GFO v Children's Guardian

[2024] NSWCATAD 346

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GFO v Children’s Guardian [2024] NSWCATAD 346

Hearing dates:

31 July 2024

Date of orders:

18 November 2024

Decision date:

18 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
R Royer, General Member

Decision:

Dismiss the application.

Catchwords:

ADMINISTRATIVE LAW – Child protection – Working with children – enabling order - whether applicant poses a risk to the safety of children – teacher student relationship - where applicant has not displaced the presumption after being found guilty of a sexual offence against a child – 29 years since the date of offending

Legislation Cited:

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

BKE v Office of the Children’s Guardian [2015] NSWSC 523
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255
Office of the Children’s Guardian v EQE (2002) NSWSC 871
VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

GFO (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self-Represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00055349

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings is prohibited.

REASONS FOR DECISION

1. This is an application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”).

2. The applicant, who is referred to as GFO, is declared a “disqualified person” under the Act. A disqualified person is prohibited from being granted a working with children check clearance (“WWCCC”), unless otherwise ordered by this Tribunal. GFO is a disqualified person because, on 18 April 1996 he was convicted of two counts of sexual intercourse with person between the age of 10 and 16 years (“the disqualifying offence”) contrary to s 66C(1) (now amended) of the Crimes Act 1900 (NSW) (“Crimes Act”). He is presumed under the Act to be a risk to the safety of children.

3. GFO requires a WWCCC to enable him to pursue his career as a teacher.

4. The Children’s Guardian (the “respondent”) is responsible for administering the WWCCC regime. Before the respondent can issue GFO with a WWCCC, the Tribunal must decide whether, or not, to declare that he is not a disqualified person for the purposes of the Act, and if so, decide if he should be granted a WWCCC.

Non-publication order

5. The Tribunal made an order prohibiting the disclosure of the name of the applicant, his victims and of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). We note that, for the purposes of s 64 of the NCAT Act, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person (NCAT Act, s 64(4)).

Background

6. GFO is a 53 year old man. At the time of the disqualifying offence, GFO was going through a separation with his then wife. He was a high school teacher in Sydney. GFO was also involved in organising and planning sports carnivals and assigning coaches to student’s teams. He also himself coached some of those teams. He described his role as a sports coordinator.

7. GFO commenced a relationship with a then 15 year old female student at the school. He fell in love with her and was introduced to the student’s mother. He spent time at the student’s home, often sleeping overnight. He asserts that at the beginning of the relationship he believed the student was 16 years of age. He later found out she was only 15 years old. He contends when he became aware of her age, he told the student they could not have sexual intercourse until she turned 16 years. After GFO was convicted in relation to the disqualifying offence, he and the student and her family, moved to Queensland. They rented a house and continued their relationship for a period of time. The relationship between GFO and the student ended sometime later. The student commenced a relationship with another person and has given birth to a child. GFO and the student remain friends and in contact with each other.

8. GFO remarried and has a 10 year old son. He seeks to pursue his “passion as a teacher/coach” on a casual basis with the Department of Education. As part of the process to apply for a teaching position, GFO requires a WWCCC.

9. On 24 January 2024, GFO was informed by the respondent that his application for a WWCCC, made on 9 January 2024, was refused. This was because he was a disqualified person under s 18(1) Act.

GFO is a disqualified person

10. It is not in dispute that GFO is a disqualified person under the Act. This is because he was convicted by the Parramatta Local Court on 18 April 1996 of the disqualifying offence, being two counts of sexual intercourse with person between 10 and 16 years. The Court imposed a sentence of a community service order without conditions of 50 hours in respect of each charge. There is no dispute that GFO completed his sentence.

11. GFO was convicted of the disqualifying offence, which is an offence listed in Schedule 2, cl 1 of the Act. These are disqualifying offences, under cl 1 (h) of Schedule 2 respectively.

12. Because of that conviction, s 18(1)(a) of the Act applies, noting that GFO was 25 years old at the time and an adult. The respondent must not grant GFO a WWCCC as he is a disqualified person.

13. On 13 February 2024, GFO lodged an application with the Tribunal. He sought an order declaring that he is not to be treated as a disqualified person and is eligible to apply for WWCCC and an order that he be granted a clearance under s 28 of the Act.

Legislative Provisions

14. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a WWCCC, or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see ss 3, 28 (1) of the Act.

15. The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see s 4 of the Act.

16. As GFO is a disqualified person, by reason of s 18(1)(a) of the Act, the respondent must not grant GFO a WWCCC. Before a clearance can be granted to GFO, he requires the Tribunal to make an enabling order pursuant to s 28 of the Act, which provides:

“28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a Working with Children Check clearance, or

(b) the person’s clearance has been cancelled. because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.”

17. The respondent is a party to the proceedings pursuant to s 28(4) of the Act.

18. In BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J (as he then was) said at [23]-[27]:

The structure of s 28 contemplates that the making of an enabling order and the granting of a clearance certificate are separate steps. However it seems that, in most cases, if NCAT makes an enabling order it proceeds to grant the person a clearance. Nevertheless, the making of an enabling order and the grant of a clearance can have different effects. For example, NCAT could, in a particular case, make an enabling order declaring that a person is not to be treated as a disqualified person in respect of an offence for, say, an unlimited period. In the same case NCAT may grant a person a clearance which by force of s 21 has an operation of five years. In those circumstances, upon the person’s application for a renewal of their clearance, the enabling order will have the effect that the applicant “is not to be treated as a disqualified person” in respect of that offence (s 28(1)). If that is their only disqualifying offence then their application will be treated by the Guardian in accordance with Division 3 of Part 3 and the disqualifying offence will operate as an “assessment requirement trigger” (Schedule 1, clause 1(b)).

Second, at various points in her submissions, Counsel for the plaintiff contended that, in considering whether to exercise the power conferred by s 28(1), NCAT was limited to only considering the relevant offence notified by the Guardian under s 20 as the basis for concluding that he was a disqualified person. This contention is inconsistent with s 30(1). An application for an enabling order is clearly “an application under this Part”. The balance of s 30(1) contemplates that conduct beyond that involved in the disqualifying offence(s) will be considered. For example s 30(1)(b) refers to “the conduct of the person since [the offences] occurred”, s 30(1)(h) refers to the seriousness of that conduct and s 30(1)(i) refers to the likelihood of a repetition by the person of that conduct.

Third, s 28 is opaque as to the test to be applied in determining whether to make an enabling order and order the Guardian to issue a clearance. Subsection 28(7) creates a presumption but it does not expressly specify the consequences of it being rebutted. Both before NCAT and in this Court the parties accepted that the standard referred to in s 28(7), namely whether the applicant poses a risk to the safety of “children”, represented a threshold which persons such as the plaintiff must meet to obtain an enabling order and a clearance certificate. They also accepted that, if it was met, then the order and clearance would be granted. This is consistent with s 18(2) of the Working With Children Act which imposes an obligation to that effect upon the Guardian following their undertaking of a risk assessment.

Further, the parties also accepted that the concept of a “risk to the safety of children” in s 28(7) invoked the following explanation given by Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (“V”) in relation to the word “risk” as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

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

This explains the observation at the commencement of this judgment, namely that the structure of the Working with Children Act is that the assessment of persons such as the plaintiff, who seek a clearance so that they can continue to reside in their own home with an authorised carer and a particular child, is uncalibrated. There is no relevant assessment of the risk that they may pose to that child or other children who they are likely to come into contact with at that residence, or any consideration of measures that might be taken to mitigate that risk. Instead, they are subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.

19. He went on to say at [30]-[33]:

Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

Relevant considerations

20. In making a determination under s 28 of the Act, the Tribunal must consider the matters under s 30 of the Act. Those matters are:

“30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

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

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

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

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

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

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

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

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

The Tribunal’s task

21. The Tribunal’s task when determining an application for an enabling order is to decide whether GFO has displaced the presumption that he is a risk to the safety to children.

22. In doing so, GFO is subject to a risk assessment under Division 3 of Part 3 of the Act. The Tribunal must not grant a WWCCC to a person who is subject to a risk assessment under Division 3, unless, it is satisfied that the person does not pose a risk to the safety of children (s 18(2) of the Act). A risk to the safety of children means a real and appreciable risk to the safety of children (s 5B of the Act) and (see - CXZ v Children’s Guardian [2020] NSWCA 338 at [7], [57]).

The evidence

23. It is not in contest that before the disqualifying offence, GFO and the student commenced a relationship when the student was 15 years old. In summary, the student said GFO rubbed her leg in class, GFO placed his hand on her leg in his car after a soccer match, they went to the movies, the beach and to dinner. GFO would stay overnight at the student’s house on many occasions, with permission from the student’s mother. GFO stayed in the student’s brother room. During the night the student would go into the bedroom where GFO was sleeping. They initially would kiss and perform sexual acts, such as, GFO fondling the student’s breasts. The student would rub GFO’s erect penis.

24. The disqualifying offence relates to events occurring on 10 November and 24 November 1995. GFO entered a plea of guilty to having sexual intercourse with the student. GFO and the student provided written statements to NSW Police.

25. In the student’s statement dated 4 December 1995, the student said:

" At the end of third term GFO took me out. I cannot remember where we went but it was a weekend. I think it was a Friday night. GFO was again allowed to stay at our house.

The rest of the family had gone to bed and GFO went to my brother's room. I waited until everyone had gone to sleep and I went into his room. I saw him lying on the bed and he was wearing his boxer shorts. I climbed into bed with him and we started kissing. GFO then removed his boxer shorts and I could see his penis was erect. Nothing was said.

I then removed my clothes. I was wearing the same pyjamas and underpants. We were lying on the bed naked side my side kissing. I then climbed on top of GFO. He was lying on his back and his penis was still erect. GFO took hold of his penis. GFO was saying things to me but I cannot remember exactly what he was saying. He then rubbed his penis on the outside of my vagina for a couple of seconds. I then lowered myself onto his penis. I hurt a little bit for a minute or so. GFO then moved in and out of my vagina for a couple of minutes until he ejaculated inside my vagina.

We kissed and when I climbed of his penis had become limp and I had semen on the outside of my vagina. I also saw some blood coming from my vagina. I stayed in the room and talked. I went to bed a twenty minutes later.

We had intercourse another three times after this time. It was always in my brother's room after my parents had gone to sleep. We were always naked in the same single bed.

After this GFO gave me a present. It was a pink satin nightie.

…

The last time we had intercourse it was a Friday night about two weeks ago. We went to [...], walked along the beach and came home. GFO again stayed at my house. I again waited until everyone had gone to bed and I went into his room. I climbed into bed with GFO. We started kissing and we removed our clothes. GFO rubbed my breasts and then kissed my nipples. At this time GFO's penis was erect. He said, "I really want you." GFO then rolled on top of me. He took hold of his penis and rubbed it on the outside of my vagina. I then felt GFO insert his penis inside my vagina. He then moved in and out of my vagina for a couple of minutes until he ejaculated inside me. After his penis became limp he rolled off me and I got out of bed. I noticed that I was wet between my legs from the semen. I then went to my room."

[names anonymised]

26. In his oral evidence, GFO agreed that before he had sexual intercourse with the student they were physically intimate and purchased each other gifts. GFO would enter the classroom under the instruction of other teachers to speak with the student. He said he dissuaded the student from speaking about their relationship at school but, at times they may have done so.

27. GFO denied he and the student participated in any physical contact at school. He denied stroking or touching her leg in class. He said he knew she was 15 when they had sex. GFO was cross examined about part of his statement where he said “When I was in a situation to sleep with [the student], … I spoke with [the student’s mother] about the fact that this had happened, and it was then I knew that what I had done was against the law. …”. In his oral evidence GFO was asked about the reference to “sleeping with” the student. It was put to him that that was a reference to having sexual intercourse with the student. GFO denied this and said that the reference was to him sleeping over at her house but not having sexual intercourse with her. We accept his evidence in this regard. In our view, the reference to sleeping with the student was not necessarily a reference to having sexual intercourse. This is because GFO follows that statement by stating “…it was then I knew that what I had done was against the law…” and “… I immediately spoke with [the student] and [her mother] and we discussed no further sexual behaviour until she had turned 16…”. GFO does not reference sexual intercourse. His use of the words “sexual behaviour” could include touching each other sexually, rubbing the student’s breasts and her rubbing GFO’s penis. This type of sexual behaviour is consistent with the student’s statement and GFO’s oral evidence.

28. GFO said he now, on reflection, regrets that he had a physical and emotional relationship with the student. He agreed that he did not regret the relationship at the time. However, he said even now, that he does not regret getting to know her better outside of school, as he did with a number of students. GFO agreed that he was warned by senior teachers about relationships with students. Despite this, he proceeded to have a relationship with the student. GFO was cross examined about a number of warnings and conversations that he had with senior teachers about this. While he could not recall the specifics of those warnings and conversations, he agreed that he was warned about his conduct and generally accepted the contents of various documents put to him. GFO agreed that in about September 1995, the records show that he was warned by his leading teacher and the school principal about his conduct and professional boundaries concerning inappropriate relationships with students. GFO agreed with the cross examiner that he had received a letter from the Director of Schools dated 19 September 1995 concerning allegations of his conduct with both staff and students, and, that he demonstrated non-professional behaviour with a year 10 student. He agreed that his conduct breached his professional boundaries and that he regretted his behaviour.

29. Despite a robust cross examination, we find GFO to be an honest and reliable witness.

Other relevant evidence

18 September 1995

30. In a letter dated 18 September 1995, the leading teacher at the school where GFO worked recorded having counselled GFO in relation to his closeness with and complaints about his conduct towards female year 10 students. GFO could not recall the meeting but said he does not deny that it occurred. He also acknowledged the contents of the letter but said that he could not recall the events or the detail as set out in the letter. We accept that it was more probable than not that GFO was counselled about his close interaction with some year 10 female students by the leading teacher. We accept that interview with GFO took place after the school received complaints about GFO’s behaviour. We also accept that complaints about similar behaviour was made by a teacher at the school and parents of other students. We accept that GFO probably gave money to the student to call her mother. He did not deny doing so.

31. GFO was the subject of a complaint of sexual harassment in relation to a female colleague. GFO did not deny that a complaint was made. However, he could not recall the detail. He acknowledged that the leading teacher in a letter recorded the complaint.

Additional criminal charges

32. On 21 February 2003, GFO drove a motor vehicle and collided with three other vehicles. His blood alcohol limit was 0.115 grammes of alcohol per 100 millitres of blood. On 14 March 2003, GFO was convicted of an offence middle range PCA and take and drive conveyance without consent. He was fined $1,000 and he was disqualified from driving for two years. On 19 August 2003, GFO was charged and convicted of take and drive conveyance without consent and fined $750. The respondent contends the traffic related offences have little relevance to this application. We agree. The traffic related offences are given marginal weight, however, they have been considered.

The hearing

33. Each party relied upon bundles of evidence. GFO’s evidence was marked A and B. The respondents bundles were mark 1 - 2 inclusive. The parties confirmed the documentary evidence had been exchanged. GFO gave oral evidence and was cross examined. The applicant made oral submissions. The respondent relied upon both oral and written submissions.

GFO’s documentary and oral evidence

34. GFO relied upon a short statement filed on 17 April 2024 and his oral evidence.

35. GFO is a commercial cleaner. He has not worked as a teacher since resigning from his position with the Department of Education on or about 29 February 1996.

36. GFO states when he met the student he said “I was taken back [sic] by her. She was beautiful, smart and fun. At this time, I was under the impression she was already 16 years of age, I was mistaken, and this was may fault, no one else’s.”

37. GFO fell in love with the student. He wanted to get to know her and her family better. He met the student’s mother and said they “hit it off so well”. He told the student’s mother that he was interested in a relationship with her daughter and she him. The mother approved them starting a relationship. He said when he the student wanted to “sleep together” it was then he found out she was 15 years 9 or 10 months. It is at that stage they discussed not having any “further” sexual behaviour until she turned 16 years. It was at this stage his employer became aware that their relationship was more than student/teacher. He acknowledges that this was his fault. He and the student agreed to stay together and support each other “no matter what happens”. GFO upon advice from his legal advisers stopped seeing GFO for a brief period of time. However, after pleading guilty to the disqualifying offence, he continued the relationship. He said the student and her mother stood by him and supported GFO through the criminal proceedings and the sentencing hearing. GFO, upon legal advice, gave many “no comment” responses to questions in his police interview. No adverse finding can be made against him in this regard.

38. After GFO resigned from his teaching position with the Department, he and the student’s family moved to Queensland and were all living together. He describes his relationship with the student during that period as a “real relationship” and we “were enjoying it immensely.” Some time later, the relationship between GFO and the student ended. They have remained in contact.

39. In relation to the disqualifying offence and his general behaviour, GFO said

“This initial incident was a huge mistake on my part, at that time, thinking I was with a young woman of 16, but as I have already said, the blame for that falls on me only. I do not regret what happened with [the student], as I know I did the right thing the entire time, keeping her mother in the loop and seeking her approval to be with [the student] and never took advantage of her in any way. There was always mutual respect for each other, and I thought she was of legal age at that time.

Regarding all the allegations of inappropriate behaviour at school, none of that was ever substantiated to be inappropriate. [Acting Principal], my acting Principal at the time, was a good, decent and fair man. He had a job to do and I respected every aspect of that, but there were legitimate reasons for all the allegations. Being the sports coordinator, and not being able to find female teachers at our school to coach or transport the girls to sporting fixtures, myself and other male staff chose to do it. Each and every time we did, [Acting Principal] and all parents were always aware of it. Every time I had minors in my car, both males and females, their parents and [Acting Principal] were aware. [Acting Principal] was not entirely happy with it at the time, but he understood, what we were doing. He never okayed it, but said to us if we had to do it, make sure to have parental approval, which we always did. In regards to the allegations of meeting with students in classrooms or parts of the school privately, the majority of our teaching staff did that. Witnessed by myself at times as well. We were able and even encouraged, at the time, to hold students back and discuss their behaviour or attitudes, one on one. there was nothing inappropriate about that back then. It was a very different time. Teaching and life has changed dramatically since then but please know that we had permission as teachers to do this, from our superiors.

I, myself and the other male staff who decided we would coach the girls teams, that none of the other female teachers wanted to take on, did so to give them the opportunity to play sport, they would not otherwise been able to do. Many of these led to some of our girls going on to many sporting feats. Again, [Acting Principal] and all parents were aware.

There was no inappropriate behaviour from myself, or any of the other male teachers, towards any of the minors at the school, that I witnessed but we did put ourselves into some situations that did cause people to talk. But, all it was, was talk. Nothing ever became of those situations or occurances [sic] and nothing bad ever happened. What we did do, was create fantastic opportunities for these kids to participate in sport against other local schools.

40. The Tribunal asked GFO if he wished to provide any evidence about the power imbalance of his relationship with the student. He said “When I was a teacher at the school, did I abuse my power? I did not use my power to coerce or abuse anyone in that way, shape or form.”

41. The Tribunal asked him if he wished to explain the boundaries of a teacher and give any evidence in chief on this issue. GFO said “I have always understood boundaries to protect children. I understand I crossed those boundaries and that was the wrong thing to do. At no time did I abuse that power to do anything I should have. I knew the student out of school. Was it inappropriate, yes it can be seen that way. The laws are no different, they are the same as what they are now. It was not frowned upon then.”

42. In cross examination GFO said:

Q: You said earlier to the Tribunal’s question that you would never abuse your power’.

A: Yes

Q: Was that your power as a teacher?

A: Yes

Q: What power does a teacher have?

A: It is perceived that you can coerce a student, I didn’t do that.

Q: What do you mean coerce

A: An adult speaking to a child, the adult could coerce them to do something they do not want to do.

GFO’s case

43. GFO submits that the Tribunal should take comfort that over 30 years has passed since the disqualifying offence and he has not come to the attention of the respondent or any other agency, or the police, concerning similar or relevant misconduct.

44. GFO said he:

“made a clear error in judgement, back in 1994, but have since that moment, not only complied, but pleaded guilty to and taken all punishments handed out as directed. I have also, purposely, stayed away from situations that I should not be in over the last 30 years. I now believe, the time is right for me to be granted a second chance to do what it is I have always loved, teach and coach others.”

45. GFO remains married to his second wife. They have a 10 year old son. His current wife is aware of GFO’s relationship with the student and the two ladies have met.

46. GFO contends that he does regret what he did. He said at the time that the relationship happened he regretted certain things. GFO and the student “believed” at the time that when the student turned 16, their relationship would be “okay”. GFO let his emotions take over. He said at the time he was not remorseful. At the time he did not see the seriousness of his conduct. However, now, probably with the benefit of hindsight, he understands the seriousness of his conduct and is remorseful.

47. GFO has been candid and frank about his past conduct and wrongdoing. He has provided significant information in his evidence and where necessary made appropriate concessions particularly with respect to his recollection given the passage of time.

The respondent’s case

48. The primary concern of the respondent with respect to this application is that GFO has not displaced the presumption that he is a risk to the safety of children. Secondly, the respondent does not satisfy the reasonable parent and public interest tests which are found in s 30(1A) of the Act, and the respondent contends that the application should be dismissed.

49. The respondent acknowledges a significant period of time has passed since the disqualifying offence and there is no evidence of any further offending. Even at face value, the respondent contends that traffic related matters should be given limited, if any weight, in assessing GFO’s risk to the safety of children.

50. The respondent contends that GFO’s offending was serious and it involved a power imbalance. GFO knew the student was 15 years at the time he had sex with her. This increases the seriousness of offending. The real risk of serious harm is not that he might have sex with a child in the future, but rather that he might take steps to have a relationship with a child.

51. The respondent poses three reasons for finding that GFO has not reversed the presumption that he poses a risk to the safety of children.

52. Firstly, he demonstrates a concerning lack of insight into his behaviour. In his statement GFO said “When I was the in a situation to sleep with the student…”. The respondent contends that the reference to “sleep with her”, this is a form of colloquial speech to have sexual intercourse with someone. He goes on to state “…when I became aware of [the student’s] exact age, which was 15 and 9/10 months approximately. It was then I knew that what I had done was against the law.” This reference indicates that GFO’s attitude was it was okay to have sexual intercourse with a student who was 16 years of age. The respondent contends that GFO’s evidence that the reference to “sleeping” was physically sleeping with her and that this should not be accepted.

53. The respondent contends that the explanation provided by GFO about his conduct with the student is that they “fell in love”. He does “not regret” the romantic relationship and therein lies the risk of him repeating his conduct.

54. Secondly, GFO was warned by his superiors on repeated occasions and despite these warnings by May 1995, he continued to engage in an inappropriate relationship with the student. The respondent contends that past conduct is a predictor of future conduct.

55. Thirdly, the efflux of time is not in itself an indicator of limited or no future risk. Particularly where GFO has not been able to work as a teacher for the past 30 years which is an important and critical factor. GFO has not led any evidence of professional intervention since his offending which may answer the question of whether he has reversed the presumption that he is a risk to the safety of children. Further, an emotional relationship, absent of physical or sexual contact, can be just as harmful to a child as a relationship which is physical. The respondent contends that GFO lacks the relevant insight into the relationship between student/teacher and the inherent power imbalance that exists.

48. Fourth, in relation to the reasonable person test, the respondent contends that a reasonable person would not allow GFO to have unsupervised access to children for three reasons. First, he had a relationship with a student. Second, the relationship developed into a sexual relationship and third, GFO does not regret the relationship.

49. The fact that the child is 16 years of age would not obviate a crime now. A reasonable person would be concerned that GFO does not understand what the relevant law is, referring to the operation of ss 73 and 73A of the Crimes Act, which provides for an offence any person to have sexual intercourse, and/or engage in sexual touching, with a young person at or above 16 years of age and under 18 years of age, if the accused person is a teacher at the school where the young person is a student, and where the accused person has established a personal relationship through, amongst other things, a sporting connection and the young person is under the accused persons authority. The respondent contends that GFO takes a cavalier attitude to what is appropriate.

50. Even if GFO does not engage in conduct to meet ss 73 and73A of the Crimes Act, the mere fact that he pursues a romantic relationship with a child, while not necessarily amounting to an offence, is conduct that a reasonable parent will be concerned could occur to their child and will be a reason for not wanting their child to have indirect and unsupervised contact with GFO.

51. Fifth, in respect of the public interest test, the respondent gave two reasons why the test is not satisfied. The first is that as these two provisions show, parliament has taken the view that a special care relationship between adults and children does warrant further protection and in particular whilst the age of consent is ordinarily 16, in the case of a child is under special care, that alone is not an excuse. The provisions point to there being a particularly strong public interest in protecting these special care relationships. Where GFO is seeking to be re-employed as a casual secondary teacher, or, as a sports coach, the Tribunal needs to be especially persuaded that he does not pose a risk to the safety of children. This is because parliament has mandated that these special relationships deserve particular protection and consistent with that, there should be a high level of certainty required out before finding It is in the public interest to give GFO a WWCCC. Secondly, it is unlikely that GFO will be re-employed as a teacher where his file with the Department of Education has been marked “not employed within a school in any capacity (casually or permanently) without reference to the Director, school staffing”. The effect of that notation means that it is unlikely that GFO could be re-employed as a teacher again. In circumstances where GFO is seeking an enabling order, there is no public interest in making the enabling order because it is in effect futile without reference to the Director. There is at least a real chance that GFO is not going to be able to be re-employed as a casual teacher. The question of the utility of making this order is that there is simply no evidence one way, or another, that granting a WWCCC will influence a review or assessment by the Director should GFO make an application to be re-employed with the Department.

Consideration of the s 30 factors

(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.

60. We are satisfied that GFO engaged in a sexual relationship with the student, who was a child, for a number of months. He was in a position of authority over the student being her teacher. He engaged in unacceptable conduct giving the student preferential treatment, ingratiating himself with her family, buying her gifts and more probable than not, engaged in physical contact with her at school. We have taken into consideration that the student was not forced into this against her will.

61. We cannot fully exclude the version of events provided by the student in her statement to NSW police about GFO rubbing her leg in class. We note that GFO denied this to be the case. However, he said both he and the student agreed to tell the police the truth when giving their statements. GFO’s evidence given at this hearing about this issue may be affected because of the significant period of time which has passed since 1995. We have found him to be an honest and reliable witness.

62. GFO’s conduct in 1995 is extremely serious. He was given a number of warnings by senior teachers about inappropriate relationships with students. However, he was consumed by his emotions and sexual gratification in perusing a relationship with the student. He ignored his professional obligations and boundaries in continuing the relationship with the student.

63. The conduct of GFO would be an offence and attract a significant penalty and term of imprisonment.

64. The traffic matters whilst serious in the context of driving whilst intoxicated and using a motor vehicle without permission, but are given limited weight in this application.

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

65. The disqualifying offence occurred over 29 years ago. This is a significant factor.

66. GFO has not been the subject of any criminal charges since 2003, which occurred 21 years ago.

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

67. GFO was 24 years of age at the time of the disqualifying offence.

(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,

68. Relevantly, the student was 15 years old and vulnerable. GFO committed the disqualifying offence in a position of trust as the student’s teacher and within the school environment where the student should have been able to feel safe.

69. GFO was in a position of authority over the student as her teacher.

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

70. The victim was 9 years younger than GFO. GFO was the student’s teacher and in a position of authority and trust.

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

71. GFO knew the victim was a child, 15 years of age. He admitted this in his oral evidence. In his interview with NSW Police, he said on two occasions that he knew the student was 15.

(g) the person’s present age,

72. GFO is now 53 years of age.

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

73. GFO’s disqualifying offence is serious. His criminal history, apart from the traffic matters is incident free.

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

74. GFO did not place before the Tribunal any expert evidence concerning whether he poses a risk to the safety of children. There is no legislative requirement for him to do so.

75. We have considered the totality of the evidence before us concerning whether there is a likelihood of GFO’s repetition of his conduct, or offending.

76. GFO submits that due to the significant passage of time since the disqualifying offence and his essentially uneventful criminal record, the risk of him reoffending is low. He said he has undergone no counselling or professional assistance because he has no desire to engage in any sexual or physical relationship with a child.

77. The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to GFO, independent of any expert opinion. An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person may prospectively behave.

78. GFO explained what he understands to be a power imbalance between a teacher and student. He described that power imbalance as being a situation where the teacher, being an adult, could coerce a child to do something they did not want to do. He denies that he coerced the student in any way in respect of their relationship. However, GFO’s explanation fails to consider the inherent power imbalance between a teacher and student by its very nature. A teacher is in a unique position of trust, care and authority with their students. It is the teacher’s responsibility to maintain professional boundaries with students in both a school or non-school setting, even where a student, or a teacher, may have emotional feelings for each other which places the teacher in a conflict of interest.

79. A teacher must maintain professional boundaries to ensure there are no breaches which can include, preferential treatment without legitimate reason, forms of control to develop emotional dependence, forming close relationships with students and their parents, or siblings.

80. GFO conceded that he regrets part of his behaviour. He said he regrets having a relationship with the student and having sexual intercourse with her. He agreed that at the time he did not regret this, but he does now. He does not regret “getting to know” the student better both at school and outside of school He said he got to know many students better outside of school, particularly because of sports. He did not reconcile what “getting to know” a student outside of school means.

81. The respondent contends that GFO lacks insight into his prior conduct and there is a real and appreciable risk that he may again pursue a relationship with a child who comes into his care. Given his lack of insight with respect to the inherent power imbalance and blurring of professional boundaries, the impact on a child could be serious. Even in the absence of actual sexual behaviour, the fact that GFO is in a position of power any advances on a child, whether physician or emotional, could have a severe impact on the wellbeing of that child.

82. We have considered that GFO is now 53 years of age. More than 29 years have passed since the disqualifying offence. He has an uneventful criminal history since 2003. We accept GFO regrets his conduct concerning the disqualifying offence. However, we are not satisfied that he demonstrates the relevant insight into the inherent power imbalance between a student and teacher. GFO relates the power imbalance to coercive control type behaviour rather than recognising the broader power, influence and position of authority a teacher has over a student. This in our view is troublesome.

83. We have considered that GFO continued his relationship with the student after the criminal matters were dealt with and while he remained employed by the Department of Education. At the time he believed that the relationship was consensual and he did not regret commencing the relationship. He has a different view now.

84. GFO has also not undergone any professional counselling or assessment to demonstrate what strategies he may adopt, should a student exhibit emotional type behaviours towards him in a school setting. This adds further concern about how he may identify his own feelings and emotions towards a student and what strategies he might employ to ensure the protection of children, particularly in a teaching, coaching or school environment.

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

85. There is no evidence of any other order in force relating to GFO.

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

86. We have considered GFO’s statement provided in the proceedings.

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

87. No information was obtained pursuant to s 36A of the Act.

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

88. None were identified.

Our findings

89. We are not satisfied that GFO has displaced the presumption that he poses a real and appreciable risk to the safety of children. We have taken into consideration that for the past 29 years since the disqualifying offence, GFO has not been the subject of any similar complaints or charges. For the last 19 years, GFO has no relevant adverse interaction with NSW Police or other authorities.

90. GFO is not required to file expert evidence. The Tribunal is not bound by expert evidence when assessing any whether GFO is a real and appreciable risk to the safety of children. However, he must demonstrate on the evidence that the presumption that he is such a risk is displaced.

91. It is a concern to the Tribunal that GFO has not demonstrated the requisite insight into his offending and the inherent power imbalance between teacher and student. He has made general motherhood statements that he accepts that he breached his professional boundaries. However, our particular concern lies in GFO’s oral evidence that in his view he did not “abuse his power” as a teacher. He said “I did not use my power to coerce or abuse anyone in that shape or form”. We find that GFO did abuse his power as a teacher. He gave the student, and others, special treatment. He purchased the student a nightgown. He took her to the movies, he took her out to dinner and slept overnight at her house on numerous occasions. GFO also ingratiated himself with the student’s family. We have taken into consideration the statement of the student where she said that she was in love with GFO. These are all factors which demonstrate that GFO abused his power as a teacher and breached his professional boundaries. We accept that the relationship was described by the student as ‘consensual’, which may indicate that the risk of reoffending is low in the absence of strictly predatory behaviour. However, that does not explain how GFO will be able to identify and deal with any future inherent power imbalance, even if a child is consenting. Parliament has created a specific class of offences in this situation to protect children.

92. In our view, GFO has not rebutted the presumption that he poses a real and appreciable risk to the safety of children. The passing of a significant period of time, by itself, is not enough.

93. For these reasons, we find that GFO does pose a real and appreciable risk to the safety of children.

Consideration of the s 30(1A) factors

94. In making our finding as set out above we are not required to consider the matters set out in s 30(1A) of the Act before an enabling order can be made. However, for completeness we have. Section 30(1A) of the Act provides:

‘The Tribunal may not make an enabling order unless it is satisfied that:

(a)   a reasonable person would allow their children to have direct contact with the applicant that was not directly supervised while the applicant was engaged in any child-related work; and

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

95. In VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789, the Tribunal affirmed as the correct approach when considering s 30(1A)(a) of the Act in Office of the Children’s Guardian v EQE (2002) NSWSC 871, [52]; Judge McNamara of the Victorian Civil and Administrative Tribunal said at [36]:

‘… (the test) requires the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint him or herself with all the matters that have been placed before me, giving the applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.’

96. In ZZ v Secretary, Department of Justice [2013] VSC 267 at [202] Bell J of the Victorian Supreme Court observed that:

‘While decisions of the Tribunal have correctly emphasised the main purpose of the Working With Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work in other similar situations.’

97. Previous authorities have determined that the jurisdiction of the Tribunal under the Act is protective and not prohibitive. The application of the public interest test involves a balance of competing interests, being the protection of children balanced against the right of the individual to be employed in and participate in the community. The paramount principle under the Act requires that the protection of children, particularly from child abuse. However, it is not the only factor that must be considered.

Would a reasonable person allow their child to have direct, unsupervised contact with the applicant whilst he is engaged in child related work?

98. We have considered that the disqualifying offence included that it was against a 15 year old child and was committed when GFO was 24 years old. It occurred more than 29 years ago. GFO was in a position of power and authority over the student.

99. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know the applicant’s criminal history being his conviction for the disqualifying offence and his history from that date. The reasonable person would also take into consideration all of the material before the Tribunal including the student consented to GFO advances. The student’s mother gave permission for the relationship to progress. However, in our view the reasonable person being armed with information that despite warnings from GFO’s superiors about inappropriate relationships with students that GFO continued his pursuance of the relationship. He did so knowing that the student was 15 years of age and that it was an offence to have any sexual contact with a child. Despite this, he let his emotions take over.

100. GFO did not undergo any counselling or professional assistance. His ability to identify and explain the inherent power imbalance between a student/teacher relationship was lacking. He placed great weight on the fact that he was “in love” with the student at the time and failed to acknowledge the special care relationship. Despite the significant lapse of time since his offending, we find that a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.

101. The Tribunal must also be satisfied of the second part of the test in s 30(1A) that the order is in the public interest.

102. The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255 and CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262. We have done so.

103. GFO committed serious offences against a child 29 years ago. Where GFO does not recognise the power imbalance of a teacher/student relationship and the element of trust that a teacher has, the public interest is not served by granting a WWCCC to GFO. The harm to a child is significant, even if there is no physical and sexual behaviour. Emotional or psychological harm is equally significant. Parliament has made a policy decision that the teacher/student relationship is in a special category that warrants further protection, even if the child is above the age of consent, being 16 years. We find it would be contrary to the public interest to make the enabling order, because the policy fulfillment of that policy objective would be undermined.

98. When balancing the public interest and the GFO’s interests, we find that GFO has not satisfied the public interest test.

99. In summary, we are satisfied that the applicant has not rebutted the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is not in the public interest to make an enabling order.

ORDER

1. Dismiss the application.

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

Registrar

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: 18 November 2024