconciled with the complainant’s allegations.
EHM and his older daughter drove to the complainant’s house to collect her and then take her to EHM’s home to watch a movie together (along with EHM’s wife).
Either while being driven to EHM’s house or on the way back to her own home after the movie, the complainant disclosed she had recently been in a mental health unit.
After the movie, the complainant asked her mother if she could go again (the next day) to watch a sequel to the movie. It was arranged that the complainant’s mother would drop her daughter to the martial arts centre the following morning for a class and it appears to have been presumed that EHM would then drive with the complainant to collect his own daughter from an event and they would then take the complainant home to watch the sequel to the movie.

The complainant’s version of events

The complainant alleged that it was on the journey back to her home after the movie that she told EHM and his daughter that she had spent a week in a psychiatric unit. She alleged that EHM, who was in the front passenger seat while his daughter was driving the vehicle, reached around into the back seat and was “playing” with the complainant’s foot, and “rubbing” her foot and playing with her hand.
The complainant also alleged that while they were watching the movie, EHM had been playing with her elbow, “rubbing” her arm and “squeezing” her elbow.

The applicant’s version of events

EHM’s evidence is that it was during the initial drive to his home (with his daughter driving) that the complainant talked about having spent time in the mental health unit because of her anxiety, PTSD and violent dreams she had been having. His evidence is that both he and his daughter expressed sympathy to the complainant. EHM denies touching the complainant in the car.
EHM’s evidence is that during the movie he sat on a section of an L-shaped lounge with a blanket under his head for a pillow, with the complainant on his immediate right. EHM’s daughter then sat to the right of the complainant. EHM’s wife sat on a separate chair at an acute angle to the lounge. EHM’s evidence is that he asked the complainant if she was okay a couple of times during the movie and that she answered that she was. EHM denies touching any part of the complainant’s body during the movie.

Saturday – Allegations against EHM while in the car and watching the movie sequel

Facts that appear to not be in dispute

The following day, as arranged, the complainant’s mother dropped her daughter at the martial arts centre for her class. After EHM had finished his own class, he drove with the complainant alone, to where he was to collect his older daughter. On the way, the complainant sat in the front passenger seat. At one point during the journey, she became emotional and EHM pulled the car over to talk with her. They then proceeded to the location where he was to collect his older daughter. After that had occurred, the complainant sat again in the front passenger seat, and EHM drove both girls to his home.

The complainant’s version of events

According to the complainant, when she had been emotional, EHM pulled the car over and comforted her in a way that made her feel “uncomfortable and confused”. Her account is that EHM rubbed her thigh, had his arm around her, was playing with her neck and held her hand and was playing with her hand.
She recalled that while watching the movie EHM occupied the same position as the day before and had a blanket over his arm. EHM’s daughter and wife were in the same positions as they had been in the day before. She alleged that EHM put his right hand up her shirt and “squeezed” and “grabbed” her left breast and “squeezed” her nipple. She alleged that EHM had placed his hand on her breast twice over her bra (removing it and playing with her hand in between the touches) and then placed his hand under her bra. The touching was alleged to have continued for an hour and in the presence of EHM’s daughter and wife.
Those allegations were the subject of both the aggravated indecent assault charge and the indecent assault charge.
The complainant said that she went upstairs to the bathroom twice to text her mother as she didn’t “feel very comfortable” and told her mother to pick her up.
After being collected from EHM’s home, the complainant disclosed to her mother that EHM had “sexually abused” her. The complainant’s parents took her to the local police station that day where she gave an electronically recorded interview.

The applicant’s version of events

EHM’s version of events as set out in his affidavit evidence was that on the way to the location to pick up his older daughter, the complainant became really upset and told him, in words to the effect that:

“I’ve had some really terrible and violent dreams lately. The dreams I have are so realistic and I wake up crying and sobbing and I don’t know whether they are real or not. My anxiety has been so bad. I had to go into [psychiatric unit]. There was a girl I had met at [psychiatric unit] that I thought was manipulating me. They made me eat 6 times a day while I was there. I was trapped in there for 2 weeks with kids I knew I had to be wary of because they were in a psychological unit. I haven’t seen any of my friends or really been out of my house or even my room for the whole school holidays. I wake up crying a lot”.

EHM said that he was “almost close to tears” listening to the complainant because his own daughter is close to the same age. His version of events is that he pulled over so he could listen to the complainant and told her the dreams were not real and that she would be okay. The complainant continued to talk about not wanting to leave her room and her anxiety about having been bullied at her previous school. His written evidence was that he “patted her on the shoulder and leg on one occasion each to console her”. He said he was parked for about five minutes and then he drove to where he was to collect his daughter.
After picking up his daughter, EHM drove back to his house, with the complainant still in the front passenger seat and his daughter in the back (a fact that is not in dispute).
EHM’s account of what happened while watching the movie was that everyone sat in the same position they had occupied the day before. The lighting was the same as the day before in that the room was not dark like a movie theatre although the curtains were closed, and everyone could see one another. The only difference was that it was a cooler day and at one point the complainant said that she was cold so EHM’s daughter gave her a black hoodie to put on.
Around 10-15 minutes later, the complainant was still cold so EHM stood up and scrunched a bit of the blanket up so he could continue to use it as a pillow and threw a section of the blanket over the complainant. He then sat back down again. According to his evidence, part of the left side of the complainant’s body was covered by the blanket but none of the blanket was covering him.
His version is that he was still concerned about her after what she had said to him in the car. He said that he was feeling “highly distressed” about what she had told him. He patted her on the hand outside the blanket and asked whether she was okay and she responded that she was.
EHM’s affidavit evidence about what happened next was:

“Sometime after this, I wanted to make sure she was okay I put my right hand up to go towards her shoulder to pat it and said “are you okay”. My elbow was at this point resting on top of the couch and I had swivelled my forearm and raised my hand to pat her on the shoulder. The back of my hand then touched her and I realised it had touched her left breast. I immediately took it off. I was concerned about this and worried about what she would think.”

Around 10-15 minutes later, the complainant went upstairs to the bathroom. The movie was paused. When she returned, she resumed her position on the lounge.
Sometime after that, the complainant asked if she could get her bag from EHM’s car. EHM left the house and returned with the bag. Subsequent to that, the complainant got up and went into the kitchen. Her mother arrived to collect her about 10-15 minutes later.
EHM’s affidavit evidence is that after the complainant and her mother left, he and his wife prepared for guests who were coming for dinner. His evidence was that after the guests had left he told his wife at around 9pm that he had inadvertently touched the complainant’s breast while trying to comfort her. He said that he explained what the complainant had disclosed to him and that he was concerned for her. His evidence was that his wife was understanding of the situation and said “not to worry as these things happen”.
We note that no statement from EHM’s wife corroborating the applicant’s evidence on this point was provided to the Tribunal.

Applicant’s evidence during the criminal trial

Under cross-examination in the criminal trial, EHM said that the blanket was not covering his right arm. He denied that he had moved his arm underneath the blanket and touched the complainant on the left-hand side of her body. He denied that he had put his right hand underneath the complainant’s clothing. He denied that he put his hand underneath her bra and denied that he squeezed her nipple. He also denied that any activity of that nature continued for some time. His evidence was:

“I didn’t put any part of my body, my hand or anything inside any of her clothing at any stage.”

EHM’s description of what occurred was that he had “accidentally touched [the complainant’s] breast”. His words were:

“I’d gone to pat her on the shoulder and because of the way I was lying my hand ended up patting her on the breast”.

Under cross-examination in the criminal trial, the applicant denied that he had made an arrangement to speak with the complainant’s mother out of concern for himself about the breast touch.

Applicant’s evidence during the Tribunal hearing

Under cross-examination in the Tribunal, EHM’s evidence about how he comforted the complainant in the car was consistent with his evidence in the criminal trial and his affidavit.
His evidence under cross-examination that he told his wife that Saturday evening about what the complainant had said to him in the car and about his accidental touch of her breast was broadly consistent with his written evidence. In answer to a question whether he was concerned, he confirmed that he was, but he said that he was concerned about what might happen about the accidental touch.
In answer to a question whether it concerned him that he had comforted the complainant in the car, EHM said that with hindsight it had not been a great decision. He continued to respond by saying that his concern was the accidental breast touch and also the complainant’s mental state. When further asked about the wisdom of being alone with the complainant and whether he had discussed that with his wife, EHM said that he couldn’t recall discussing that aspect with his wife. He then said that, in hindsight, being alone with a child is not something he would do again.
When asked whether the complainant had ever disclosed to him that she had been sexually abused, the applicant said he wasn’t sure how he knew that she had been sexually abused, but he had a recollection it concerned another teacher.
When asked whether he had concerns, because of the previous sexual assault, that an accidental touch of her breast would trigger distress in the complainant, he said that the concern about the touch was that “they would know” (being a reference to the complainant’s parents) and that, in going to them, in his mind was a strong concern about the child and also concern for himself. He said he was unsure about how the complainant might discuss it or refer to it. He said that, in light of that, he was terrified because although her parents had been friends it was a highly emotional situation. He said that he was there (referring to the meeting with the complainant’s parents) to say “your daughter said these things” and described the conversation as strange and intense.
In response to a question whether, after the complainant had disclosed things to him in the car, he should bring them to her parents’ attention, the applicant said that the parents already knew, and that his daughter had invited the complainant over as a result of the complainant expressing distress over her recent circumstances.
When asked whether the catalyst for the discussion with the complainant’s parents was the breast touch, the applicant said it had been a “significant event” and he wasn’t sure if the complainant had noticed it or how she had interpreted it. He also said that it was not common for the things that the complainant had revealed to him and his family to be disclosed, and that in 20 years of teaching he had only had one other previous experience that was similar.
We make an observation that, if the touch was unintended, and the applicant’s hand mistakenly landed on the complainant’s breast instead of her shoulder (possibly easily done if he was lying in a semi-supine position), it is something the applicant as the father of a teenage girl almost the same age, could have immediately and transparently apologised for, as an accidental touch.

Sunday – Complainant’s text messages to EHM’s daughter

The applicant gave evidence during the criminal trial that the following day (a Sunday) his older daughter told him that the complainant had asked for his mobile number. It was asserted that the complainant had thanked EHM’s daughter for having her over and wanted EHM’s number for her mother for the next time that she and EHM’s daughter might spend more time together.

Monday – Complainant’s further text messages to EHM’s daughter

The applicant also gave evidence during the trial that his daughter had told him that she received an SMS message from the complainant asking when she could speak with EHM.
When asked about the gist of the SMS messages between EHM’s daughter and the complainant, he answered under cross-examination before the Tribunal that the complainant wanted his phone number for the next time the complainant and his daughter may ‘hang out’. He commented that this appeared to be strange since they had reported the matter to police. At the time of the asserted SMS messages, EHM did not appear to know that the complainant had been to the police.
When asked whether, at the time when he spoke with the complainant’s parents, he was aware of the SMS messages, he answered that he thought he was aware but was uncertain about their content.
The workplace investigation report looked closely at the text messages aspect. The phone records for the complainant’s phone were not accessible and, as a result, were not provided to corroborate any assertion of the number or timing of the complainant’s messages to EHM’s daughter. The applicant’s legal team provided phone records indicating the number and timing of text messages however digital/photographic records evidencing the precise content of any messages were not available to the Tribunal. Our view is that the text messages lend little evidence to assist the Tribunal in assessing whether EHM poses a risk to the safety of children.

Tuesday – EHM meeting with the complainant’s parents

The applicant’s version of events

EHM’s written evidence was that over the next couple of days he reflected on what the complainant had said and thought he needed to tell her parents about it. He was also concerned about “accidentally touching her breast and wanted to apologise for that”.
EHM’s statement during the criminal trial was that he wanted to speak to the complainant’s parents because he was very concerned about the things that the complainant had said about her psychological condition and that he wanted to let them know about the text messages that she had sent to his own daughter. When asked whether there was anything else, he said that he was “concerned and uneasy about [my] inadvertent breast touch”.
At the same time, he decided to talk to the Pastor of the church they attended, to “get his guidance”, and said that he contacted the Pastor’s office to arrange to meet with him the following day.
EHM’s evidence is that he called the complainant’s home phone late on Tuesday morning and spoke with the complainant’s mother. He asked whether he could talk with her, to which she replied “Yes, I think you should.” He said he would be there in about 15 minutes.
EHM’s evidence is that upon arrival, the complainant’s mother looked “a little bit upset” and he told her “about some of the things that [the complainant] had told us about her psychological condition, about PTSD, anxiety, dreams”. In his affidavit, EHM said that the complainant’s mother said:

“You are someone she trusted and now she is so confused. She is back 6 months in her treatment, she has to sleep in my room and I’m scared she will kill herself and she doesn’t want to leave the house.”

Around two minutes later, the complainant’s father arrived and started saying something along the lines of “This is just not normal”. EHM’s evidence is that the complainant’s father said that EHM was someone that his daughter had trusted and that she was very confused and that EHM “needed to get help”. EHM’s evidence in the criminal trial was that he really did not know what the complainant’s father was talking about. His written evidence was:

“At this point I wasn’t sure what he was referring to. He was speaking in a calm manner, I just didn’t understand why he had said that. I thought it might be a reference to me touching [the complainant’s] breast.”

EHM’s written evidence was that the complainant’s mother asked whether his wife knew what was going on, to which he replied “I don’t know”. This response is inconsistent with his evidence that he had told his wife after dinner on the evening after the touching, however the exchange with the parents was fraught with tension and emotion and it is difficult to understand whether the respective parties were ‘on the same page’.
In his affidavit, EHM said:

“I was not sure what [the complainant’s mother] was referring to here. I thought it might have related to me accidentally touching [the complainant’s] breast.”

EHM’s affidavit evidence was that the complainant’s mother then said words to the effect of:

“If she doesn’t know, that’s just nuts. She must suspect something. She’s a wise woman, she has talked through things with me a few times. If [the applicant’s daughter] doesn’t think something’s happening, then that’s crazy too. You need to tell [your wife].”

EHM then said in his affidavit that the complainant’s father again said “you need to get help”.
In his affidavit EHM said, for the third time, that he was not sure what either of the complainant’s parents were talking about:

“I was not sure what either of them were talking about. I thought that [the complainant’s mother’s] language seemed quite strong given what had happened. I had said comforting things to [the complainant] and occasionally patted her on the shoulder in sympathy. I thought they must be upset because of the accidental touch to her breast.”

EHM’s affidavit evidence is that he then mentioned a mutual acquaintance of his and the complainant’s parents, a person EHM often talked with about “hard stuff like depression”. His evidence in the criminal trial was that the mutual acquaintance was a person he:

“often talk[ed] to about these things, in my mind these things were the three things that I’d actually gone to speak with them about, the inadvertent breast touch, the text messages and the child’s disclosures of her psychological condition.”

The applicant’s evidence was that he asked if there was anything he could do to be helpful, to which the complainant’s parents responded “No, we need to do that.” EHM’s written evidence was that there was a pause in the conversation and he got into his car and left. In his affidavit, EHM said:

“I was anxious at this point, because the conversation had been a bit odd.”

Applicant’s evidence during the criminal trial

Under cross-examination in the criminal trial, EHM denied that he made an arrangement to speak with the complainant’s mother out of concern for himself about what had occurred. EHM also denied saying “I’m an idiot. I don’t know what I was thinking. I genuinely care about [the complainant] and I don’t know what I was thinking.”
He also denied that the only reason he had started such a conversation as that put to him (above) was that his main concern was the way in which his actions would be interpreted.
In explaining his apology to the complainant’s parents, EHM said:

“I did apologise however my apology was not anything to do with the things that you are suggesting happened, my apology is in relation to my accidental touching of her breast as I stated earlier and also in relation to just feeling that the things that – the conversation of her revealing these things to me was probably not something that I was comfortable with someone else’s child revealing to me.”

Under cross-examination, EHM said that he answered “no” to the complainant’s father’s question about whether EHM’s wife knew what was going on because he “really was unsure of what he was referring to”. Further, in response to the comment made about EHM’s wife being a very wise woman, EHM’s response was that he “didn’t know what it was that she was referring to”. EHM acknowledged that, at the time, he made no attempt to clarify what he didn’t understand. He agreed that it would have been logical to clarify however his evidence was that the discussion took place in the context of an “emotional conversation” and not a “logical” one. His evidence was that he was:

“talking about a child who was extremely distressed, I was distressed about telling the parents about what their child had revealed to me…”

In response to a question that he didn’t respond in a logical way because he knew exactly what the complainant’s parents were talking about, EHM said:

“I didn’t respond in what now seems a logical way because it wasn’t a logical conversation, it was a conversation talking about a child’s emotions, I was feeling sad about the thing, it’s the way the conversation went.”

The applicant did not agree with the proposition that the conversation ended with his agreeing to go home and speak to his wife about what had happened. EHM’s evidence was also that he did not recall asking whether the complainant’s parents would like his wife to ring them after he had discussed things with her.
In the trial hearing EHM said that the complainant’s parents were “generally encouraging” of him talking to someone else. In response to the question “About what?” the applicant answered:

“About what I thought about the things that I’d gone there to discuss.”

In the Tribunal hearing, EHM was referred to the evidence he gave in the criminal trial, that he had gone to seen the child’s parents with the intention of discussing three things, namely the inadvertent breast touch, the text messages and the child’s disclosure of her psychological condition. He conceded under cross-examination that he did not address the breast touch or the asserted text messages with the parents, despite asserting they were the things he had wanted to discuss.

EHM was referred to the explanation he gave under cross-examination in the criminal trial about having apologised to the complainant’s parents. Even though the breast touch had not been discussed, EHM asserted in the criminal trial that his apology was given in relation to his accidental touching of the complainant’s breast, and his concern about the things she had revealed to him. When asked in the Tribunal whether he had clarified what the parents were referring to from their perspective, his answer was that he was concerned how the breast touch would be reported and to some degree he had explained the things told to him by the complainant were very distressing.
The Tribunal accepts that the conversation with the child’s parents appears to have been mismatched. Nonetheless, we make an observation that the number of times that EHM said in his affidavit that he didn’t understand what either of the parents were referring to (but he thought it might have been the breast touch) appears to be avoidant and possibly disingenuous. At the time of the conversation, the complainant had already given an interview to Police, supported by her parents. EHM was not aware of this. It is highly likely that, whilst any articulation of the breast touch appears to have been avoided in the conversation, this was the reason why the exchange between EHM and the complainant’s parents had been so highly charged and emotional.

Wednesday – EHM meeting with the Pastor

Applicant’s account of the meeting

The applicant met with the Pastor, as arranged, the following day.
EHM said in the criminal trial that the reason why he went to see the Pastor was:

“I wanted to see him because I was uncomfortable about the things, the events that had happened with [the complainant], the things she disclosed to me, my accidental breast touch and so you know I want to be open and be transparent…
…[the Pastor] was a relevant person because the [complainant’s] family went to the same church that we went to. And I was, suppose for me I was speaking to him partly to think about whether any other course of action needed to be taken in relation to the things that [the complainant] had said to me, and partly just of pastoral care really…”

The applicant gave evidence in the trial that he said to the Pastor:

“…so I said to him I was uncomfortable about some things that happened with [the complainant] while she was at our house on the last weekend, and that she had revealed to me a lot of distressing and very personal information about her psychological state with her, again, PTSD, anxiety, and these dreams that she – she couldn’t tell if they were real or not, that were extremely violent, that she often woke up in tears.”

The applicant’s affidavit evidence was that he told the Pastor he was concerned “about some stuff that happened while [the complainant] was at our house on the weekend and messages she has been sending since.” The Tribunal makes the observation that this must be a reference to the breast touch since the complainant’s disclosure of her emotional/psychological issues took place in EHM’s car. His written account of his explanation to the Pastor of the asserted inadvertent breast touch was:

“While we were watching the movie, [the complainant] sat next to me and [my daughter]. She was in between us and I patted her on the hand asked her ‘are you okay’ because of all the terrible stuff she told me. I was pretty upset by it. At one point I tried to do the same thing without really thinking and went to pat her shoulder but because of where I was half lying and half sitting, my hand landed on her breast.”

EHM said in his affidavit that the Pastor asked whether it had been accidental (a matter that is directly contradicted by the Pastor’s written statement and his evidence given before the Tribunal) and EHM said:

“Yes. It was a touch. As soon as I realised it was her boob, I took my hand off, like 2 seconds, something like that. I also asked if she was okay just like I had before. I was just concerned about all the stuff she told me.”

EHM’s affidavit evidence was that the Pastor said something about being a mandatory reporter and EHM expressed concern about “where things might go”.
The applicant’s evidence is that he told the Pastor he felt uncomfortable about the complainant telling him things that were a “bit too personal”.
EHM said that he gave the SMS messages between his daughter and the complainant to the Pastor, saying they made EHM feel “uneasy”. He asked the Pastor to pass them on to the complainant’s parents.
During the trial the applicant denied holding the complainant’s hand during the course of the movie and denied that he had told the Pastor that his hand was on the complainant’s breast and that he couldn’t explain why.

Statement by the Pastor

According to the Pastor’s statement, his meeting with the applicant lasted about an hour during which EHM explained that the complainant had told him about her mental health concerns and that he had felt empathy for her.
The Pastor stated that EHM had disclosed the following:

while driving with the complainant in his car, he had pulled over to listen to her and held hands with her;

that he had watched a movie with the complainant and his daughter and the Pastor recalled EHM used the following words:

“Then my hand was on her boob.
I can’t explain why, I’m not sure.”

The Pastor also recalled EHM saying words to the effect of:

“I’m not even attracted to her.”

According to the Pastor’s statement, EHM said at various times during their conversation “I think I’m safe to work with children”. We have not had regard to the Pastor’s interpretation of what may have been meant by this statement.
EHM was described by the Pastor to be “visibly distraught”, “ashen-faced” and appeared to be “completely devastated”.
The Pastor’s statement was that he advised EHM that he would need to make a mandatory report, to take it further and that EHM responded “Yes. I understand that.” The Pastor’s statement contains the following paragraph:

“[The applicant] did not say anything to me, even after I mentioned mandatory reporting, to clarify that his touching of [the complainant’s] breast was accidental. I did not ask [the applicant] whether his touching of [the complainant’s] breast was accidental or intentional because it seemed obvious from his words and overall presentation that he was telling me about something he had done intentionally, but that with hindsight he was shocked at what he had done.”

The Pastor stated that he did not take notes while speaking with EHM but had made a handwritten note after the meeting which is annexed to his statement. That annexed document appears to note sequentially the Pastor’s meeting with EHM, then a meeting with the complainant’s parents and then a phone call with EHM who asked the Pastor to let the complainant’s parents know that their daughter had been texting EHM’s daughter requesting contact with EHM.
The Pastor’s statement is that later in the day he contacted the mandatory reporting hotline while referring to the notes he had made of his meeting, before meeting with the complainant’s parents.
Also annexed to the Pastor’s statement is a copy of a “Safe Ministry Incident Report” made on 30 January 2018. The Pastor understands that this type of report is made as an internal record and does not go outside the church.
The Pastor’s statement includes a note that the applicant did not show him any of the texts between his daughter and the complainant, which directly contradicts EHM’s evidence. However, the Pastor informed the complainant’s father that the complainant had been texting EHM’s daughter.
Under cross-examination in the Tribunal hearing, EHM’s evidence was initially that he was not highly confident that he said to the Pastor “I’m not even attracted to her”, but he then asserted that he had not said those words to the Pastor. We regard this as a somewhat inconsistent response and note that the referring GP’s notes corroborate the Pastor’s assertion. However, in light of Ms Lucas’ opinion that EHM did not present as a person who endorsed hebephilia, we have not allocated any particular weight to this particular aspect.
After careful examination, we are of the view that the Pastor’s written statement is to be approached with some caution for the following reasons:

there was no contemporaneous note of his call to the mandatory reporting hotline, a matter of some seriousness and deserving of a note;

the apparent inconsistency between paragraph 21 (speaking with two other Safe Ministry Supervisors) and paragraph 24 (not wanting to call the mandatory reporting hotline from his office because he wanted additional privacy and did not want to be overheard);

his Safe Ministry Incident Report was made some 13 days after his meeting with EHM;

in the Safe Ministry Incident Report, with respect to the heading “Nature of alleged abuse”, the boxes for indicating whether the alleged abuse was “physical” or “sexual” were not ticked.

However, the Pastor’s oral evidence before the Tribunal was clear and unequivocal. He said it was very clear to him that the breast touch had not been accidental but an intentional matter, and that EHM was ashen-faced and distraught about the potential impact upon his family and himself. The Pastor’s evidence was that EHM was clearly describing wrongdoing and was concerned about the consequences. Under cross-examination, the Pastor said that while he had not ticked the box in the Safe Ministry Incident Report, upon reflection he was thinking that the nature of the abuse was “physical” and “sexual”.
The Tribunal has read the note made by the Deputy Principal of the School concerning a meeting attended by the Pastor and EHM. The note records that the Pastor made a comment that had it not been for EHM’s state of mental health there would not be anything that would prevent him from returning to his teaching role. Under cross-examination in the Tribunal, the Pastor emphatically denied that he had made such a comment. The note also records that the Pastor believed the matter to be of a nature that could have been sorted out between the two families and that EHM had apologised to the complainant’s parents, but that with the AVO in place a pastoral resolution would be difficult. The note is to be approached with some caution as it is not a contemporaneous record, having been written some 14 months after the meeting.

Wednesday – EHM consultation with GP

On the same that he saw the Pastor, the applicant consulted with his GP, seeking a referral to a psychologist. The referring GP’s notes recorded that EHM was taking Zoloft and diagnosed him with “Depression. Remorse.” The GP’s referral letter included the following information:

“Presenting problem
Would like a referral to a psychologist.
He has confirmed a grave error.
He is a principal support person to one of his daughter’s school friends, who has had mental health issues.
He often has the role of listening to her troubles.
Recently he was taking his daughter to the cinema and was asked by the friend’s parents to take her as well.
In the course of the day he gave the girl a hug because of their close relationship, but unaccountably and impulsively put his hand on her breast.
He is disgusted with what he has done. He cannot understand why he did it, and is sure that he does not find her sexually attractive.
He feels that he must be held accountable.
He has confessed to his wife, his pastor and the girl’s parents.
The girl’s parents were upset, but forgiving and asked him to ensure that he gets help.
His pastor is a mandatory reporter and intends to carry out his duty.
The girl keeps trying to contact [the applicant] who does not respond.
[The applicant] feels that his depression is going to get worse, and expects that this will be the end of his career as a teacher.
This would be a major financial problem for his family.
Some suicidal thoughts, but he feels that he would not act on these.
Examination:
Very distressed. Morose.
Feeling very guilty.
Perplexed about why he would do such a thing.
Opinion: Remorse and perplexity in a man with a history of depression, and with no prior history of similar behaviour.
Plan: Referral to a psychologist.
He should let the girl’s parents know that she has been trying to contact him.
Invited to talk further while waiting to see a psychologist.”

The referring GP’s notes contain what appear to be two factually incorrect references, namely the note about taking his daughter to “the cinema” as opposed to watching a movie in the applicant’s home environment, and the reference to EHM putting his hand on the complainant’s breast while hugging her. Setting aside those matters, there is some consistency in the notes recording the applicant as expressing a comment that he did not find the complainant sexually attractive, with the Pastor’s statement that EHM had said words to the effect of: “I’m not even attracted to her”.
Whilst the referring GP’s notes recorded that the Pastor was a mandatory reporter and intended to carry out his duty in that respect, it does not record any comment that EHM questioned whether he was “safe to work with kids”, as noted in the Pastor’s statement.
Under cross-examination before this Tribunal, in answer to a question whether he had told his GP that he had given the complainant a hug and put his hand on her breast, the applicant said it was the referring GP’s “interpretation”. He said he didn’t believe he said those words to the GP.
In answer to a question whether he had expressed disgust, the applicant said that he was “extremely upset at touching her breast… still am... without intent.” He said that when he saw his GP he was extremely stressed, as he could see where the claims could lead to. In answer to a question about the GP’s note that the applicant did not find the complainant attractive, EHM said that he didn’t believe he had raised it. When asked about the note “Perplexed about why he would do such a thing”, the applicant said “It’s [the GP’s] report”. As to the question of “why”, in answer to a question whether he addressed with the GP why he would do such a thing, the applicant believed he said that it was accidental, in terms of how it came to happen.
The applicant was asked about how he felt about being the “principal support person” for the complainant, as disclosed in the GP’s notes. EHM said that he was unhappy about it, that it had been a decision made without his knowledge and he couldn’t exactly recall when he became aware but that it was “after the events”. He expressed his concern that it affects his reputation as a teacher.
We find this comment to be a matter of concern, since it suggests that the applicant’s focus was upon himself, with less regard for what the complainant may have been experiencing.
Otherwise, it is not possible to know whether some of the comments appearing in the referral letter were statements made by the applicant or summary notes of the doctor’s impression or interpretation of what the applicant said. For instance, the comments “He has committed a grave error” and “He is disgusted with what he has done” could either have come directly from the applicant or be the doctor’s own assessment of the situation.

The applicant’s psychological counselling sessions

The applicant’s treating GP referred him for counselling with Ms Baalbergen whose clinical notes were produced under summons (Exhibit R2). The notes of her first counselling session with EHM (Exhibit R2) contain the words “don’t know how I ended up doing what I did”, which appears to be a direct quote from the applicant and suggests that the breast touch was not accidental.
The applicant was cross-examined in the Tribunal hearing about whether he recalled saying those words in discussion with Ms Baalbergen. The applicant’s response was not very clear. When asked whether he thought to say sorry after touching the complainant’s breast, the applicant answered that he didn’t think so.
Under cross-examination, Ms Baalbergen confirmed that the words “don’t know how I ended up doing what I did” were what the applicant had said to her. She said she thought that it related to the allegations and the AVO, but it was not explicit.
In the same first counselling session, Ms Baalbergen had discussed whether the applicant has too much emotional care for kids and her notes record that the applicant took more sick days than normal as the intensity had worn him out in the last (i.e. previous) year. In answer to a question whether he has too much emotional care for children, the applicant’s response tended to avoid any self-revelation on that point. He replied by distinguishing between teaching primary and secondary students. He said that teachers see primary school students all day every day so the level of care is as expected by a school.
Ms Baalbergen was asked how the applicant’s statement that the breast touch was inadvertent could be reconciled with him being perplexed and wondering how he could have done such a thing. She responded that she was not aware of all the material, but that “if something happened accidentally” it can still be “consistent”. The Tribunal understood that Ms Baalbergen was referring to the two concepts being reconciled, namely the records that the applicant was perplexed about touching the complainant’s breast and his evidence that it was inadvertent.

Local Court judgment

The Local Court Magistrate in the criminal trial expressed doubt about the complainant’s evidence. In respect of the incident alleged to have occurred on the lounge the Magistrate noted:

“…there are troubling aspects of the complainant’s evidence which have been touched upon in submissions by [Counsel for the applicant]. But when I heard the evidence in the trial, I was perplexed as to, firstly, how even someone with long arms could have done what is alleged to have been done in the manner in which he did it. Secondly, that the touching was for nearly an hour. Thirdly, the extent of the touching was something that could very easily be observed in the lighting conditions there.
…
Next is the difficulty I had with the capacity of [the applicant’s wife] to observe. She had a good line of sight to what was happening, and she did not see anything, let alone as alleged by the complainant. Next, [the applicant’s daughter] is sitting right next to the complainant, not touching, but very close to; and she did not see anything as alleged by the complainant.
I accept [Counsel for the applicant’s] submission that an accidental touching – a fleeting touching – could have occurred and not been observed by other persons present in the room when the alleged incident took place. Those matters have caused me to form a view that the evidence of the complainant is highly implausible.”

In respect of the allegation of events in the car (not the subject of any charge against the applicant), the Magistrate noted:

“Next, I had grave reservations about the allegations of uncharged events occurring in the car, where it seemed to me that in the absence of [the applicant] being demonstrably a contortionist, he simply could not have done what he is alleged to have done without [the applicant’s daughter] seeing it.”

Workplace investigation

The workplace investigation undertaken on behalf of the School was finalised in late 2019. The report made findings that on the balance of probabilities the applicant had engaged in unwarranted and inappropriate touching of an overtly sexualised nature towards the complainant in his car and touched the complainant on the couch at his house.
The workplace investigator unfortunately did not interview the complainant (although we acknowledge there were understandable reasons for this) and made findings on the basis of the application of a lower standard of proof, namely, on the balance of probabilities.
While the complainant was not interviewed, her version of events was preferred over that of the applicant. The investigator interviewed the Pastor and found his evidence to be credible and significant for the purposes of the investigation.

The investigation was critical of the Magistrate’s findings with respect to the incident on the lounge on the basis that the Magistrate did not explore or note that the applicant is considered proficient in martial arts, previously a professional athlete and likely to be a person with considerable strength and flexibility. The investigator held the view that it is possible for a person to engage in undetected sexual offending in the presence of others, particularly noting the presence of the blanket covering part of the complainant’s body.
Due to the procedural flaws and evidentiary inconsistencies associated with the workplace investigation, this Tribunal does not regard the report and its findings as determinative of the assessment of risk. Nonetheless, the report provided some assistance to the Tribunal in the context of how it assessed the applicant’s conduct having regard to the expectations under the School’s Code of Conduct.

Independent expert’s psychological assessment

In connection with his assessment by an independent forensic psychologist (Ms Lucas), the applicant advised that he had inadvertently brushed the complainant’s breast when he was attempting to pat her on the shoulder to console her. Ms Lucas reported that EHM adamantly denied that he had breached a position of trust by doing so and said his action had been motivated by concern for the complainant who was suffering from emotional distress.
Ms Lucas’ report of 15 July 2020 found that the applicant had been diagnosed with a Depressive Disorder in the past and had been prescribed antidepressant medication for the last 14 years which had not been reviewed. At the time, the Depressive Disorder was described as having occurred following the applicant’s retirement from professional sport, with consequent symptomatology suggestive of an Adjustment Disorder with Depressed Mood.
The applicant completed a Personality Assessment Inventory (PAI), an objective test of personality and psychopathology. The results indicated that EHM’s PAI profile was entirely within normal limits, with no evidence of psychopathology. There were no significant problems in the areas of unusual thoughts or peculiar experiences, extreme moodiness or impulsivity, problematic behaviours used to manage anxiety, or substance abuse.
Ms Lucas noted in her report that EHM’s discussion of the circumstances surrounding the alleged offences was not marred by complainant-blaming or minimisation of the complainant’s position. He also did not diminish the importance of child protection concerns generally.
In circumstances where the applicant has no criminal history, Ms Lucas noted that providing a risk assessment was complicated. Ms Lucas identified various factors, including that there was no endorsement by the applicant of deviant sexual interests (i.e. hebephilia), no endorsement of attitudes condoning sexual misconduct or violence, no cognitions dismissive of individual rights or aberrant gender entitlement, and no deficits in his social skills or intimacy capacity or attachment problems.
Noting that a formal actuarial risk assessment of the applicant’s risk for sexual offending could not be conducted because he has no conviction for sexual offending, Ms Lucas used criterion taken from professional literature to form a structured clinical judgement. In her opinion:

“[The applicant] did not appear to have any of the factors typically associated, in the relevant professional literature, with an increased risk for sexual offending, including sexual offending against children.”

Under examination in the Tribunal, Ms Lucas said that she had gained the impression that the applicant took child protection issues seriously. She was of the view, from the way in which he discussed the issues with her, that he did not dismiss or blame the complainant and that he thought it was important for young people to be heard.

Consideration

There is a lot of evidence before this Tribunal. It includes the evidence and judgment in the criminal trial, the workplace investigation and its findings, the information put before the Children’s Guardian in considering EHM’s application for a WWCC clearance as contained in the s 58 bundle of documents (Exhibit R1), the information considered by DCJ (as contained in Exhibit R1), the expert opinion of Ms Lucas and the evidence and submissions put before us.
In determining the application, the Tribunal has considered the evidence under each of the mandatory criteria headings in s 30(1)(a)-(k) of the Act, as discussed below.

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: s 30(1)(a)

The applicant was charged in January 2018 with the indecent assault charge and the aggravated indecent assault charge under, respectively, ss 61M(2) and 61M(1) of the Crimes Act.
The applicant was also subject to an interim AVO served in January 2018.
The indecent assault was alleged to have occurred between 2pm and 5pm on a Saturday at EHM’s home. The aggravated indecent assault was, likewise, alleged to have occurred on the same date and the same time. The act of indecency was particularised as follows:

“…touched and squeezed her breast over an extended period of time in circumstances of aggravation, to wit, while the accused [the applicant] was in company of his wife and daughter.”

At the commencement of the proceedings in the Local Court, the aggravated indecent assault charge was withdrawn and dismissed.
In relation to the indecent assault charge, the applicant entered a plea of not guilty. After a three-day trial, the applicant was found not guilty.
Subsequently, the AVO was withdrawn and dismissed.
The applicant’s version of events and the complainant’s account of what occurred giving rise to the charges cannot be reconciled. It was submitted on behalf of the applicant that since the touching of the complainant’s breast was inadvertent, fleeting and without intent, lasting two seconds, the offence did not occur at all and therefore there is no offence to assess for risk.
The complainant’s version, that the “groping” of her breast took place over an hour in a covert manner beneath a blanket and in the presence of EHM’s wife and daughter, is far more serious, even though the respondent’s submission is that the alleged conduct is at the lower end of the scale. If the conduct as alleged by the complainant took place, it would appear to have been opportunistic. There is, however, no suggestion that it was premeditated. If the conduct as alleged took place, we accept the respondent’s submission that it would be considered to be brazen since it occurred in the presence of EHM’s wife and daughter.
The incident was a one-off occurrence, and there is no evidence that a similar incident has occurred in respect of the applicant. The Tribunal notes that the Magistrate in the criminal trial heard evidence from the complainant and each of her parents as well as the applicant’s wife and daughter. The Magistrate’s decision is of some assistance to the Tribunal; however the threshold of proof in the criminal trial required a higher standard to be met (beyond a reasonable doubt).

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

At the time that this matter was heard before this Tribunal, it had been three years and two months since the time of the alleged conduct giving rise to the charges.
Since the time of the charges for the offences, the criminal proceedings have been heard and the applicant acquitted of the indecent assault charge. The workplace investigation has taken place, with adverse findings for the applicant, resulting in the termination of his employment.
The applicant has not been charged or convicted of any offences, or had an AVO taken out, subsequent to the matters that are the subject of this current proceeding.
The applicant sought counselling with Ms Baalbergen, his treating psychologist. He engaged in 15 counselling sessions with Ms Baalbergen for the purpose of psychological assessment, treatment and support. Ms Baalbergen noted that the applicant had been significantly affected by the stressful experiences arising from the matters under review, but had been consistent in his presentation over the course of treatment. Ms Baalbergen expressed the opinion that the applicant is suitable for child-related employment.
Since the time of the alleged offences, the applicant has been undertaking tertiary study towards achieving a Bachelor of Sport and Exercise Science. He has undertaken some part-time work including as a courier.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

The applicant was 45 years of age at the time of the alleged conduct giving rise to the charges.

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: s 30(1)(d)

The complainant was 15 years of age at the time of the alleged conduct giving rise to the charges.
Not long before the alleged conduct, the complainant had been an inpatient at a mental health facility, having been diagnosed with PTSD and anxiety. She had experienced violent and disturbing dreams. She had also been seeing the School counsellor in over at least a two year period and had disclosed that she had been exposed to bullying in a previous school environment. She also disclosed having experienced “sexual assault” at some time prior to the conduct giving rise to the charges.
EHM has acknowledged he was well aware of the complainant’s intimate details and knew she was vulnerable. This included knowledge of her experience of having been bullied at a previous school and sexually abused. She suffered from anxiety and PTSD and had only very recently been admitted for treatment to a clinic for mental illness.
The complainant immediately disclosed the incident to her family and the Police and received support from both. She also expressed reservations about her own version of events and expressed concern for the impact of the allegations and charges on the applicant and his family. We note Ms Lucas’ opinion included a comment on the workplace investigation in which the complainant was not interviewed because she had already been through the rigours of cross-examination at the criminal trial and suffers from pre-morbid PTSD arising from peer bullying. Ms Lucas noted the following:

“A presentation of Post-Traumatic Stress Disorder often contains symptoms of alteration in emotional arousal and reactivity as well as negative alterations in cognition and mood. The potential contribution of these symptoms to the complainant’s experience, recall and later recount was not factored into the investigator’s report.”

Taking into account Ms Lucas’ comment about the contribution of PTSD to a person’s experience and recall, the Tribunal notes the information attached to a statutory declaration made by the applicant’s daughter in connection with the workplace investigation. The note attached to the declaration was prepared by a mutual friend of the applicant’s daughter and the complainant. It purports to record a conversation between the complainant and the mutual friend, in which the complainant doubted whether she could go through with “the court case”. When asked why, the complainant said something along the lines of “because I’m not really sure it happened. I was psychotic.”

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)

The age difference between the applicant and the complainant is 30 years.
The applicant had taught the complainant. The complainant was a family friend and a friend of the applicant’s older daughter. The complainant knew the applicant both as a result of her school environment and church involvement.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)

The applicant knew the complainant was a child. He had been her teacher a few years earlier and appears to have occasionally trained her in martial arts. Accordingly, he was well aware of her age as well as her vulnerabilities.

The person’s present age: s 30(1)(g)

The applicant is now 48 years of age.
It was submitted on behalf of the applicant that, noting the pensionable age of a person of his age, he has approximately 18-19 ‘working’ years of his life remaining.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

Prior to the alleged offences, the applicant had never been charged or convicted of any offence or had an AVO taken out against him.
With the exception of the conduct giving rise to the charges, the applicant has not otherwise been the subject of any formal complaints or charges in relation to children. Ms Lucas’ report noted that an informal complaint had been made several years earlier by a student alleging that the applicant had given the student an iPad which had accessed a pornography site whilst at school. She noted in her report that the applicant had told her the school investigated the matter and found nothing to support the allegations. Under cross-examination on this point, Ms Lucas recalled discussing with the applicant his role as a teacher and child protection generally, and said that he took child protection concerns seriously. There is one other complaint to Police, however it concerned an interaction with the complainant’s mother after the criminal trial. No charges were laid and no AVO was sought in relation to that matter.
The applicant has not been the subject of any investigations other than the workplace investigation which arose out of the alleged conduct giving rise to the charges.
The applicant’s personal referees regard him to be mature, disciplined and trustworthy. One referee (Mr O) specifically states that he would trust the applicant with the referee’s children and any child entrusted into the referee’s care. Another referee (Ms E) states that she has never observed the applicant to act in a way that would be described as inappropriate and she intends to ask him to tutor her children once again if he regains his WWCC clearance. That referee’s husband (Mr E) echoes those sentiments. Ms B’s reference attests to EHM’s strength of character throughout the period of time the allegations were made, investigated and eventually disproven in the criminal proceedings. Ms B also states that she has observed EHM to interact very well with her family and others. A reference from Mr B attests to EHM’s trustworthiness and states that he has allowed his two daughters to spend time at EHM’s house after school unsupervised. A reference from the applicant’s treating GP (Dr D) states that over the past 10 years he has found the applicant to be dependable, always willing to help and very family-orientated. Additionally, the treating GP states that he has observed the applicant’s interactions with the GP’s children and the applicant’s own children and observed them always to have been appropriate.
None of the referees were required for cross-examination. We note that their affidavits were given in full knowledge of the charges, the criminal proceedings and the current matter. We have attributed an appropriate, albeit moderately small, amount of weight to the affidavits which lend support to the application.

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)(i)

If the conduct occurred, it would have had an adverse impact on the complainant. If the conduct were to occur again, it would have an adverse impact on a child, both emotionally and psychologically.
Ms Baalbergen, the applicant’s treating psychologist, has treated the applicant since the time of the conduct giving rise to the charges. She first saw the applicant about two and a half weeks after the conduct, upon referral from his treating GP, with respect to depressed mood, feelings of distress, disturbed sleep and agitation. The applicant was referred for psychological assessment, treatment and support.
According to Ms Baalbergen’s reference (Exhibit A10), the applicant consistently presented during his treatment of fifteen sessions as engaged, thoughtful and calm. She noted that he expressed views that “he values children and young people and is keen for them to reach their potential”.
Ms Baalbergen is of the view that the applicant is “suitable for child related employment.”
It is a matter of concern that the applicant knew of the complainant’s vulnerability and put himself in a compromising position to be alone with her in his car and to allow his empathy to develop to the point where he wanted to comfort her physically, even at the lowest level of patting her on the knee and shoulder (by his account). His disclosures to the Pastor, his treating GP and Ms Baalbergen that he could not work out why he found his hand on the complainant’s breast are difficult to reconcile with his assertion that it was an “inadvertent” or “accidental” touch. We say this despite Ms Baalbergen’s evidence under cross-examination that in her view the two concepts can be reconciled, however we note that she acknowledged she did not have all the material before her and she relied upon the applicant’s version of events.
In Ms Lucas’ opinion, the applicant did not present at assessment with symptoms of a clinically relevant psychological disorder. She noted that he has a history of being treated for Major Depressive Disorder but thought this was likely to have been a low mood in response to a significant life change and that there was no information to indicate that he has continued to suffer from that clinical syndrome. Ms Lucas opined that the applicant’s symptoms of feeling stressed and down were representative of an Adjustment Disorder rather than a Major Depressive Disorder, resulting from the charges, court process and loss of his employment.
Ms Lucas noted that the applicant’s psychosocial history did not include factors often identified as creating vulnerability towards violence, sexual violence or general offending.
With respect to an assessment of the risk that the applicant poses to the safety to children, her view was not conclusive, except that in her opinion:

“[The applicant] did not appear to have any of the factors typically associated, in the relevant professional literature, with an increased risk for sexual offending, including sexual offending against children.”

While Ms Lucas’ report is not definitive, on balance, it weighs in favour of the application.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

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

The applicant provided the following information in support of the application:

his affidavit;

affidavits from his treating GP and various friends as noted earlier in these reasons;

Ms Lucas’ expert assessment report as noted earlier in these reasons;

Ms Baalbergen’s reference as noted above.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 30A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

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

The Tribunal considered matters submitted on behalf of each of the applicant and the respondent.

Summary

This matter proceeded as a de novo hearing.
In the criminal trial, a higher standard of proof had to be met. However, in these proceedings, the Tribunal applies the lower threshold when assessing the risk that a person poses to the safety of children, on the balance of probabilities. Additionally, this Tribunal must have regard to the paramount consideration under s 4 of the Act, namely, the safety, welfare and well-being of children and protecting them from child abuse. Further, and importantly, this Tribunal has regard to the conduct of the applicant which goes beyond the scope of the alleged criminal charges.
As noted earlier in these reasons, it is not possible to reconcile the complainant’s version of events with the applicant’s account. We have not put undue weight on the complainant’s version of events. The respondent placed significant weight on the findings of the workplace investigation which preferred the complainant’s version of events although she was not interviewed by the investigator. Noting that evidentiary gap and the procedural flaws associated with the investigation, and being mindful of the opinion of the independent expert forensic psychologist about the applicant, we do not regard the findings as being determinative of an assessment of the applicant’s risk to the safety of children. Accordingly, we have not placed undue weight on the workplace investigation.
This case falls into the category of cases, referred to in CXZ’s case, as not lending themselves to definitive factual determination. The complainant’s allegations of being sexually assaulted by the applicant over a period of one hour vastly differ from the applicant’s acknowledged touching of her breast in an accidental and fleeting manner. We cannot make a “positive finding” in relation to the complainant’s allegations. And yet, although the applicant has consistently asserted the breast touch was accidental, having regard to his conduct surrounding the incident, the allegations cannot be said to be “groundless”. In those circumstances, consistent with the reasoning in CFW’s case, we must nonetheless consider whether, on the evidence before us, there is a risk of harm occurring.
When we consider all the circumstances and the applicant’s conduct surrounding the incident, we conclude that the existence of a risk has not been disproven (consistent with the reasoning in BKE’s case).
That conduct includes the applicant’s disclosures to his (then) Pastor and his referring GP in the days following the incident and then to Ms Baalbergen in his first counselling session, which reflect that the applicant was perplexed and trying to understand how he ended up “doing what [he] did”. In our view this self-questioning to a minister of religion, a medical professional and a psychologist in the immediate aftermath is persuasive upon our assessment of risk. Those disclosures are very difficult to reconcile with the applicant’s description of what occurred as an “accidental touch”.
An accidental touch is simply that, a touch that was not intended to occur and one that could quite easily be explained by EHM lying in a semi-supine position on the lounge and intending to pat the complainant’s shoulder in a comforting gesture, but accidentally touching the complainant’s breast instead. It appears to us that if it was an accidental touch, it could have been transparently dealt with by an immediate apology.
As the applicant acknowledged, the complainant’s parents were already aware of their daughter’s condition and had actively made arrangements for her to spend time with EHM’s daughter because of that condition. It appears to us that the applicant’s asserted need to speak to the complainant’s parents about what their daughter had said to him was somewhat otiose in the circumstances. Any concern about the SMS messages appears to have been of little consequence. Thus, it appears to us that the primary catalyst for EHM’s visit to the Pastor and his meeting with the complainant’s parents was the breast touch.
If it had been an innocent and inadvertent touch, it is unlikely that a person in that situation would feel such anxiety and stress, and take on an ashen and distressed appearance as described by the child’s parents, the Pastor and EHM’s referring GP.
A matter to which we have given significant weight is the position of trust and confidence the applicant had in relation to the complainant. EHM was in a position of power and influence over the child, having been her school teacher a few years earlier and having taught her in martial arts. The applicant and his family were in a church relationship with the complainant’s family. EHM knew the complainant was fragile and suffered from PTSD and anxiety.
Even though he may not have known the precise details, EHM had some understanding that the complainant had previously been sexually abused. He knew she had recently been admitted to a clinic for her mental health. Her emotional and psychological frailties were evident to him, as he has testified. The applicant had received mandatory training in child protection issues and the School’s Code of Conduct about how to conduct himself in relation to children. He had more than 20 years’ teaching experience and knew how allegations such as those made against him are regarded and proceed.
Nonetheless, despite that context and his own knowledge, the applicant allowed his empathy to become displaced with an urge to physically comfort the complainant. In doing so, he placed himself in a compromising position by being alone with her in his car. He placed her in a compromised and potentially harmful position where she might feel abused or mistreated under the guise of being offered comfort when she was not emotionally or psychologically robust.
Taking into account all of these things, it is apparent that the applicant’s level of emotional involvement with the child led to a cross-over of the boundaries that he knew should not be breached.
EHM had been nominated as the complainant’s support person in the school environment context. In relation to learning that he had been so nominated, the applicant appeared to be more concerned about how, in accepting that responsibility, his reputation could suffer. Curiously, despite the empathy he felt towards the complainant, he gave no indication that his responsibility as her nominated support person might enliven his alertness and sense of responsibility towards the welfare and wellbeing of the complainant.
After touching the complainant’s breast, EHM did not act protectively towards her, or in her interests. On a number of occasions in the Tribunal hearing, the applicant’s concerns were expressed firstly from his own perspective about the breast touch and how it would be interpreted. His responses did not persuade the Tribunal that his first concern with respect to the breast touch was the impact it may have had on the psyche of the child whose vulnerability was undeniable. It appeared to the Tribunal that the applicant’s concern for the complainant (after the breast touch incident) was subdued below the concerns he held for himself.
In the applicant’s favour, prior to the events concerning the complainant, he had enjoyed an exemplary career and reputation as confirmed by his referees. The independent expert forensic psychologist considers he does not appear to have any of the factors typically associated with an increased risk for sexual offending, including against children. Ms Baalbergen considers the applicant to be suitable for child-related employment.
The matter is recent, and we note that the respondent attributed some weight to this fact. However, in light of Ms Lucas’ report, at another point in time before the embargo of five years expires, the respondent may consider allowing the applicant to make an application for a WWCC clearance pursuant to s 13A of the Act.

Conclusion

Consistent with the analysis in DYH’s case, in conducting our review, we have not assumed the correctness of the respondent’s Decision.
Consistent with the reasoning in BKE’s case, we have looked at the totality of the evidence before this Tribunal and taken into account “all of the circumstances”.
For the reasons set out in this decision, we are satisfied that EHM does pose a real and appreciable risk to the safety of children.
The Tribunal is of the view that the correct and preferable decision is to affirm the respondent’s Decision not to grant the applicant a WWCC clearance.
In view of the previous two paragraphs, it is not necessary for the Tribunal to consider the matters referred to in s 30(1A) of the Act.

Orders

The decision of the Children’s Guardian dated 2 April 2020 to refuse to grant the applicant a working with children check clearance is affirmed.

**********

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: 15 July 2021

Day	Event
Sunday, January 2018	EHM’s wife and the complainant’s mother speak at church about the complainant’s recent stay in a mental illness unit and arrange for the complainant to ‘hang out’ with EHM’s daughter at EHM’s house and watch a movie on the following Friday.
Friday, following the previous Sunday	EHM and his daughter drive the complainant to their home and watch a movie. The complainant discloses to both that she has recently been in a psychiatric unit. (Note: The events on this day were not the subject of any criminal charges against EHM)
Saturday, next day	EHM drives alone with the complainant from the martial arts centre to collect EHM’s daughter. During the journey the complainant makes further disclosures to EHM when they are alone in the car. After collecting EHM’s daughter, all three travel to EHM’s home where they watch a sequel to the movie. (Note: The events on this day were the subject of the criminal charges against EHM)
Sunday, next day	Asserted exchange of text messages between EHM’s daughter and the complainant who requests EHM’s phone number.
Monday, next day	Asserted further exchange of text messages between EHM’s daughter and the complainant.
Tuesday, next day	EHM meeting with the complainant’s parents.
Wednesday, next day	1. EHM meeting with the Pastor. 2. EHM consultation with his GP requesting referral to a psychologist.

Medium Neutral Citation:	EHM v Children’s Guardian [2021] NSWCATAD 205
Hearing dates:	16 March 2020
Date of orders:	15 July 2021
Decision date:	15 July 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member R Royer, General Member
Decision:	(1) The decision of the Children’s Guardian dated 2 April 2020 to refuse to grant the applicant a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW — application for review under s 27 of Child Protection (Working with Children) Act 2012 — where teacher acquitted of criminal charge alleging indecent assault of a female student under the age of 16 years — assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34 CHB v Children’s Guardian [2016] NSWCATAD 214
Category:	Principal judgment
Parties:	EHM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Guy (Applicant) A Douglas-Baker (Respondent) Solicitors: Thompson Madden Solicitors (Applicant) Crown Solicitor (Respondent)
File Number(s):	2020/00129301
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 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.