FXT v The Children's Guardian

[2024] NSWCATAD 268

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXT v The Children’s Guardian [2024] NSWCATAD 268

Hearing dates:

7 February 2024 and 30 May 2024

Date of orders:

06 September 2024

Decision date:

06 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member
J Herberte, General Member

Decision:

The decision of the Respondent made on 6 July 2023 to refuse to grant the Applicant a working with children check clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Working with children –pattern of inappropriate conduct over many years as a teacher – allegations that the applicant engaged in boundary crossing behaviour – Where multiple workplace investigations found allegations sustained – Whether applicant poses a real and appreciable risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Children's Guardian Act 2019 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

AYU v NSW Office of Children's Guardian [2014] NSWCATAD 69

BJB v NSW Office of The Children's Guardian [2014] NSWCATAD 11

BKE v Office of The Children's Guardian [2015] NSWSC 523

Commission for Children and Young People v V [2002] NSWSC 949

CXZ v Children’s Guardian [2020] NSWCA 338

Fitzwater v Fitzwater [2019] FamCAFC 251

Isles v Nielssen [2022] FedFCFamC1A 97

M v M [1988] HCA 68; (1988) 166 CLR 69

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

Reportable Conduct fact sheets, published 20 February 2024,

Category:

Principal judgment

Parties:

FXT, Applicant
The Children’s Guardian, Respondent

Representation:

FXT (self-represented)
Counsel: A. Douglas-Baker (Respondent)

Respondent
Solicitors: Crown Solicitor

File Number(s):

2023/00246242

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013-Restriction on publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant, FXT, seeks review pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (Working with Children Act) of the decision of the Children's Guardian (the respondent) made on 6 July 2023 to refuse to grant FXT a Working with Children Check clearance (WWCC clearance) on the basis that he poses a risk to the safety of children.

2. FXT applied for a WWCC clearance on 14 January 2022. The application was stated to be for the purpose of enabling FXT to undertake volunteer work, nominating “Clubs and other bodies” as the child related sector. On 7 March 2022, the respondent imposed an interim bar on FXT under s 17 of the Working with Children Act and advised FXT that he was subject to a risk assessment requirement under cl 2(a) of Schedule 1 of the Working with Children Act. Clause 2(a) relates to findings of misconduct involving children and includes where a person has been the subject of a finding by a reporting body that the person engaged in sexual misconduct committed against, with or in the presence of a child. The record prompting the assessment was a workplace record of sexual misconduct of the Catholic Education Office dated 26 November 2014.

3. The risk assessment was undertaken over the period March 2022 to July 2023. FXT provided information in support of his application, including statements, references from third parties, including his employer, documents, and written submissions.

4. On 24 May 2023, the respondent wrote to FXT and advised that it was proposed to refuse his application for the WWCC clearance. FXT responded to this notice of intention on 16 June 2023. The respondent refused the application for a volunteer WWCC clearance on 6 July 2023. As a consequence, FXT is barred from making an application for a WWCC clearance for a period of five years.

5. On 3 August 2023, FXT made an application to the Tribunal for review of this decision made under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Case management directions were made by the Tribunal and orders were made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) that the publication and broadcast of the name of any person mentioned in the proceedings or referred to in the documentary material lodged in the proceedings is prohibited. This order was made to protect the identity of any alleged victim. The parties were directed to file and serve evidence and submissions and the review was listed for hearing on 7 February 2024.

6. When the matter came before the Tribunal on 7 February 2024, it was ascertained that FXT had not received the second volume of documents lodged with the Tribunal by the respondent pursuant to s 58 of the ADR Act. It was also identified by the respondent that there may be further documents relevant to the issues in dispute that should be provided to both FXT and the Tribunal that may not have been identified and provided because of complications arising from the handover of the relevant functions between the NSW Ombudsman and the respondent in 2015.

7. The respondent requested that the proceedings be adjourned so that any further documents could be identified and served, giving the parties an opportunity to present any further evidence and make supplementary submissions in respect of those documents. FXT consented to this course and the parties agreed on an amended timetable to reflect the additional procedural steps, including provision for FXT to lodge and serve any evidence and submissions in response.

8. The Tribunal agreed to the adjournment and the additional procedural steps to give effect to the guiding principles in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), relevantly, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. While the adjournment and the additional procedures under the amended timetable had the impact of delaying the proceedings, these matters were critical to the just disposition of the matter and to resolve the real issues in dispute. The documents identified were relevant to the risk assessment and, as such, were documents that should have been provided by the respondent under s 58 of the ADR Act.

9. FXT’s evidence was delayed until after he had been given the opportunity to review and respond to the additional documents. However, to make effective use of the scheduled hearing, FXT provided a preliminary opening in respect of his arguments and why he was seeking a review. He had arranged for four witnesses to give evidence on his behalf, three in person, and one by telephone. Because these witnesses were available and no disadvantage was identified by FXT or the Tribunal in their evidence proceeding, the evidence of FXT’s witnesses was finalised on the first day of the hearing.

10. In March 2024, the respondent provided further documents relevant to the review, comprising documents relating to allegations made against FXT arising out of his work as a teacher at a primary school in the Sydney metropolitan area. These documents included transcripts of interviews with alleged victims, investigation reports and correspondence relating to allegations and investigations. The allegations related to incidents said to have occurred between 2004 and 2014.

11. The hearing resumed on 30 May 2024, with oral evidence from FXT and submissions by both parties.

12. Pseudonyms have been used in these reasons for each of these witnesses because if their identities are disclosed it may be possible to identify FXT and the alleged victims.

13. For the reasons that follow, we have decided to affirm the decision under review.

Background

14. FXT is a 56-year-old man who currently works in finance. Prior to commencing his career in finance, the applicant was a primary school teacher. He had many years of service as a primary school teacher and was employed by the Catholic Education Office from 1988 to 2014. He worked in primary schools located in western and south-western Sydney.

15. In addition to his employment as a schoolteacher, FXT has many years’ service as a netball coach and umpire. He has coached both junior and senior netball teams, including teams comprised of children aged 18 years or under. He has also umpired netball games for children and adults and has been involved in umpire coaching for children and adults. FXT has received several awards and acknowledgments in respect of his service to sport, including school sport. He has completed certificates in umpiring and coaching netball and is a badged umpire accredited through Netball Australia. There is a 4-tiered system of badges, being C, B and A with the highest national award being AA. FXT holds both C and B umpiring badges. He has also completed intermediate coaching accreditation through the National Coaching Accreditation Scheme. There is no dispute that FXT has been involved in the sport of netball, including coaching, umpiring and administration, for nearly 20 years.

16. On 21 April 2016, FXT was refused a WWCC clearance by the respondent and was barred from working with children for a period of five years because the respondent was satisfied FXT posed a risk to the safety of children.

17. The refusal and bar arose out of a risk assessment undertaken by the respondent following an application made by FXT on 23 May 2014 for a WWCC clearance. The risk assessment was undertaken based on a ‘Workplace Record’ dated 2010 to 2011 in relation to ‘Sexual Misconduct (Crossing Professional Boundaries)’, which was said to have been sustained.

18. FXT did not seek review of the decision of the respondent made on 21 April 2016.

19. In response to FXT’s current application for a WWCC clearance, the respondent notified FXT on 7 March 2022 that he was subject to an interim bar while an assessment was being undertaken. It is noted that the respondent’s check identified FXT as having records listed in the notice, being the previous workplace record for sexual misconduct, the outcome of which was sustained. It is further noted that the existence of these records required assessment before the respondent could make a decision about FXT’s application for a clearance.

20. On 15 April 2022, FXT made a submission in response to the notification. He stated that the reason why he wanted a clearance was to join the local sports club as an umpire and to go back to coaching netball. He denied the allegations made against him and provided references from various members of the netball associations and clubs that he had been involved with over the years, together references from his current manager and friends. Over 30 references attesting to FXT’s good character were provided. He also provided a service award dated 2006 from the NSW Catholic Primary Schools Sports Council, a 2014 volunteer appreciation award from the President of Netball NSW and evidence of coaching courses completed by FXT. These records reveal that FXT had completed his C and B Badge tests for umpiring by 1996, his intermediate coaching course in 2012 and further courses relating to netball umpiring, being the NSW umpire’s convenor workshop and the practical coaching intermediate workshop, from 2017.

21. A risk assessment was undertaken by the respondent and the results of the assessment are recorded in a report, known as a ‘Risk Assessment Worksheet’, dated 24 May 2023. Many of the allegations and evidence considered by the respondent in the first risk assessment and refusal process in 2016 were also considered by the respondent in this risk assessment and refusal process. A notice of the proposed refusal of the application for clearance based on this risk assessment was sent to FXT by email on 24 May 2023. The reasons for the proposed decision are set out in the notice. These reasons identify the risk factors which were said to weigh against granting FXT clearance. Those factors were: a history of repeated child related allegations spanning nearly ten years and the existence of historical allegations of child sexual abuse; the fact that FXT’s misconduct took place while he was in a role of trust and authority and involved young children entrusted in his care, across various settings, including domestic settings, child related employment and child related activities; the repetition of similar behaviour that had occurred despite significant deterring factors and advice on establishing appropriate boundaries with children; the fact that FXT does not accept responsibility for his sustained conduct and states that he is not caused harm to any children and the fact that FXT has not addressed the issues of concern in remedial action.

22. FXT provided a statement dated 16 June 2023 addressing the issues raised.

23. The respondent undertook an updated risk assessment dated 5 July 2023 taking into account the response and, following this risk assessment, made a final decision notified to FXT by notice dated 6 July 2023. The notice of final decision records that the respondent refused FXT’s application for a WWCC clearance, noting that this had the effect of barring FXT from working with children for five years.

Relevant Law

24. Section 3 provides that the object of the Working with Children Act is to protect children by not permitting certain person to engage in child-related work and by requiring persons engaged in child-related work to have WWCC clearances. Section 4 provides 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.

25. Section 5B of the Working with Children Act provides that a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

26. The term child-related work has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. It includes working in connection with clubs, associations, societies or other bodies, including bodies of a sporting nature, providing programs or services for children. Section 8 provides that a worker must not engage in child-related work unless the worker holds a WWCC clearance of a class applicable to the work. Section 12 provides for two classes of WWCC clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.

27. Section 13 provides that a person may apply to the respondent for a WWCC clearance, and the application must specify the class of clearance applied for. A person who is refused a WWCC clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A.

28. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the Working with Children Act apply to the person. Schedule 1 sets out assessment requirement triggers. These triggers include cases where proceedings have been commenced against a person for certain offences specified in cl (1) of Schedule 2, cases where proceedings have been a commenced against a person for an offence specified in the subcl (2), being offences committed against or in the presence of a child, and cases where a person has been convicted of specified offences against or involving a child. Further grounds specified in Schedule 1 that trigger a risk assessment are cases where there has been a finding of misconduct involving children by a reporting body that the person engaged in a sexual offence committed against, with or in the presence of a child, sexual misconduct committed against, with or in the presence of a child or any serious physical assault of a child (Sch 1, cl (2)).

29. Section 15 provides that the respondent must conduct a risk assessment of an applicant for a WWCC clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of the children if the respondent becomes aware that the applicant, or holder, is subject to an assessment requirement. Section 15(4) sets out the matters that the respondent may consider when making an assessment as follows:

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

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

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

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

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

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

(g) the person's present age,

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

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

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

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

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

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

30. The respondent may, by noticing writing to an applicant, request the applicant, or holder, to provide further information about an offence or other matter related to the application or clearance (s 16). Section 17 provides that the respondent may, at any time after receiving an application for clearance or commencing an assessment, determine that the applicant, or holder, is subject to an interim bar.

31. Section 18 of the Working with Children Act sets out how the determination of applications for clearances must be made and provides as follows:

18 Determination of applications for clearances

(1) The Children's Guardian must not grant a working with children check clearance to the following persons ("disqualified persons")--

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

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

(3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

32. Section 19 provides that if the respondent proposes not to grant a WWCC clearance to a person, the respondent must notify the person in writing of the proposed decision. The respondent must allow the person to provide submissions and must consider those submission before finally deciding the application. The respondent must notify the applicant in writing of its decision to grant or refuse to grant a WWCC clearance and must set out the reasons for the refusal (s 20). The respondent must cancel a WWCC clearance of a person if the respondent becomes aware that the person is a disqualified person or is satisfied that the person poses a risk to the safety of children (s 23).

32. Section 27 of the Working with Children Act provides that a person who has been refused a WWCC clearance by the respondent or whose clearance is cancelled by the respondent may apply to the Tribunal for administrative review. The Tribunal may make an order under s 28 declaring that a person is not to be treated as a disqualified person for the purposes of the Working with Children Act. The Tribunal may also make an enabling order under s 28 on application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance.

33. Section 30 sets out the matters the Tribunal must consider in determining an application for review. Those matters replicate the provisions the respondent may consider as set out in s 15(4) of the Working with Children Act. Notably, these considerations are discretionary for the respondent but mandatory for the Tribunal. Section 30 provides as follows:

(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.

35. If a person seeks an enabling order under s 28, the Tribunal may not make an order unless it is satisfied that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and it is in the public interest to make such an order.

36. In the present case, FXT is the subject of a record made by Family and Community Services (FACS) that he is a person causing harm in respect of a then year five child in his capacity as a classroom teacher. He is also the subject of a reportable conduct notification made by the Catholic Education Office. These are assessment requirement triggers for the purposes of s 14 of the Act and, as such, an assessment was undertaken by the respondent over the period from March 2022 to July 2023, culminating in the refusal decision made on 6 July 2023.

37. There is no dispute that FXT requires a volunteer WWCC clearance to work as a netball and netball umpiring coach of children. Nor is there dispute that there have been no allegations made against FXT about misconduct involving a child since the previous WWCC clearance refusal in 2016, FXT has not worked with children since this refusal and consequential banning and he has not been charged with, or convicted of, any offences relating to chlidren. The allegations which gave rise to the assessment requirement triggers arose out of FXT’s employment as a primary school teacher and through his role as a netball coach. These allegations are over a 10-year period, from 2004 to 2014. A number of these allegations form the basis for the assessment made by the delegate that FXT poses a risk to the safety of children.

The issues

38. Section 63 of the ADR Act provides that in determining an application for administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may decide to affirm, vary or set aside the decision under review. If the Tribunal sets aside the decision, it may make a decision in substitution for the decision set aside or it may remit the matter for reconsideration to the original decision maker in accordance with any directions or recommendations.

39. The issue is whether FXT poses a risk to the safety of children and whether his WWCC clearance should be refused on this basis. In determining this issue, the Tribunal must have regard to the mandatory considerations set out in s 30 of the Working with Children Act.

40. The respondent relies on past allegations of misconduct made against FXT when he was a primary school teacher and a netball coach and umpire of junior players. The relevant question for the Tribunal is whether FXT poses a present or future risk to the safety of children. This is a predictive exercise and is a question of fact. The evidence of past misconduct, particularly if it involves children or young persons, may nonetheless be material to this issue. As such, it is relevant to consider the previous allegations made against FXT, the nature and extent of those allegations and whether they are or may be sustained.

The material before the Tribunal

41. The documentary evidence provided by the respondent comprises documents relating to the investigation of historical allegations made against FXT from 2004 to 2014. These documents included transcripts of interviews, statements, correspondence, reports by investigators and NSW Police and statements and references provided by FXT. The documents also comprise risk assessment reports and the materials submitted by FXT in relation to the original investigations made and the assessments undertaken in 2015 and 2016 and the risk assessment reports and materials submitted by FXT in relation to the most recent assessments undertaken in 2022 and 2023.

42. In addition to this material, FXT made updated submissions, provided evidence at the hearing and relied on the oral evidence of other witnesses who he says support his good character and claims.

43. The documents provided by the parties are extensive.

44. FXT was a primary school teacher from 1988 to 2014. He worked at three primary schools during this period. There is no evidence that any allegations were made against him until he worked as a teacher at his last school, being the primary school in respect of which all allegations of misconduct have been made. In the period that he was a teacher at [primary school] there were multiple allegations made against him in his capacity as a teacher. These allegations were made in respect of conduct alleged between 2004 and 2014. In addition to these allegations, there were multiple allegations made against FXT by one player relating to his role as a netball coach. These allegations, and the outcome of the allegations, are summarised below. None of the persons or alleged victims referred to in the documents gave evidence at the hearing.

Approach taken by the investigators

45. There were several investigations undertaken in relation to the allegations made against FXT. It is therefore useful to understand the approach taken by the reporting body, and those who were instructed to investigate allegations made against FXT, in relation to whether FXT’s conduct was reportable for the purposes of the Working with Children Act and the Children's Guardian Act 2019 (NSW).

46. The respondent publishes factsheets on its website about the Reportable Conduct Scheme in NSW ( The fact sheets note that the scheme is allegation-based. The fact sheets refer to the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, noting that a finding that an allegation of reportable conduct has been sustained requires evidence supporting that the conduct occurred on the balance of probabilities. Reportable allegations should not be sustained on the basis of mere suspicion, speculation, inexact proofs, indefinite testimony or indirect inferences.

47. In Briginshaw, the High Court considered the standard of proof required to establish what was, at that time, the serious allegation of adultery. There was discussion about whether the civil or criminal standard applied to findings of fact in these matters. The High Court rejected the notion that the criminal standard applied, although accepted that any tribunal of fact should act “with much care and caution” before finding that a serious allegation is established (Latham CJ at p347). As observed by Dixon J (at p362) when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found, namely there should be “reasonable satisfaction” about the fact, noting that:

.. reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

48. In Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, the Full Court of the Federal Court rejected the proposition that Briginshaw was a principle of law but agreed that some findings of fact, which are attended with grave consequences, should not be made lightly.

49. It is apparent from the commentary and analysis expressly referred to in the investigation reports relied on by the respondent that investigators followed the fact sheets and generally adopted the Briginshaw principles when making findings and recommendations.

50. The Briginshaw principle and the analysis about whether we are satisfied that FXT poses a risk to the safety of children is discussed later in these reasons.

First allegation 2004

51. On 16 August 2004, FXT was advised by the Catholic Education Office of an allegation made against him of reportable conduct. The allegation was anonymous, and it was to the effect that while teaching his Year 4 class during 2004, FXT sat a female student on his lap and stroked her hair with his hand. There is a confidential briefing note of the investigation in the respondent’s documents. It is recorded that the parent of the child questioned her daughter about the allegation and pressed her on it. The parent reported that her daughter was surprised because the allegation was so fanciful and told her mother that the only thing wrong with FXT was that he “made them do work all day”. The parent would not agree to her daughter being interviewed and she did not want the issue to be raised again. The confidential briefing note recorded that the matter would not be pursued further, and it should be recorded as a “false” allegation.

52. There is also file note recording that the author, on receiving the investigator's report was not convinced about the recommendation and suggested that another student in the class be interviewed. The school principal spoke to the other student who told her that she had never seen any students at the school sit on the lap of the teachers. The file note also records that there was concern by one of the parents about malicious rumours going around the school about FXT. Ultimately, this anonymous complaint was closed.

53. At the time the complaint was made, FXT was notified of the allegation by letter dated 16 August 2004. It is noted that the student concerned denied the alleged incident took place, FXT had verbally denied the allegation and that an investigation would take place. There are limited details about the investigation other than the confidential briefing referred to above. By letter dated 28 September 2004, FXT was advised that an investigation had been carried out by the Catholic Education Office which had concluded there were no grounds for this complaint and the matter was not sustained. The letter also stated that this had been a difficult time for FXT, but the author was satisfied the allegation had been dealt with appropriately and wished to assure FXT that he continued to be a valued member of the staff.

54. The report was notified to the NSW Ombudsman who advised that no further action was required to be undertaken in relation to this matter. FXT was advised accordingly by letter dated 16 February 2005.

Second allegations 2008

55. On 2 June 2008 an allegation was made that on 30 May 2008, while teaching a class, FXT came over to help one of the students who was having difficulty with an activity and touched her on the waist, rubbing her sides. This made the student feel uncomfortable. Is also alleged that he put his hands around another student's waist. This also make made her feel uncomfortable. Included in the respondent’s supplementary bundle is a copy of a report of an investigation conducted by the Catholic Education Office. This report records that the complaint was made by one of the children's mothers. During preliminary investigations about the matter, the second incident was discovered. FXT was advised of the allegations at the time. The parent of the second child did not want her daughter to be interviewed but another student who worked with that student stated that she had witnessed FXT put his hand on the second student’s waist.

56. FXT was interviewed. He is recorded as stating that he may have patted the first child on the back but did not put his arms around her or rub her sides. He apologised if anything he did made the child feel uncomfortable but denied that he did what was alleged. He also said that he had not observed any apprehension on behalf of either of the girls after this time. A fellow grade teacher was interviewed, and she said she had never witnessed FXT in any situation that she would think was inappropriate. They worked next to each other and there was an open-door policy. The report concludes as follows:

It appears that [FXT] has made some inadvertent physical contact with each of the girls with one hand near the waist while he was encouraging them in their Maths work. He was standing behind them and bending over them as they were sitting at their desks doing their Maths work. [B] did not want to take it further apart from saying that it made her feel uncomfortable. [A] did not bring her concern up to her parents until a couple of days later and then in a public forum. She was not overly distressed by his actions and evidence shows she had been more then comfortable in [FXT’s] presence since then.

The touch which was in an open classroom setting and was not sexual in nature and there appears to have been no other intent except to encourage. There has been no pattern of this behaviour with either of the girls (or others).

57. The finding made was that this was “Not Reportable Conduct-inappropriate professional conduct”. It was recommended that FXT make his apologies and refrain from touching the students at all, even in encouragement, for the remainder of the year due to their heightened sensitivity.

58. By letter dated 17 June 2008 from the Catholic Education Office to FXT he was advised that the investigation had found that this allegation had been found not to be reportable conduct. The letter included the following:

However, notwithstanding the finding, it appears that some inappropriate physical contact may have occurred, although inadvertently, which has made the girls feel uncomfortable. Regardless of intent, you are advised to refrain from using physical contact with the students as a means of encouragement; as such actions can often be misconstrued. It is important to remember that those working in child-related occupations must always be aware that their interactions with students are based on a special trusting relationship, and those relationships are open to intense scrutiny.

Third allegation 2008

59. An anonymous letter was received by the principal at FXT’s school on 29 October 2008. The allegation made was to the effect that FXT makes girls feel uncomfortable by the way he touches them. It is also alleged that parents and children complain about this behaviour, and no one investigates. No victims were identified.

60. The allegations were investigated by the Catholic Education Officer and FXT was notified of the allegation on 3 November 2008. There is an undated confidential investigation report included in the respondent’s documents. The report refers to a summary of witness statements and a summary of FXT’s response, but these documents have not been included in the material. The comment/analysis in the report is to the following effect:

There was no corroborating evidence to support the allegations. The students interviewed said that they liked [FXT] and they had no concerns or worries in his class. They came across at interview as very genuine in their comments. The Principal, Assistant Principal and grade teacher, have been monitoring FXT and his interactions with female students since the previous investigation. They have seen nothing inappropriate and were very positive about FXT's efforts to avoid physical contact that might be misconstrued as inappropriate.

It appears that the letter may have been based on gossip that probably came from the June 2008 matter. The Principal has stated that gossip is rife in the school community. She also believes that because FXT is a single 41 year old man who coaches netball outside of school at a high representative level he unfortunately would be the target for this kind of gossip.

61. The allegation was found to be “false” and the recommendation was that the school principal should continue to encourage parents to bring forward any concerns or complaints through the correct channel and that the principal and assistant principal should continue to monitor FXT’s interactions with his female students.

Fourth allegations 2012

62. On 12 December 2012, the NSW Ombudsman received a notification from the Catholic Education Office that on 15 November 2012, at a shopping mall during a school excursion, FXT held the hand of an 8-year-old student “without cause” and stroked her hand with his thumb. It was also notified that on a separate occasion involving a different student, FXT allegedly placed his chin on the child’s head. The Catholic Education Office raised an additional allegation, concerning several complaints received over this period, relating to a pattern of behaviour over a period of time that included inappropriate touching of children.

63. These allegations were investigated and included in the respondent’s documents as a document headed “confidential investigation report” dated 21 February 2013. The report summarises the investigations undertaken and the evidence obtained and sets out the recommendations and findings made. FXT was provided with a letter setting out the allegations on 27 November 2012. He was interviewed by the investigating officer on 29 November 2012.

64. Included in the confidential report is a summary of evidence table. It is detailed and includes a summary of various complaints and the interviews undertaken in relation to complaints and allegations made about FXT between June and December 2012.There were a total of five separate complaints.

65. The first complain is to the effect that a teacher saw FXT rub his hands up and down a child's arm from the shoulder to the elbow and then cuddle her. This information was provided to the Catholic Education Office, and it is recorded that a warning letter was sent to FXT on 4 June 2012. There is no further detail about this complaint.

62. The second incident referred to is about a parent teacher interview on 16 November 2012 where the parent of a student said their daughter felt uncomfortable when FXT put his chin on her head. It is recorded that FXT was told this by the parent, and he was told that the child needed her space. It is recorded that no further action was taken at that time.

63. The third complaint is a letter dated 31 October 2012 stating that the parents of a child at the school did not want their daughter in FXT’s class next year because he made comments about their daughter, and it makes her feel funny.

64. The fourth complaint is a letter dated 22 November 2012 in which the parents of a child stated that they did not want their child in FXT’s class because he was too intimate with the children.

65. The fifth complaint is an email dated 21 November 2012, stating that a parent saw FXT on an excursion take the hand of a student and rub his finger over her hand. It is recorded that the child, who was a Year 3 student, was interviewed and she stated that she could not remember if FXT held her hand or not and she was not concerned about FXT. There was a further letter dated 7 December 2012 from a parent helper on the excursion relating to this incident where the parent states that she also observed FXT was caressing the child's hand. The parent did not believe there was a need to hold the child's hand as she was not distressed. The parent stated that she had discussed this issue with her own daughter and her daughter told her that FXT gave a child a big hug after wrapping a towel around her after swimming because she was cold.

66. The report records that the investigation officer interviewed another teacher who worked with FXT. This teacher said she did not see FXT’s chin on the head of the child and she was there all the time. She was not concerned about FXT's interactions with students at all and there was certainly nothing sexual in the way that he connected with the children.

67. FXT was interviewed. In relation to the fifth complaint about holding and stroking the child’s hand, FXT denied stroking the child’s hand and stated that he was holding her hand for no more than two minutes because he was concerned about the crowds and that she would get lost. They were in a corridor with lots of people coming and going. He denied placing his chin on another student's head and he did not believe that he had done anything that was inappropriate. He stands behind children when helping them out and leans over to explain things. He is aware of child protection issues, and he takes his job very seriously. He had been spoken to previously about contact with students but does not think it is fair because no other female or male teacher who has done similar things has been reported.

68. The confidential report noted that the parents of the child involved at the shopping centre were not contacted or told of the allegation as the child had not disclosed anything to the principal and the child was not distressed and did not seem to know what the principal was talking about. It is further noted in the report that the allegations appeared to be a lot of rumour and innuendo. Despite this, it was noted that the principal had concerns as she had many conversations with FXT about contact between students and the teacher. It was also noted that there was concern that FXT does not acknowledge that any of his contact with students is inappropriate.

69. The report noted that the student had not complained, nor had her parents raised any issue about FXT to the school. The child had said she did not know what they were talking about when the issue was raised with her and as the child was articulate, it would be expected that she would say if there was something that was of concern. It is possible that FXT held the hand of the child because they were in a crowded place.

70. The investigator concluded that there was evidence FXT had physical contact with a student and encroached into their personal space but the investigator did not consider that the conduct would be deemed sexual misconduct.

71. In relation to the allegation that FXT held the student’s hand and stroked it, the investigator accepted that FXT held the student’s hand but also accepted that there was a reason for doing this. While the investigation officer did not doubt the evidence of the parent who believed FXT was also stroking the child’s hand, the officer found on the civil standard of proof and taking into account the principles in Briginshaw, that the allegation as stated was not reportable conduct. In relation to the second allegation about FXT putting his chin on the student's head, this was denied by FXT. It was concluded that FXT was standing behind the student and possibly invading the student's personal space making her feel uncomfortable. This was said to be a performance issue that required correcting but was not reportable conduct. In relation to the third allegation, relating to the fact that four allegations of inappropriate conduct had previously been made against FXT, it was noted that none of the allegations had been sustained and this allegation is therefore also deemed not to be reportable conduct.

72. It was recommended that the issues be referred back to the Catholic Education Office and that the school principal should commence a performance management process with FXT around his physical boundaries with students. It was also recommended that FXT participate in a psychological assessment with a view to understanding his interactions with children to assist him in the future. The principal was also to continue taking an active monitoring role.

73. By letter dated 21 February 2013, the Catholic Education Office advised FXT that it had found he had physical contact with a student and encroached into their personal space but accepted FXT’s explanation for doing so was feasible. FXT was also advised that the Catholic Education Office concluded FXT had more than likely stood behind a student and invaded their personal space, consequently making her feel uncomfortable. It was concluded that encroaching into a student's personal space was a performance issue. The letter concluded:

I do however want to take the opportunity to remind you that those working in child-related occupations must always be aware that their interactions with children are based on a special trusting relationship and those relationships are open to intense scrutiny. The interactions whilst not reportable conduct has been misinterpreted by community members.

78. Ultimately, these complaints were not found to have been established and FXT was given letter advising of this but notably the letter included something of a warning about his future conduct.

Multiple allegations 2013/2014: JIRT and Integroe Partners investigations

79. On 23 May 2013 a student at the primary school at which FXT worked, known as NJ, disclosed to FACS that FXT had acted sexually towards her when she was in Years 4, 5 and 6. According to the respondent’s submissions, the NSW Ombudsman was notified of this allegation on 28 June 2013 and the matter was accepted by the Child Abuse Squad for criminal investigation and later by FACS for investigation of risk of harm. At the time NJ made the allegations she was in high school, and the allegations made related to events that were over five years old.

80. A briefing note in documents obtained by the respondent from the Department of Communities and Justice, which does not appear to be dated, states that NJ disclosed on 23 May 2013 that FXT had acted sexually inappropriately to her when she was in Years 4, 5 and 6. It is recorded that NJ stated FXT would ask NJ to stay back after class and asked her to sit on his lap. It was alleged that FXT tried to add NJ to his Facebook account, but she declined and that he would touch her hips but pretend he was only hugging her. It was also disclosed that FXT had touched NJ on her thighs and other places and that he had done this to three of her friends.

81. The matter was referred to the Joint Investigation Response Team (JIRT) for further investigation and assessment. As part of this process JIRT referred the allegations to NSW Police and NSW Health.

82. The documents provided outline the investigations undertaken, including a transcript of interviews with NJ and others. NSW Police also commenced an investigation, FXT was interviewed in relation to certain allegations and an interim apprehended violence order (AVO) was issued against FXT in favour of NJ on 25 October 2013. It expired on 22 November 2013.

83. The respondent’s documents include a report from the [area] unit of JIRT dated 15 July 2023. The report notes that NJ was interviewed on 18 July 2023 and agreed for the interview to be recorded. NJ stated that FXT was her teacher in Year 5, and he was the year coordinator when she was in Year 6. She alleges that while FXT was in these roles he touched her on her body in different places, including her neck, rubbing her leg and touching her thigh and on the side of her upper body under her armpit. It is also alleged that FXT asked her to sit on his lap. NJ stated that when FXT was her teacher he would come from behind her to check her work and put one hand on the back of her neck and the other on her thigh. She said this made her feel uncomfortable. It is also reported that NJ was suffering from anxiety and depression, although it was not known whether this related to incidents involving FXT.

84. The JIRT found the allegations made were sustained because sufficient information was provided by NJ during her interview in which she reportedly provided spontaneous and detailed accounts of separate incidents of inappropriate touching by FXT. It was also noted that the information provided indicated a process of victimisation and grooming.

85. During these interviews with the JIRT, NJ disclosed the names of other girls in the Year 5 class who she alleged FXT had touched. Those girls were also interviewed and each of them disclosed inappropriate touching, usually in the classroom, around their waist and on the back, with one child alleging FXT would make girls sit on his lapse when reading homework and would put his hands around girls’ waists inside their jacket. One of the girls disclosed that she had not been touched but friends had told her that they had been touched and she, and some of the other girls, had witnessed two other girls at the school crying. The girls had told them that when they were in either Year 5 or 6, FXT asked them to sit with him and then to sit on his lap and he put his hand inside their jackets and on their waists. Those two girls were not interviewed. It should also be noted that while preliminary interviews were undertaken by JIRT in relation to some of the girls, the parents of the girls subsequently declined to give consent for the girls to be re-interviewed.

86. FXT was offered the opportunity to attend a person of interest interview and to respond the allegations on 15 July 2013. He was stood down from his position during the police investigation into NJ’s allegations. On 1 August 2013 the police investigation was suspended due to insufficient evidence and FXT was advised of this through his solicitor. On 25 October 2013 a teleconference was held between representatives of FACS, FXT and his lawyer. FXT was advised that he would be recorded in the FACS database as a “person causing harm” in relation to NJ. FXT was given an opportunity to respond to the allegations, but he declined to provide a response. On 15 November 2013, FXT was informed that he had been identified as “a person causing harm” in relation to NJ. He was advised that the record was permanent and could not be appealed but he would be afforded an opportunity to provide any written response to the response to the allegations and this response would be contained in the record.

87. When the JIRT commenced making inquiries into the activities of FXT, it was also identified that he was involved in netball as a coach at local and elite levels. As such, there were several lines of inquiry undertaken by JIRT.

88. The JIRT police officers interviewed former students at the primary school, which included NJ and other former students she had named. JIRT FACS officers made inquiries regarding netball players coached by FXT. There were also allegations made by FXT’s sister relating to regarding historical allegations about FXT when she was a child. These were considered but there was limited investigation in relation to these allegations.

89. FXT was provided with an outline of the allegations made against him by letter dated April 2014 and he provided a written response in May 2014, suggesting that other lines of inquiry should be followed up to assist in completing their investigation. By letter dated 22 July 2014 FXT was made aware of further allegations made against him by his sister.

90. Included in the Tribunal documents is a report dated 26 November 2014 from independent consultants, Integroe Partners. The consultants were retained to investigate and report on the allegations made by NJ and others. The report provides a convenient summary of the investigations undertaken and the evidence obtained. It includes an analysis of evidence and findings in respect of the allegations made. The report states that the consultants applied the civil standard on the balance of probabilities, taking into account the principle in Briginshaw v Briginshaw.

91. The evidence relied on is set out in the report. There were 10 interviews undertaken between December 2013 and October 2014 and these interviews where with the principal, the assistant principal, other school staff, FXT, FXT’s sister, and NJ and her sister. Two of the children identified were not interviewed because they reportedly had significant anxiety. The independent consultants also reviewed the investigations and previous interviews undertaken by the JIRT in relation to NJ, some of the other former students referred to by NJ, previous investigation reports and file notes of conversations relating to these investigations. The Integroe Partners report is comprehensive. It is 46 pages in length with various annexures. It contains eight recommendations on the final page.

92. We are not bound by the findings in the report, which are merely opinions formulated by independent consultants who were retained to undertake investigations and to make findings of fact and assessments of risk for consideration by the respondent. We must make our own findings about the allegations made. However, the report provides a useful summary of the evidence and findings, and it is therefore apt to outline the contents of this report in some detail. This report also sets out the background which gave rise to the previous WWCC clearance refusal and consequential five year banning.

93. The independent consultants summarised evidence about FXT’s credibility, reporting that three witnesses had identified circumstances in which they believed FXT had lied. These witnesses were FXT’s sister and the principal and assistant principal at the primary school. It was noted that the allegations made by FXT’s sister were serious and that she may have a vested interest in presenting FXT as a liar. Against this, the consultants noted that the evidence of the principal and assistant principal would carry significant weight because of their senior roles, the nature of their observations and their objectivity. The concerns raised about FXT’s truthfulness was not simply that he does not tell the truth but that he lies as a defensive mechanism when challenged and becomes dogmatic in his presentation. As such, it was concluded by the consultants that the evidence regarding FXT's tendency to lie is credible and this in turn raises some doubt as to his credibility. This observation is included for completeness, and it should be noted that we have formed our own view about these matters.

94. The independent consultants noted that the JIRT interview with NJ did not fully explore all details and as such some of the evidence is non-specific in date and location details. It is noted that NJ reported several occasions when inappropriate touching may have occurred when she was in years 5 and 6 and her descriptions were credible. The consultants conclude that NJ’s evidence reflects the genuine belief that these incidents occurred. It is further noted that the evidence of NJ's friend supports the allegations because NJ made contemporaneous reports to her friend at different times directly after the incident occurred. Her friend also indicated that she had witnessed one or two incidents of touching by FXT in Year 6.

95. FXT denies the alleged incidents of touching made by NJ, relying on the fact that he did not teach her in Year 5 and that he was not her roll class teacher in Year 6. FXT states that because he did not teach NJ, the incidents could not have occurred. The consultants nonetheless conclude that there was evidence provided by other witnesses, including the principal, assistant principal and others working within the school, which indicated that FXT had opportunities for contact with NJ both in his role as Year 6 coordinator and in the grading and re-forming of class groups for Maths and English subjects areas in Year 6 in 2011. The evidence of NJ’s friend also supports that incidents of touching may have occurred when they were in Year 5 and that one of the incidents witnessed occurred in the playground in Year 6. The independent consultants therefore find that NJ was a credible witness in terms of the incidents she had reported.

96. The consultants then go on to make an assessment of each of the eight allegations made by NJ and whether those allegations occurred as alleged (Allegations 1 to 8). These complaints related to the alleged touching of NJ by FXT on the arms, legs and stomach, rubbing her leg and touching her neck with both of his hands, rubbing NJ on the stomach and asking NJ to sit on his lap and putting his arms around her. One of the allegations was that FXT tried to add NJ as a friend on Facebook. After assessing the available material, the independent consultants formed the view that all but one of the allegations were found not to have been sustained due to insufficient evidence (and in one case, as being misconceived). In making the findings that there was insufficient evidence to establish the claims, the consultants noted that they had regard the gravity of the allegations and the higher standard of proof required under the Briginshaw principle. However, the allegation that FXT had touched NJ on the lower back was found to have been sustained.

97. The consultants also analysed whether these allegations disclosed a pattern of behaviour by FXT towards NJ which may amount to reportable conduct. The consultants concluded that there was sufficient evidence to sustain these allegations, which was in breach of the Professional Code of Conduct issued by the Catholic Education Office and therefore reportable conduct.

98. The consultants analysed the general allegations made that FXT asked NJ or other girls to sit on his lap from time to time (Allegation 9). These allegations were also related to the allegations specifically made by NJ and the allegations of inappropriate touching of other girls, which were separately analysed by the consultants later in their report. It is noted that FXT emphatically denied ever inviting or allowing students to sit on his lap. However, the consultants concluded that FXT’s denial was not supported by the evidence. The consultants had regard to the evidence of NJ and other witnesses, finding that, while the evidence of one of the girls was not direct evidence, when it was combined with the evidence of NJ and another girl interviewed it tended to suggest that the alleged behaviour of FXT in inviting students to sit on his lap was more than rumour. The consultants therefore concluded that, on balance, this allegation was sustained, and it may have occurred on several occasions. The consultants found that this behaviour is not reportable conduct when considered in isolation, although it was found to be a clear breach of the Code of Professional Standards for Catholic school employees and was therefore a relevant to consider this matter in forming a view about the overall pattern of touching behaviour, which itself would amount to reportable conduct.

79. The consultants considered the allegations made in respect of FXT’s behaviour towards the other students identified by NJ and who were subsequently interviewed (Allegations 10 to 12). The allegations were that FXT would touch or cuddle the girls around the waist and would touch them when they were sitting at their desk or hold them and there were occasions inside and outside the classroom when FXT would grab the girls around the waist. The consultants found that the evidence of the girls was consistent in a number of respects and, on balance, the allegations about touching or cuddling the girls around the waist was sustained but this behaviour was not found to be reportable conduct. The other allegations in relation to the girls were found not to have been sustained due to insufficient evidence.

80. There were allegations made by some of the girls interviewed in relation to two other girls in FXT’s class who were suffering anxiety and required a level of support while they were in school (Allegations 13 and 14). FXT denied that he had been involved in any inappropriate behaviour and stated that because of their episodes of anxiety, he may have had physical contact with them to reassure them. It was concluded by the consultants that this reflected a lack of professional judgement but otherwise these allegations were not sustained due to insufficient evidence. It was noted that neither of the girls were interviewed.

81. The consultants considered that one of the central allegations of concern made against FXT was the allegation that there was a general pattern of in appropriate behaviour by FXT over a period of time that involved inappropriate and unwarranted staring at and touching of children (Allegation 15). It was noted that the evidence relating to this allegation needed to be considered in conjunction with other allegations that had been previously raised. It was also noted that only one female student had raised concern about inappropriate staring and this claim was not corroborated. However, there were numerous examples, including the conduct alleged in 2004, 2008 and 2012, of allegations made about FXT inappropriately touching female students in school and, on occasion, encroaching on their personal space.

82. It was concluded that there was a significant amount of credible evidence provided by witnesses that during 2010 and 2011 FXT engaged in inappropriate touching behaviour towards the female students in Years 5 and 6. FXT had wide access to students across the school community by virtue of his roles as Sports Coordinator, Year 6 Coordinator and in the school playground. While it was accepted that some of the alleged incidents did not occur in the classroom context, the consultants concluded that it was possible that this conduct could have occurred in the broader context.

83. The consultants observed that several of the allegations were sustained, and these allegations include inviting and having female students sit on his lap, behaviours of touching and cuddling girls around the waist on occasion, touching NJ on her lower back while in the classroom and putting his arm around the shoulders of students to calm them during episodes of anxiety. The consultants noted that there was consistency in the evidence provided by several of the witnesses who were generally found to be credible. In contrast, there were questions raised about FXT’s credibility and his defensiveness and lack of insight in failing to recognise the inappropriateness of his behaviour. The consultants also noted that the JIRT investigation outcome report assessed that there were sufficient grounds to find that FXT caused actual harm to NJ sexually and emotionally. On balance, the consultants found the allegation that FXT displayed a general pattern of behaviour that included inappropriate and unwanted touching of children over period of time was sustained.

84. The consultants further observed that FXT knew or ought to have known that his behaviour was inappropriate and that these behaviours breached the Child Protection Code of Professional Conduct for employees at Catholic schools and that this constituted reportable conduct as sexual misconduct, crossing professional boundaries.

85. In relation to the allegations made by FXT’s sister (Allegations 16 to 17), it was noted that she had decided not to proceed with making a formal police complaint but wanted to ensure that FXT was not involved in teaching students, which is why she made the complaint. Notably, FXT’s other sister does not support these allegations and FXT’s brothers were not interviewed. FXT has denied the allegations, stating that he was only 8 years old at the time when the alleged behaviours are said to have commenced. While the consultants considered the evidence of FXT’s sister to be credible, they found that these allegations were not sustained due to insufficient evidence.

86. The consultants were instructed to follow up the allegations made by FXT’s sister after the report was finalised. FXT’s sister did not respond to their requests for further information. The consultants interviewed FXT’s brother, who stated that he did not have any knowledge of the alleged conduct. As such, these follow-up investigations did not change the recommendations or findings about these allegations.

87. The report also refers to allegations that were made relating to netball players which were not investigated or referred to FXT for response. These allegations were therefore not the subject of analysis by the consultants.

88. The consultants made an overall risk assessment. They noted that the investigation considered 15 specific allegations against FXT involving inappropriate contact with female students as well as three allegations of sexual abuse alleged against FXT in relation to his sisters. The investigation sustained three allegations of inappropriate touching (as referred to above) and while several of the specific allegations were found not to have been sustained due to insufficient evidence, the consultants found that the evidence of the alleged victims was overall credible. It was noted that the allegations related to behaviours that occurred in 2010 and 2011 but that there were other complaints previously investigated by the Catholic Education Office or by the school which involved similar allegations against FXT. It was noted that FXT denied all allegations, but the consultants expressed concern that FXT did not appear to understand the fact that physical contact with children, as alleged, was inappropriate and may result in children feeling uncomfortable. The consultants also noted that FXT received instructions, directions and warnings, both written and verbal, regarding his physical interactions with children and young people but they have nonetheless continued.

89. The consultants conclude that there is a significant risk that FXT will engage in similar behaviours towards other female students with whom he will have conduct if he remains in a direct teaching or coaching role. This conclusion was said to have been based on the findings of the current investigation, the evidence of similar behaviours occurring in 2008, 2010, 2011 and 2012, the JIRT assessment of FXT a person who caused actual harm to NJ, FXT’s limited understanding of the outcome of matters and the discomfort his behaviour may cause and his continuing getting touching behaviours despite counselling and warnings about the behaviours.

90. It was recommended that the Catholic Education Office record a finding of “reportable conduct - sexual misconduct” in respect of the general pattern of behaviour that includes inappropriate and unwarranted touching of children over period of time. It was also noted that it would be open to the Catholic Education Office to find the allegations 1 to 8 made by NJ constituted a pattern of inappropriate behaviour which amounts to reportable conduct. It was recommended that the findings of the report be provided the NSW Ombudsman office and that the respondent be notified. It was also recommended that the Catholic Education Office consider whether it refers certain matters to employment services to be dealt with as a breach of the Code of Conduct and as an employment issue.

91. FXT was advised of the outcome of these investigations by letter dated 11 December 2014. He was further advised by the Catholic Education Office that it considered the alleged conduct was in breach of their policies and professional standards for a teacher and it proposed to refer the findings to the Head of Legal Industrial Services for consideration of any further action to be taken.

92. FXT responded by letter dated 28 July 2015. He denied the allegations made, stating that there were different versions of the allegations made, he had never been the classroom teacher or subject teacher in any of the years that NJ had been a student and he had never asked any child to stay back after school or class. While he noted that some staff were interviewed, he stated that not all relevant members of staff were interviewed. FXT disputed the findings about his credibility and disagreed with several the statements made by the principal which he believed showed a prejudice against him. FXT also disputed the finding made by the JIRT and FACS that he was a person causing harm and noted that the reason he did not attend the interview to discuss the matter was on the advice of his lawyer.

93. FXT takes issue with the report of Integroe Partners and notes that they did not interview people who supported him. FXT provided detailed submissions about why the evidence and findings made by the consultants should not be accepted. He also asserts that one of the consultants was prejudicial and unprofessional in the way she conducted the interviews. FXT contended, and continues to contend, that the Integroe Partners report, including the witnesses’ statements, is flawed.

94. By letter dated 29 July 2015, the Independent Education Union (IEU) provided a response on FXT's behalf in relation to the correspondence from the Catholic Education Office. In summary, the IEU denied that there had been procedural fairness in the conduct of the investigation by the consultants and it was noted that the IEU holds grave concerns over the unreasonable amount of weight that the consultants placed on the evidence of certain witnesses compared with the evidence directly attested from FXT. The letter includes a detailed analysis of those matters. The IEU requests a written response in relation to each of the 24 issues outlined in the letter and requests that there be a review undertaken of the report by an independent person.

95. By letter dated 15 September 2015, the Catholic Education Office responded that it had carefully reviewed the issues raised in the submissions by FXT and by IEU. The letter notified FXT of revised findings, which are substantially the same as the findings in the letter of 11 December 2014 with the exception that there is a clarification of the alleged conduct in respective allegations 1 to 8. The main difference seems to be that in the first letter there was a finding of a pattern of inappropriate behaviour of touching towards NJ which was found to be sustained. The letter of 15 September 2015 states that, while there are reports that certain touching occurred, the alleged conduct specific to complaints 1 to 6 were not sustained due to insufficient evidence. Allegation 7 was found to be sustained and allegation 8, as with the previous findings, was found not to have been sustained.

96. There was further correspondence between FXT, the IEU and the Catholic Education Office responding to and clarifying certain aspects of the findings However, the Catholic Education Office did not change its findings and advised FXT he could complain to the NSW Ombudsman if he had further grievances.

Netball allegations

117. As noted, there were allegations made against FXT arising out of his role as a netball coach. These allegations were investigated by the JIRT. The allegations made related to a netball player who alleged that FXT started to touch her physically and would grab her face or put his face next to her face when he was giving her instructions. This made her feel uncomfortable. The young female player who was about 13 or 14 at the time of the alleged conduct. She participated in an interview with the police as part of the JIRT investigation. It is noted that on 8 August 2013 NSW Police suspended their investigation in relation to the player’s disclosures as there was insufficient evidence to proceed criminally. It was also noted that the police did not seek an AVO against FXT as there was no evidence that the netball player would be having any ongoing conduct contact with him. She subsequently indicated to the JIRT members that she did not wish to participate in any in other interview or to discuss the matter further.

118. There was a further allegation reported to FACS in June 2014 that FXT would be present at the state netball championships to be held the following week and it was alleged that he had purchased a massage table to massage players between the games. There is little further information in relation to these allegations.

Allegations 2015/2016: Wise Workplace report

119. On 2 November 2015, Wise Workplace was instructed by the Catholic Education Office to investigate allegations concerning two former students, JJ and AP, and a netball player, SW.

120. The Wise Workplace consultants interviewed the students and transcripts of these interviews are included in the respondent’s supplementary bundle of documents.

121. Wise Workplace found that the allegations in respect of JJ and AP were not substantiated. JJ is NJ's older sister. Wise Workplace found that the allegations FXT had touched SW, by putting his arm around her, resting his hand on her lower back and on one occasion putting his arm around SW and his face close to her, were sustained. The investigators also accepted the allegations that FXT had placed his forehead against SW's forehead and had told her to sit between his legs at the netball courts on the sideline.

122. This report is comprehensive and includes an outline of the allegations, analysis of the evidence and findings and recommendations made in respect of those allegations. There were multiple witnesses interviewed as part of the Wise Workplace investigations. Annexed to the report are transcripts of the interviews undertaken. Some witnesses were previously interviewed as part of the JIRT and Integroe Partners investigations and were not called on to be re-interviewed. In some cases, witnesses declined to be reinterviewed.

123. Wise Workplace relied on evidence from SW, her mother, a netball official with the club (CB), a parent (KB) and FXT in relation to the allegations made by SW. They interviewed SW’s mother, CB, KB and FXT in relation to these allegations and relied on the evidence previously given by SW in the JIRT investigations. The witnesses interviewed in respect of the allegations made by AP were AP, RB a special education teacher at the school, FXT and two former students, NT and MF. The witnesses interviewed in respect of the allegations made by JJ were FXT and MF and the investigators relied on the evidence previously given by NJ in the Integroe Partners and NSW Police interviews and by JJ in the Integroe interviews. Transcripts of the interviews were included in the respondent’s supplementary bundles.

124. As noted in respect of the Integroe Partners report, we must make our own findings and assessment of risk having regard to the allegations which are the subject of the Wise Workplace investigations. The report provides a comprehensive summary of the evidence.

125. SW gave evidence about the conduct of FXT while she was at the netball courts. She alleges that on many occasions FXT put his arm around her, resting on the side of her lower back and with his face close to her face. He also put his arm around her resting on her bottom and on many occasions physically touched her while giving her instruction to about where to stand on the court. It is alleged by SW that on one occasion FXT grabbed SW by placing his hands on either side of her face and pulled her close so that his forehead was touching her forehead and his nose was touching her nose. It is further alleged that while FXT was sitting on a chair beside the netball court, he told SW to sit on the ground in front of him between his legs with her back leaning against the chair.

126. SW's mother was interviewed. She claimed that FXT always had his hands on SW while he was training her. She also claimed that one day she was walking behind SW and FXT when she noticed that FXT had his arm around SW, and he had his hand on her bottom. She said that after this incident she noticed the touching of SW started to happen more. She also said that when FXT was umpiring with SW, instead of directing her where to stand, he would grab her around the waist and move her to the position. She observed that he would move very close to SW with his face next to hers. SW’ mother also stated that FXT would always try to take SW’s earrings out before the game, and he had done this on many occasions. She said she was concerned about these matters and spoke to SW about keeping her distance from FXT.

127. CB is a senior official with the club. She was interviewed in the presence of her husband, who is the President of the club. She said that she and her husband spent most of the day at the netball courts on Saturdays. They had never observed any inappropriate conduct by FXT involving SW nor had she observed SW or any child sitting between FXT's legs in front of his chair. She had never seen FXT putting his arm around SW’s shoulder or waist. She said that occasionally coaches, not only FXT, show players where to stand in position and sometimes this may involve touching the players to move them to the position. One of the allegations related to an incident where SW had come to the game wearing earrings. CB was present at the game and saw what happened. She said SW’s mother tried to take the earrings out, the coach tried to take the earrings out and eventually FXT held her head so that somebody could get the earrings out.

128. KB was also present on the day that SW had her earrings removed. She knows FXT as her children were involved in sport (two of her children were involved in netball) and they also attended the school where FXT was a teacher. She raised no concerns about FXT. Her version of events about the earrings is similar to FXT’s version. She saw him touch SW’s ears but does not believe that his face went near her face.

129. FXT was interviewed. He denied that he ever put his arm around SW or that he put his face close to her face. He denied that he put his arm around her with his hand on her bottom. He said that he may have touched her to push her in a direction to demonstrate what he wanted her to do at quarter time. He said that there was the one occasion where he did place his hands on either side of SW’s face, and this was to remove her earrings. He said that others had tried to do this unsuccessfully and the whole incident took about two minutes. FXT said that this was the only occasion that he did this. He denied telling SW to sit in between his legs while he was sitting in the chair. He said that while he was coaching, he may ask the girls to sit near him, but he usually did not sit in a chair and generally walked up and down the sideline during the game.

130. Wise Workplace found that there was sufficient evidence to establish on the balance of probabilities that most of the allegations were sustained, at least in part. In forming this view, the investigators relied on the evidence of SW and her mother, which was direct evidence about the allegations. It was noted that the evidence of the other witnesses did not directly contradict the evidence of SW and her mother and, in some respects, was consistent with their evidence.

215. We do not accept the evidence that FXT gave during the hearing about his interaction with these two students and note that when he was originally questioned about this in the investigation, he admitted that he did put his arm around their shoulders or give them a brief hug. We also note the evidence the former student interviewed by JIRT, which is clear and unequivocal. This conduct goes beyond a “lack of professional judgement” about keeping an appropriate distance between himself and his students and, in our view, is inappropriate physical contact, particularly given that the two girls in question were vulnerable and had underlying anxiety. These allegations, and more particularly, the fact that FXT did not appear to understand or accept the seriousness of these allegations, raises concerns about FXT’s insight and ability to appropriately deal with children and young people, particularly young women and girls.

216. In relation to the allegations that were made and investigated in 2015 and 2016, we are satisfied that some of these incidents occurred, but we are unable to make a positive finding about the others.

217. We are satisfied that several of the incidents alleged by SW occurred based on the transcript of interviews of SW and her mother. We note that there is little dispute that FXT held SW’s face while removing her earrings and that he may have touched her from time to time to move her into position on the field as part of his instructions. We are satisfied that this conduct occurred, but we are not satisfied that it was inappropriate in the circumstances. SW’s earrings needed to be removed before she took the field, others had attempted to do so, it may have necessary to hold SW’s head still while removing the earrings and this was done in a public setting. We also accept that physical contact while moving players, which may be best avoided when dealing with young women, does not of itself constitute inappropriate touching or contact.

218. What is more troubling are the allegations FXT touched SW on numerous occasions in an inappropriate manner by putting his arm around her shoulders and her waist. FXT denies this. The evidence of CB does not directly corroborate FXT’s denial because she simply says she was usually at the netball courts on Saturdays and did not see FXT put his arm around any players shoulders or other inappropriate touching. This is a general rather than specific denial and the fact that CB did not see FXT putting his arm around SW on numerous occasions or that KB did not have concerns about FXT does not directly contradict or undermine the evidence of SW and her mother.

219. In contrast, the allegations relating to JJ are weak. They are uncorroborated, other than by the initial allegation made by NJ, and are inconsistent with the evidence that JJ was not in FXT’s class in either Year 5 or year 6.

220. This is not the case in relation to the allegations made by AP. While we note that Wise Workplace found these allegations were not sustained because there was insufficient evidence, we have reviewed the transcript of interview of AP and find her evidence to be credible. However, we accept her evidence is not otherwise corroborated, has not been tested and is denied by FXT. We therefore cannot make a positive finding about this allegation, but we cannot discount the possibility that it may be true.

221. The final allegation made against FXT are the very serious allegations of sexual made against him by his sister. FXT denies these allegations. FXT's sister was interviewed in the early stages of the investigations but thereafter declined to be interviewed. Her sister did not support the allegations, nor did her brother. While we cannot make a positive finding that these allegations should be rejected, on balance, these allegations have little weight and by themselves, would be unlikely to support a finding that FXT poses a real and appreciable risk to the safety of children.

222. In summary, we are satisfied on balance that several of the allegations made occurred and there is a possibility that some of the other allegations occurred. We accept the submission of the respondent that, at the very least, the evidence discloses a pattern of FXT engaging in boundary crossing behaviour with his students and a netball player in the nature of unnecessary physical conduct. Relevantly, this occurred over a period of many years in circumstances where FXT was given written warnings about these matters.

223. The question is whether we are satisfied that FXT now poses a real and appreciable risk to the safety of children given our findings about his past conduct.

224. A further issue that is relevant to this question is FXT’s lack of insight about these matters and how he should behave with children and young people in circumstances where he in a position of trust and power, either as a teacher or as a coach. We accept that FXT is entitled to take issue with certain findings and allegations. Failing to show remorse about matters that FXT contests and says did not occur should not be held against him. However, there are numerous instances where FXT contests the more compelling allegations, has changed his evidence or has sought to minimise the seriousness of the allegation. This shows that FXT does not recognise the significance of the allegations made or the potential impact on children. Nor does he seem to acknowledge that inappropriate touching made, or could make, children feel uncomfortable, which is a form of psychological harm. Relevantly, there were numerous investigations undertaken after 2004 and, despite these investigations and FXT’s knowledge that the allegations made by children were to the effect that they felt uncomfortable, there is no evidence that FXT changed his behaviour. His response to this, after being pressed on the matter, is to the effect, “if I made children feel uncomfortable, this was not my intention, and I am sorry for this”. This can best be described as a grudging acknowledgement.

225. It is also relevant that, in responding to these allegations, FXT stated that he believed he was being unfairly targeted, and he did not understand why female teachers were not exposed to these complaints and investigations. This demonstrates a lack of understanding about the particular sensitivities and issues that may arise in the relationship between an older male and a young female student or sporting athlete. FXT also raises a general complaint that other male teachers were not subject to such allegations, although could not point to comparable allegations resulting in more favourable treatment.

226. We accept that since the previous refusal and subsequent banning, FXT has been very careful in his dealings to avoid interactions with children. This is to his credit. However, having regard to our assessment of the allegations made and the material provided to the Tribunal and FXT’s response to those allegations, we are not satisfied that FXT would change his behaviour.

Section 30 considerations

246. In determining whether FXT poses a real and appreciable risk to the safety of children, we must consider each of the factors set out in s 30(1) of the Working with Children Act.

247. Much of the evidence in relation to these matters is either outlined above or is uncontentious. We address each of these considerations 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

248. FXT has not been charged with any criminal charges and is not the subject of any current AVO. He is the subject of a finding by FACS that he is a person causing harm to a child in his professional care as a result of inappropriate touching. FXT challenges this finding on the basis that he was coming in his view, unable to respond in the circumstances of an ongoing criminal investigation.

249. Despite this, and having regard to the reasons outlined above, there is evidence that FXT has engaged in specific instances of inappropriate touching, which has made the alleged victims, at the very least, uncomfortable. There is also evidence that FXT has engaged in a pattern of inappropriate touching and boundary crossing over a number of years. These are the allegations that led to the refusal and interim bar.

250. The respondent contends that while FXT’s conduct is at the lower end of the spectrum of harmful behaviours, his pattern of inappropriate touching nonetheless poses a risk to the safety of children. It demonstrates an abuse of power and trust in the context of the significant imbalance between a teacher and a student or a sporting coach and a child. It is submitted that this relationship is over and above the usual imbalance between an adult and a child and is therefore serious. We agree. We also accept the submission that such behaviours may make a child more amenable to repeated or unwanted and escalating unwanted behaviour. This is a matter of serious concern.

251. The seriousness of this past conduct and FXT’s his failure to reflect on this alleged conduct, engage with how it may have adversely affected his alleged victims and change his behaviours are matters that were given significant weight leading to the refusal of FXT’s clearance and the imposition of an interim bar. We also consider these matters to be significant and accept the respondent’s submission the fact that the pattern of inappropriate touching is confined to female children, even though FXT taught in a coeducational primary school and coached mixed netball teams, adds to the seriousness of the conduct.

252. FXT relies on numerous character and employer references although it is submitted that those references should be given little or no weight because they do not disclose that the referees have specific knowledge of the allegations made against FXT or the history of complaints and his pattern of behaviour. There is force in this submission, particularly when it is not apparent on the face of these references the basis on which these witnesses assess whether conduct is “inappropriate”. Despite this, the fact that many independent witnesses who have known FXT for many years have not observed such conduct is a matter that may count in his favour on the question of whether he poses a risk.

253. On balance, this consideration and the culmination of findings and investigations over the years is adverse to FXT on the question of risk.

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

254. It has been nearly 10 years since the last occasion on which FXT is alleged to have engaged in offending conduct. There is no evidence that he has engaged in any such conduct since this time. We accept FXT’s evidence, and the evidence of his supporting witnesses, that there is no evidence of this and that FXT has been very careful in his interactions with children his previous refusal.

255. Against this, the respondent submits that FXT’s employment as a teacher has ceased, and he no longer coaches children's sporting teams. As such, he does not have the day-to-day close contact with children that he previously had, and the absence of misconduct allegations therefore carries less weight. It is also submitted that there is no evidence FXT has changed his behaviour or undertaken special training or education to assist him in better understanding the risk to the safety of children by engaging in unwarranted an inappropriate behaviour.

256. FXT submits that he has put in place strategies to avoid allegations in the future and one of these is to ensure that he is not, and will not where possible, be alone with children. The respondent submits that this represents undue emphasis on the responsibility of parents and other adults. In fairness to FXT, this response is not unreasonable given he wishes to avoid any potential for allegations to be made. However, we accept the thrust of the respondent’s submissions that there is little evidence that FXT has carefully reflected on the allegations made and how his behaviours may have contributed to the allegations.

257. We are therefore not satisfied that this consideration strongly supports FXT’s contention that he does not pose a risk to the safety of children.

The age of the person at the time the offences or matters occurred

258. FXT was aged 37 to 46 years in the period of the allegations from 2004 to 2013. He was a child himself in relation to the allegations made by his sister. The fact that FXT was a mature adult at the time that of many of the allegations is adverse to FXT on the question of risk. He should have understood the significance of his conduct and the potential for harmful consequences yet there are regular and repeated allegations of misconduct relating to children over from 2008 to 2014.

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

259. The alleged victims, with the exception of FXT's sister, were aged 8 to 14 years of age. Several of the alleged victims were identified as being vulnerable and having anxiety. This factor elevates the potential for FXT’s conduct, if he falls into the pattern of adopting similar behaviours as those in the past, to pose a risk to the safety of children.

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

260. There was a significant age gap between the alleged victims and FXT of between 25 and 35 years. In our view, this elevates the potential risk of harm, and therefore safety, to children.

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

261. There is no dispute that FXT knew that each of the alleged victims was a child. This is an adverse factor, particularly given that the safety, welfare and well-being of children is to be given paramount consideration.

The person's present age

262. FXT is currently 56 years old. On balance, this factor is neutral. For instance, this is not a case where the applicant is old and infirm and therefore is this likely to pose a risk to the safety of children. Nor is this a case where it can be contended that FXT is now older and wiser and therefore more likely to reflect on and avoid the mistakes of the past. FXT was already a mature adult at the time of the previous alleged misconduct.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

263. FXT has no criminal record, and he has been subject to an interim AVO which expired over ten years ago. There is no evidence that the applicant has engaged in any inappropriate conduct since the previous AVO. In our view, this consideration weighs in FXT’s favour on the question of risk.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

264. For the reasons previously outlined, we have found that there is a real and appreciable risk that FXT will repeat the conduct the subject of the various allegations, some of which we are satisfied have been established. He has been counselled and warned but there is evidence that he did not change his behaviour. As already noted, we are not satisfied that FXT has sufficient insight about his previous conduct and behaviours and there is little evidence that he has undertaken, or identified, real and meaningful strategies to reflect on or engage in behavioural change.

265. The impact of such conduct on children, who are made to feel uncomfortable or made more amenable to grooming and inappropriate behaviour, is significant. The respondent submits that there is evidence that NJ has sustained at least some trauma as a result of effects alleged touching. We are not satisfied on the available evidence that this has been established. However, we are satisfied there is a risk of repetition and that the impact of such a risk would be detrimental to children and young people.

Any order of a court or tribunal that is in force in relation to the person

266. There is no evidence of any court or tribunal order in relation to FXT.

Any information given by the applicant in, or in relation to, the application

267. FXT has provided extensive information to the respondent and to the Tribunal in support of his application. We have taken this evidence into account in making our assessment. FXT has provided over 100 references attesting to his character. The majority of these references do not contain any evidence about their knowledge of the allegations and why they say these allegations are unfounded or out of character.

268. While these references and the evidence of FXT’s witnesses at the hearing tend to support FXT’s contention that he does not pose a real and appreciable risk, there is significant cogent material before the Tribunal about the nature, scope and seriousness of FXT’s past conduct. On balance, we are satisfied that FXT posed a real and appreciable risk to the safety of children based on these matters and continues to do so.

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

269. Section 36A relates to information shared by screening agencies. The respondent relied on such information in its various investigations and in these proceedings and those documents are included in the respondent’s bundle of documents and supplementary bundle. As such, this factor does not add to the matters already considered.

Any other matters that the Children's Guardian considers necessary

270. The respondent has not raised any other matters and as such this factor is does not raise any issues for consideration.

Conclusion

271. We find that FXT poses a risk to the safety of children. Accordingly, we have decided to affirm the decision under review, being the refusal of FXT’s WWCC clearance.

272. The respondent submits that if the Tribunal is considering making an order enabling an applicant to work with children under s 28, it must then consider the two-part test set out in section 30(1A) of the Working with Children Act. It is submitted that FXT poses risk to the safety of children and a reasonable person would not allow his or her children to have direct contact with FXT unless he was directly supervised. Even if the Tribunal considers that a reasonable person would allow his or her children to have direct contact that is not directly supervised, the respondent submits that it is not in the public interest to make an enabling order. While it is accepted that there is a public interest in a person undertaking volunteer work in a field in which they utilise their training and experience, the public interest in ensuring that children are provided with a safe space in which to pursue sporting pursuits outweighs the public interest in FXT continuing his volunteer work.

273. This is a pre-emptive submission because FXT has not formally applied for an enabling order under s 28 of the Working with Children Act. He has requested that the Tribunal set aside the refusal and grant a WWCC clearance. He is also requested that the Tribunal remove his name for the Working with Children Register as a person causing harm to a child. The Tribunal is not empowered to remove FXT's name from the register. This is not an administratively reviewable decision.

274. Because FXT’s clearance has been refused, he is thereby ineligible to apply for another clearance for five years, unless he obtains an enabling order under s 28(2). FXT has not address those issues in his submissions and evidence. As such, it is unnecessary, and it would be unfair for us to deal with this matter in the absence of the issues being raised proactively by him. This of course does not preclude FXT from making such an application at some time in the future.

Orders

275. The decision of the respondent made on 6 July 2023 to refuse to grant FXT a WWCC 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: 06 September 2024