GVQ v Children's Guardian

[2025] NSWCATAD 160

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GVQ v Children’s Guardian [2025] NSWCATAD 160

Hearing dates:

15 May 2025
5 June 2025 – submissions closed

Date of orders:

04 July 2025

Decision date:

04 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member
P Foreman AM, General Member

Decision:

(1)   The decision under review is affirmed.

(2)   The Respondent’s application for miscellaneous matters filed on 19 May 2025 is refused.

Catchwords:

ADMINISTRATIVE LAW – NDIS worker check clearance – cancellation of a clearance - risk assessment - risk of harm to persons with disability – whether desirable to make a non-publication order

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Civil and Administrative Tribunal Act 2013 (NSW)

National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42

Children’s Guardian v CFW [2016] NSWSC

Commission for Children and Young People v FZ [2011] NSWCA 111

CXZ v Children's Guardian [2020] NSWCA 338

FMZ v Children’s Guardian [2023] NSWCATAD 86

GDB v Secretary, Department of Education [2025] NSWCATAD 96

GHT v Children’s Guardian [2025] NSWCATAD 16

GLB v Children’s Guardian [2025] NSWCATAD 126

GQT v Children's Guardian [2025] NSWCATAD 109 at [72]

Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Olunwabusor v Children's Guardian [2023] NSWCATAD 199

Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27

Roberts v Balancio (1987) 8 NSWLR 436

Saba v Children's Guardian [2023] NSWCATAD 156

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Sullivan v Civil Aviation Authority [2014] FCAFC 93

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:

Principal judgment

Parties:

GVQ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
G Morgan-Cocks (Applicant)
A Douglas-Baker (Respondent)

Solicitors:
AEN Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00016117

Publication restriction:

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

REASONS FOR DECISION

Decision

1. The Applicant seeks a review of a decision made by the Respondent to cancel his National Disability Insurance Scheme (NDIS) Worker Check clearance.

2. The Tribunal has determined that the correct and preferable decision is to affirm the decision under the review because the Tribunal has assessed that the Applicant poses a risk of harm to persons with disability.

3. The Respondent seeks that the non-publication order made at the commencement of the proceedings be revoked. The Tribunal has refused this application as the Tribunal is satisfied that it is desirable to maintain this order to protect the confidentiality of the Applicant, his family and other persons, including children, involved.

Background

4. The Applicant, a male in his late 50s, has worked in the child education and disability sectors in the United Kingdom and Australia for over 25 years.

5. The Applicant arrived in Australia in 2019 and later that year commenced working as a School Learning Support Officer (Teacher’s Aide) at a school (“the School”) in NSW for children with special needs, specifically mild to moderate intellectual and physical disabilities.

6. In early 2020, the Applicant commenced work as a Classroom Teacher at the School.

7. The Applicant and another teacher at the School (a member of the School executive at the time), referred to in these proceedings as Teacher 11, commenced a sexual relationship, both on and outside the School grounds. The Applicant states that this started in August 2020 and ended in April 2021.

8. On 26 April 2021, the Applicant was notified by the Department of Education (the Department), along with other matters, that his temporary contract with the School was immediately terminated.

9. In May 2021, the Applicant became the subject of a workplace investigation conducted by the Department following a complaint made by Teacher 11 that the Applicant had engaged in non-consensual sexual intercourse with her on School grounds, specifically in a classroom at a time when a non-verbal student was in their presence.

10. On 16 November 2021, eight separate allegations of misconduct against the Applicant were set out in a letter from the Department to the Applicant.

11. The Applicant denied the allegations but admitted to having a sexual relationship with Teacher 11 both on and outside of School grounds, although he said that this occurred only after School hours when all the students had left.

12. On 15 January 2022, the Applicant lodged an application with the Respondent for an NDIS Worker Check clearance (“clearance”) under the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW) (NDIS Worker Checks Act).

13. On 22 February 2022, the Applicant was granted a clearance for a period of five years.

14. On 13 January 2023, the Department notified the Applicant of the findings of the investigation. An allegation of “unwelcome sexual intercourse” with Teacher 11 on School grounds, likely having occurred in view of a student, was sustained. Some of the allegations of verbal comments and physical gestures of a sexual nature to various colleagues at the School, both on and outside of School grounds, were also sustained. The Applicant was consequently permanently placed on a list of people who are not to be employed by the Department. The Department also advised the Applicant that the matter would be reported to the Respondent.

15. On 28 June 2023, the Respondent notified the Applicant that it was conducting a risk assessment.

16. On 26 August 2024, the Respondent notified the Applicant that it had completed the risk assessment and had determined that the Applicant poses a risk of harm to persons with disability. The Respondent advised the Applicant that his clearance was suspended under s 19 of the NDIS Worker Checks Act and that the Respondent was proposing to revoke his clearance. The Applicant was given 28 days to provide any information for the Respondent’s consideration. The Applicant submitted material, including letters of support from colleagues, his psychologist and his partner, in response to this notification.

17. On 15 October 2024, the Respondent notified the Applicant that it had issued an exclusion following a risk assessment, and that the Applicant was not allowed to work in the NDIS for five years in roles that require a clearance.

18. The Tribunal notes that the Respondent has used the terms “revoke” and “exclusion”. However these words do not exist in the NDIS Worker Checks Act. The terminology under the NDIS Worker Checks Act, which the Tribunal adopts in this decision, is the cancellation of a clearance or to cancel a clearance.

19. The Applicant requested an internal review which was completed on 15 October 2024 and affirmed the Respondent’s decision to cancel the Applicant’s clearance (“cancellation decision”).

20. On 13 January 2025, the Applicant filed an administrative review application seeking a review of the cancellation decision. The Applicant seeks that this decision be set aside.

21. On 15 May 2025, with the Tribunal satisfied that it had jurisdiction to review the cancellation decision under s 41(1)(d) of the NDIS Worker Checks Act, a final hearing was held. The Applicant and the Applicant’s previous employer (acting as a character reference) were cross-examined. Both parties made oral submissions.

22. At the conclusion of the hearing and without notice, the Respondent sought to make an application that the non-publication order that had been made in this matter by the Tribunal on 20 February 2025, be revoked. Directions were made by the Tribunal for material to be filed in relation to this application, with submissions closed on 5 June 2025.

Relevant law

NDIS worker screening scheme

23. The NDIS Worker Checks Act provides for the screening of workers in connection with the operation of the NDIS. It is part of a national federated screening scheme designed to minimise the risk of harm to persons with disability by preventing workers who pose a risk of harm from working in certain roles in the NDIS: GHT v Children’s Guardian [2025] NSWCATAD 16 at [12].

24. The NDIS worker screening regime has been brought into effect through relevant Commonwealth, State and Territory legislation and policy. In NSW, the Children’s Guardian is the responsible agency (Screening Agency) for implementing the NDIS worker screening scheme within NSW: FMZ v Children’s Guardian [2023] NSWCATAD 86 at [16].

Paramount consideration in the operation of the NDIS Worker Checks Act

25. Section 3 of the NDIS Worker Checks Act states that the health, safety and well-being of people with disability and, in particular, protecting them from abuse, violence, neglect and exploitation is the paramount consideration in the operation of this Act.

Risk assessment

26. A “risk assessment” is defined in s 13(1) of the NDIS Worker Checks Act as an assessment and determination by the Screening Agency as to whether the person poses a risk of harm to persons with disability.

27. Section 31(2) of the NDIS Worker Checks Act states that a reference in the Act to “risk of harm to persons with disability” is to be interpreted in accordance with the following principles:

1. the risk of harm must be a real and appreciable risk of harm

2. the risk of harm does not need to be likely or significant

3. the risk of harm need not arise from recent events.

28. Further, “harm” is defined in s 13(3) of the NDIS Worker Checks Act to include, but not be limited to:

1. personal harm, which means any detrimental effect on a person's physical, psychological, emotional or financial well-being

2. sexual harm, which means non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).

29. Section 14(3) of the NDIS Worker Checks Act provides that a risk assessment of the holder of a clearance is required if the Screening Agency becomes aware that there are circumstances that require a risk assessment.

30. The matters to be considered in a risk assessment are set out in s 16 of the NDIS Worker Checks Act and include:

1. the nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (a “relevant event”), and how it is relevant to NDIS work,

2. the length of time that has passed since a relevant event occurred,

3. the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event,

4. the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour,

5. the person's conduct since a relevant event,

6. all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work,

7. such other matters as the Screening Agency considers appropriate.

Cancellation of clearance

31. Section 20(1) of the NDIS Worker Checks Act provides that the Screening Agency must cancel the clearance of a person if the Screening Agency becomes aware that the person is a disqualified person or a risk assessment determines that the person poses a risk of harm to persons with disability.

Non-publication order

32. Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal).

33. The question of what is “desirable” is to be applied bearing in mind the principle of open justice and the rules of procedural fairness: Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27, [130].

34. It has been said in relation to non-publication orders that there is a sharp contrast between the relatively onerous requirement of s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to court proceedings and s 64(1) of the NCAT Act. The power in s 8 of the Court Suppression Act requires the court’s satisfaction about what is “necessary”, whereas the power under s 64(1) of the NCAT Act requires the Tribunal’s satisfaction about what is “desirable”: Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227, [20].

Administrative review

35. Section 63(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides that, in determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

36. Section 63(3) of the ADR Act provides that in determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

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

37. The Tribunal is required to base its findings of fact on logically probative material: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, [62], [68]; and Sullivan v Civil Aviation Authority [2014] FCAFC 93, [5]-[8], [15]-[17]. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

38. The standard of proof applicable to this review by the Tribunal is the balance of probabilities. These is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 (NSW) do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, these standards provide guidance for the Tribunal’s exercise of jurisdiction, especially in relation to any character issues for consideration.

39. In conducting a review, the Tribunal stands in the shoes of the administrator and makes the correct and preferable decision having regard to all relevant material. The Tribunal may have regard to material that was relevant at the time of the decision as well as any further material that is relevant at the time of the hearing. The issue for determination is what is the correct and preferable decision at the time of the Tribunal’s determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken: YG & GG v Minister for Community Services [2002] NSWCA 247, [25].

Material before the Tribunal

40. The following documents were before the Tribunal in the hearing:

1. Administrative review application filed by the Applicant on 13 January 2025 (Exhibit A1).

2. Affidavit by the Applicant filed on 15 April 2015 (Exhibit A2).

3. Witness Statement of a former colleague of the Applicant, who has worked with the Applicant in the disability sector since 2021, filed on 16 April 2025 (Exhibit A3).

4. Affidavit of a person who previously employed the Applicant in the disability sector and has known the Applicant for two years, filed on 16 April 2025 (Exhibit A4).

5. Applicant’s submissions filed on 16 April 2025 (Exhibit A5).

6. Documents filed on 12 March 2025 by the Respondent in accordance with s 58 of the ADR Act (“s 58 documents”) (Exhibit R1).

7. Respondent’s submissions filed on 30 April 2025 (Exhibit R2).

41. The following documents were filed after the hearing, in relation to the Respondent’s application to revoke the non-publication order:

1. Application for miscellaneous matters filed by the Respondent on 19 May 2025.

2. Applicant’s submissions filed on 29 May 2025.

3. Statement by Applicant filed on 29 May 2025.

4. Respondent’s submissions in reply filed on 5 June 2025.

Consideration

42. In considering what is the correct and preferable decision, the Tribunal is to determine whether the Applicant poses a risk of harm to persons with disability. This requires that the Tribunal consider the matters in s 16 of the NDIS Worker Checks Act for the purposes of a risk assessment.

43. Before the Tribunal considers the matters in s 16, the Tribunal will first address the conduct that resulted in the requirement for a risk assessment.

The conduct that resulted in the requirement for a risk assessment

44. The conduct that resulted in the requirement for a risk assessment fell into two categories:

1. That the Applicant had engaged in “unwelcome” sexual intercourse with Teacher 11 on School grounds in view of a student on School grounds and during School hours.

2. That the Applicant made verbal comments and physical gestures of a sexual nature to various other colleagues at the School on and outside of School grounds, and during and after School hours.

45. The Applicant admits that he engaged in sexual intercourse with Teacher 11 on School grounds, but asserts that it was outside of School hours and not in the presence of any students.

46. In Teacher 11’s interview during the Department’s investigation, she admitted that she and the Applicant were intimate on numerous occasions at the School mainly in the Applicant’s classroom at the end of the day at about 5:00pm. Teacher 11 stated that there were “lots and lots” of occasions between August 2020 and December 2020 when she and the Applicant were intimate in various locations.

47. Teacher 11 alleged that there was one occasion on 17 August 2020 between 1:00pm and 1:45pm where she was sexually assaulted in her classroom by the Applicant, and a student who would “always sit on a beanbag” was sitting on his beanbag watching an iPad during the assault. Teacher 11 did not report the incident to the Principal until eight months after she alleged it occurred.

48. The Department’s Investigator did not sustain the allegation that on, or about Monday, 17 August 2020, the Applicant engaged in sexual harassment of Teacher 11 in her classroom when he had unwelcome sexual intercourse with her.

49. However, after reviewing the Investigator’s findings, an Executive Director of the Department decided to sustain the allegation that the Applicant had engaged in unwelcome sexual intercourse with Teacher 11 on School grounds, likely in front of a student with disability. The Executive Director found the account of what occurred to be believable and compelling in both detail and consistency and believed that, on the balance of probabilities, the events are likely to have occurred as described by Teacher 11. The Executive Director found that Teacher 11’s disclosure of her relationship with the Applicant and her disclosures of sexual contact on School grounds held risk for her own employment and did not benefit her in any way.

45. Some, but not all, of the allegations about the Applicant making verbal comments and physical gestures of a sexual nature to various colleagues at the School, both on and outside of School grounds and during School hours, were sustained in the Department’s investigation.

46. The Department’s investigation involved interviews of several School staff, who were given pseudonyms in the investigation report included in the s 58 documents. The following allegations from the interviews were put to the Applicant during cross-examination:

1. Teacher 6 – stated that at School during the Christmas holidays in 2020 before School commenced in 2021 the Applicant said to her that he could not look her in the eye when they spoke because it made him think inappropriate thoughts. Teacher 6 stated that she was shocked that that the Applicant would say something like that and went and told Teacher 3, who consoled Teacher 6 as she was crying about it (in Teacher 3’s interview, Teacher 3 stated that Teacher 6 had told him that the Applicant had said that he couldn’t look her in the eye because he kept having dirty thoughts).

2. Teacher 6 – stated that a second incident occurred at the end of Term 2 during COVID at School around lunch time. Teacher 6 stated that the Applicant asked her if they could be “friends with benefits”. Teacher 6 said that she mentioned that the Applicant was married, and he said “Well, can I at least get a hug”. Teacher 6 stated that she went back to the classroom and told Teacher 8 and Teacher 25 who were both aware of “smaller” incidents where the Applicant said inappropriate things throughout the year.

3. Teacher 25 – stated that he recalled a time when Teacher 6 came to him upset and disclosed that the Applicant had asked her if she would like to be “friends with benefits” with the Applicant. Teacher 25 stated that he approached the Applicant about this matter and told him that it made Teacher 6 upset. Teacher 25 said that the Applicant claimed that his comment had been misunderstood and he did not mean it “that way”. Teacher 25 stated that the Applicant would “openly” make inappropriate comments at a local public venue where the School staff would often socialise after School hours. Teacher 25 said he could not recall specifically what the comments were, but many referred to Teacher 6’s “arse” and “what he’d like to do with it”.

4. Teacher 25 – stated that on a number of occasions when a young female staff member walked past – such as Teacher 6, Teacher 7 or Teacher 22 – the Applicant would tell everyone to “look at the ground” so as not to get caught staring at these women. Teacher 25 stated that this would happen walking around the School and at the park, when they would take the students for walks in groups, as well as while waiting for buses. Teacher 25 stated that the Applicant would make comments about female staff like “Phoaar, look at it/her”, and this would happen “anywhere at any time” as the Applicant would constantly make inappropriate comments of a sexual nature about female staff members.

5. Teacher 8 – stated that one of the most distressing situations was when he found Teacher 6 crying at the School after Teacher 8 had heard the Applicant “proposition her” by saying “words to the effect of being friends with benefits”. Teacher 8 said that he had a “very direct conversation” with the Applicant in which he “relayed in no uncertain terms that his behaviour would not be tolerated” and that if he did not stop, Teacher 8 would “take further action”. Teacher 8 also stated that the Applicant had confided to him words to the effect “he would have sex with [Teacher 6] irrespective of whether or not he was married”. Teacher 8 stated that the Applicant would make similar type comments about other female teachers, and that this was not confined to Teacher 6.

6. Teacher 9 – stated that during the middle of Term 2 in 2020 at about 9:30am, Teacher 9 was bending forward in a knee length skirt to speak with a student in a wheelchair, facing away from the window, and she turned and saw the Applicant knocking from outside her window and pretending to lick the window. Teacher 9 stated that the Applicant later told her that she should wear that skirt all of the time because her “arse looked hot”.

7. Teacher 15 – who was working in Teacher 9’s classroom, was asked about whether the gestures that the Applicant made as he walked past and looked in the window of the classroom may have been taken in a sexually inappropriate way. Teacher 15 stated that they could have been because this was “just because of the type of person he is”. When asked whether she had ever seen the Applicant flick his tongue or use his hands to make a shape of Teacher 9’s body, Teacher 15 stated “I can’t recall that but it wouldn’t have surprised me”.

8. Teacher 7 – stated that the Applicant would stand outside Teacher 9’s classroom and flick his tongue out at her through the window in a seductive way. Teacher 7 stated that she had seen the Applicant stand behind Teacher 9 and “almost configure her body, jokingly in a sarcastic way behind her. It was openly done in public”.

9. Teacher 7 – stated that during the Applicant’s time at the School, she had witnessed, heard and was personally feeling extremely uncomfortable by a number of comments made by the Applicant. Teacher 7 stated that on a number of occasions when entering room one and two during lessons, the Applicant would tell her how nice she looked in her outfit calling her “sexy”. Teacher 7 stated that the Applicant had openly said he loves the way she looked when she was bent over in tights. Teacher 7 referred to the Applicant initiating sexual conversations about himself and his relations with other women in the School, which concerned Teacher 7 because it was in the class in the presence of students.

10. Teacher 10 – stated that in April 2020, the Applicant brushed his arm against her bottom as she was reaching over the table cleaning up a puzzle. Teacher 10 said that she was wearing black tights at the time.

11. Teacher 3 – stated that the Applicant had “made several comments about her arse” (in relation to Teacher 7). Teacher 3 stated that when at the local public venue in late Term 1 or early Term 2 2020, when Teacher 10 dropped something and bent over to pick it up, the Applicant said “her arse looks fantastic in those tights”.

12. Teacher 22 – stated that she recalled that the Applicant would stare at female staff at School in a way that made her feel uncomfortable. When asked whether the Applicant had ever “tickled” her, Teacher 22 stated it “could have happened” but could not recall a specific instance. Teacher 22 stated that the Applicant had, on occasion, touched her on the shoulders and given her “weird hugs” while she was in the staffroom in greeting her and would say “Oh hi” in an exaggerated way.

13. Teacher 13 (Teacher 11’s husband, who taught at the School for a period of time) – stated that he became aware of Teacher 11’s affair with the Applicant on 20 March 2021. Teacher 13 said that Teacher 11 admitted the affair to him on the following day. Prior to her admission, Teacher 13 stated that he was suspicious of late-night conversations on the phone that Teacher 11 was having with the Applicant and their mutual friend, Teacher 1. Teacher 13 stated that on 20 March 2021, he set his phone to record and went out for the day. Teacher 13 stated that he captured a recording of his wife and the Applicant having phone sex and talking about other times. Teacher 13 stated that Teacher 11 admitted to the affair after Teacher 13 told her about the recording.

14. Teacher 5 (Principal) – stated that at the beginning of Term 2 2020, he was advised by Teacher 17 (Deputy Principal) that they believed that the Applicant and Teacher 11 were having an affair. Teacher 5 sought advice at the time and was advised that the matter was between two consenting adults and therefore was not reportable.

15. Teacher 2 – stated that in June/July 2020, he went to see Teacher 11 in her office during the morning and as he went to knock on the door, he “heard strange noises in the room” which he described as “like two people doing something they shouldn’t”. Teacher 2 said that he then walked away. Teacher 2 said that he saw the Applicant, later that day, after school, who said that he had a meeting with Teacher 11 and Teacher 14 where they had to shut the office door. Teacher 2 stated that he told the Applicant that when he left Teacher 11’s office, Teacher 14 was in the staffroom. Teacher 2 stated that the Applicant then alleged that Teacher 11 had been “propositioning” him while at School. The Applicant alleged that Teacher 11 had put her hands on her breasts in the classroom one time and “clambered” into his lap.

16. Teacher 3 – stated that he entered a classroom at 12:00pm during Term 2 2020 and observed the Applicant with his arms around Teacher 11’s waist and Teacher 11’s body pressed against his for about one minute. Teacher 3 handed Teacher 11’s mobile phone to her and then left the room. Teacher 3 stated that there was no one else in the room at the time.

17. Teacher 12 – stated that in early March 2021 between 5:00pm and 5:30pm on a Wednesday or Thursday, she had opened the door to a bathroom adjoining the Applicant’s classroom and saw the Applicant and Teacher 11. Teacher 12 stated that she witnessed the Applicant running into the bathroom and pulling up his pants and Teacher 11 was adjusting her clothes. Teacher 12 then walked out of the room as soon as she saw “something was happening”. In relation to the Applicant, Teacher 12 stated “I could see, as he was turning, I could see his bare bottom, as he was pulling up his pants and running away”. Teacher 12 stated that there were still other people on the School site at the time of the incident, and either Teacher 5 or Teacher 32 or the cleaners would normally lock up the School.

52. During cross-examination, the Applicant denied most of these incidents having occurred as alleged.

53. The Applicant did admit to having tickled Teacher 22 on her sides, below her ribs, on School grounds on one occasion in a joking way. The Applicant also admitted to this during the investigation, stating that he tickled Teacher 22 on one occasion and she smiled. The Applicant stated that they were friends at the time and at no point at the time or afterwards did Teacher 22 complain or give the Applicant the impression that she was made uncomfortable by his actions.

54. The Applicant did admit to the incident that Teacher 2 recalled and confirmed that Teacher 11 had jumped into his lap and kissed him and that this occurred during School hours.

55. In relation to what Teacher 3 alleged to have seen, the Applicant admitted that he and Teacher 11 engaged in the nature of an embrace in a classroom, but that Teacher 3 took it out of context.

56. The Applicant admitted to the incident in the bathroom on School grounds that Teacher 12 recalled, noting that it was after 5:00pm.

57. The Tribunal has considered the totality and cumulative effect of all the evidence, including multiple allegations from different School staff. The Tribunal has taken into account the fact that none of the School staff were cross-examined during the hearing, including Teacher 11. However, the Tribunal has placed significant weight on the interview records of the multiple School staff in terms of the consistency and similarity in the sexual nature of the reported conduct.

58. On the basis of the available evidence, the Tribunal is not able to make a positive finding that the Applicant sexually assaulted or engaged in “unwelcome” sexual intercourse with Teacher 11 in the presence of a student.

59. While the Applicant denies having sexual intercourse with Teacher 11 during School hours, there is evidence before the Tribunal that it is likely that this did occur. Even if it was not sexual intercourse, the sexual conduct between the Applicant and Teacher 11 was not isolated to outside of School hours, on the Applicant’s own evidence. It is apparent that the Applicant came to the notice of School staff in respect of this conduct both during and after School hours.

60. The Tribunal finds, on the balance of probabilities, that the Applicant did engage in multiple instances of sexualised behaviours in the form of sexual gestures and comments towards adult female School staff on and outside of School grounds during and after School hours. Multiple School staff/witnesses confirmed this conduct during the Department’s investigation.

61. The “conduct” of the Applicant that the Tribunal finds, on the balance of probabilities, did occur and refers to in considering the s 16 factors is as follows:

1. That the Applicant had sexual intercourse with Teacher 11 on School grounds after School hours.

2. That the Applicant engaged in sexual conduct (not including sexual intercourse) with Teacher 11 on School grounds during and after School hours.

3. That the Applicant made verbal comments and physical gestures of a sexual nature to School staff on and outside of School grounds, and during and after School hours.

The nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person, and how it is relevant to NDIS work

62. The conduct that led to the Respondent’s risk assessment was sexual in nature and was serious in terms of the potential harm towards the students with disability and School staff and occurred on School grounds over a period of at least eight months. The conduct stopped after the Applicant’s employment with the School was terminated in April 2021, following the discovery of the sexual relationship between the Applicant and Teacher 11 by Teacher 11’s husband in March 2021.

63. Such conduct is relevant to NDIS work, as exposure to such conduct can place a person with disability at risk of harm. NDIS participants may face difficulty protecting themselves from and reporting inappropriate personal or sexual behaviour committed towards them or in their presence. Sexualised behaviours and misconduct of this type is widely accepted to have the potential to result in significant and lasting psychological harm to victims, which includes witnesses to the incidents.

The length of time that has passed since a relevant event occurred

64. It is nearly four years since the conduct stopped occurring in April 2021. The Applicant states that his relationship with Teacher 11 ended in April 2021 and this was also the month that his employment at the School was terminated.

65. The consideration of this factor depends on what the Applicant can demonstrate he has done since the conduct and whether this is a mitigating factor to the assessment of risk, which is addressed below.

66. However, when considering what constitutes risk of harm to persons with disability, the risk of harm does not need to arise from recent events (NDIS Worker Checks Act, s 31(2)).

The vulnerability of any victim of a relevant event at the time of the event and the person’s relationship to the victim or position of authority over the victim at the time of the event

Teacher 11

67. One of the identified victims in this matter is Teacher 11, who alleged that she had been sexually assaulted by the Applicant on one occasion. The Applicant has consistently denied that he engaged in anything other than consensual sexual activity with Teacher 11. No action was taken by Police in response to Teacher 11’s allegations.

68. Teacher 11 and the Applicant have expressed conflicting views of who was the initiator of the sexual contact and whether either of them was taken advantage of by the other. The Applicant contends that it was Teacher 11 who always initiated physical contact with him, but that he was not saying this to absolve himself of the part he played in the relationship, but to highlight that Teacher 11 would “dictate the pattern and place of the relationship”.

69. In his Affidavit, the Applicant states that he observed that Teacher 11 was being bullied by other School staff. The Applicant states that he felt that he was being bullied by School staff and so could identify with Teacher 11’s experience. The Applicant states that he formed a close relationship with Teacher 11 during 2020, which progressed to a sexual relationship in or around August 2020. The Applicant states that their experience of being bullied by the same group of people “led to us becoming closer and supporting each other. Our fondness for each other grew from there”.

70. The Applicant states that in March 2021, Teacher 11’s husband had confronted the two of them about having an affair and had threatened to have the Applicant fired and tell the Principal, Deputy Principal and the Department. The Applicant states that in early April 2021, he tried to “block” Teacher 11 from his phone to stop the relationship. The Applicant stated that Teacher 11 then emailed him, asking him to make contact with her, which he did at a sports field near the School. The Applicant stated that, after this, the relationship continued sporadically until it ended shortly before the allegations were raised and his employment with the School ended on 26 April 2021. The Applicant states that since this time he has re-dedicated himself to his partner.

71. The Applicant states that the sexual relationship that he had with Teacher 11 was consensual and she was an adult. The Applicant states that she was a member of the School executive and he was a Classroom Teacher and that she was in a position of authority over him, even if she did not manage his day-to-day affairs.

72. Teacher 11 was younger than the Applicant and the Applicant had more decades of work experience. Teacher 11’s position at the School meant that if the affair was discovered, she was at risk of losing an executive position.

73. Teacher 11 did not provide any direct evidence in the proceedings, which could be tested, and much of the Department’s transcript of interview with Teacher 11 was redacted.

74. The Applicant included an email exchange between Teacher 11 and himself in April 2021, in which the Applicant agreed to unblock Teacher 11 from his phone (after she asked) and asked her where she wanted to meet (after she requested to meet with him). Teacher 11 also stated in her emails that she was not putting pressure on him, and she was respecting what he had asked – that they stop.

75. The Tribunal accepts the Applicant’s submission that the sexual relationship was consensual. The Tribunal does not have sufficient evidence before it to be able to make a positive finding that either the Applicant or Teacher 11 was a victim of the other’s conduct.

Other School staff

76. There were other School staff, including females who are decades younger than the Applicant, who alleged during the Department’s investigation, that the Applicant made verbal comments and physical gestures of a sexual nature towards them, which were inappropriate or upset them. Two of the male staff stated, during the Department’s investigation, that they spoke directly to the Applicant in defence of the female Teachers who had experienced the conduct.

77. While the Applicant was not in a position of authority over these other School staff, the Applicant was much older and more experienced as a teacher, which may have created a power imbalance.

78. The Tribunal considers that in the circumstances, given their age, inexperience and apparent inability to speak up for themselves, that the younger female Teachers were particularly vulnerable to the Applicant’s conduct

Students

79. The Tribunal does not have sufficient evidence before it to be able to make a positive finding that a student was exposed to the inappropriate sexualised behaviours and sexual conduct of the Applicant.

80. However, the Applicant’s verbal comments and physical gestures of a sexual nature towards other School staff occurred on School grounds during School hours. A number of the School staff who were interviewed during the investigation stated that the Applicant’s conduct occurred in the presence of a student.

79. The Tribunal finds that the Applicant’s conduct did place the students with disability at risk of exposure to his inappropriate sexualised behaviours and sexual conduct. The students with disability are in a significantly vulnerable position, particularly those students who are non-verbal and have difficulty with mobility and cannot easily deal with unwanted situations.

The person’s criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour

82. The Applicant has no criminal history, and no known history of misconduct or other relevant history in terms of any pattern of concerning behaviour.

83. However, the conduct occurred consistently between at least August 2020 and April 2021. The Tribunal finds that the Applicant’s conduct towards School staff between August 2020 and April 2021, which placed students with disability at risk of being exposed to, demonstrated a pattern of concerning behaviour over at least a period of about eight months.

The person’s conduct since a relevant event

84. The Applicant states that since the conduct he has:

1. Taken responsibility and apologises for making “a very bad choice to enter into a workplace affair and perform sexual acts with my colleague on the grounds of my workplace”.

2. Worked on rebuilding his relationship with his family and has the support of his partner.

3. Engaged with a psychologist.

4. Since January 2022, worked in the disability sector with a number of different organisations, without any known complaints and with positive character references from two people who have observed him in the work environment.

85. The Applicant states that the “error” that he made will not happen again, and he has accepted the consequences of those in terms of his teaching career.

86. The Tribunal accepts that the Applicant has demonstrated some degree of insight and remorse in relation to the admitted conduct of engaging in a sexual relationship with Teacher 11 on School grounds. It is not clear to the Tribunal, however, why the Applicant has throughout his evidence focused on shifting responsibility for the initiation of the sexual conduct to Teacher 11, to the point of suggesting that Teacher 11 seduced him. This is at odds with the Applicant claiming to have accepted full responsibility and apologising for the conduct, which he admits was his choice to engage in.

87. The Applicant does not admit or show any insight into how this conduct placed children with disability at risk of harm.

All other circumstances in respect of the person’s criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work

88. The Applicant’s conduct occurred consistently between at least August 2020 and April 2021, even after Teacher 11’s husband confronted the Applicant in March 2021 and threatened to tell the School executive and the Department about the Applicant’s conduct. The Applicant’s conduct involving other School staff continued after two male teachers confronted him about it. The conduct involving Teacher 11 and the conduct involving other School staff ended only when the Applicant’s employment with the School was terminated. If the Applicant’s employment had not been terminated, the Tribunal is not satisfied that the Applicant’s conduct would have stopped. In this regard, given the Applicant’s lack of demonstrated insight into how his conduct placed children with disability at risk of harm, the Tribunal is not satisfied that such conduct by the Applicant would not reoccur in the future.

Such other matters as the Children’s Guardian considers appropriate

89. The Respondent made no submissions in relation to this factor.

Assessment of risk

90. The health, safety and well-being of people with disability and, in particular, protecting them from abuse, violence, neglect and exploitation is the paramount consideration in the operation of the NDIS Worker Checks Act (NDIS Worker Checks Act, s 3). People with disability experience similar vulnerability and need for protection from abuse, violence, neglect and exploitation as children. The assessment of “risk to the safety of children” in s 5B of the Child Protection (Working With Children) Act 2012 (NSW) and “risk of harm to persons with disability” in s 13(2) of the NDIS Worker Checks Act involve a “real and appreciable risk”. The Tribunal is therefore guided by the authorities in relation to the assessment of a “real and appreciable risk” in the context of Working With Children Check (WWCC) clearance reviews.

91. The Respondent referred the Tribunal to Children’s Guardian v CFW [2016] NSWSC and other cases and submitted that where the Tribunal is unable to make a positive finding, if there is nonetheless a “lingering doubt or suspicion” which remains, then such doubt or suspicion does not count against an applicant (for a WWCC) and nor is it fatal (CFW, [16]), rather it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the application poses a risk of harm to persons with disability. The Respondent submitted that the language of “lingering doubt of suspicion” or the notion that such “counts against” an application should not be applied as if it were a proposition of law, and it particularly unhelpful in cases involving multiple disparate allegations of misconduct. This is because it tends to direct a decision-maker to compartmentalise the allegations and deal with each individually.

92. In CFW, in reference to a matter concerning a WWCC clearance, the Supreme Court set out an approach to assessing risk to the safety of children, including when a positive finding as to any alleged acts of wrongdoing cannot be made. At [14]-[17], the Court stated that:

“14. The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has ‘no hesitation in rejecting the allegation as groundless’. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a ‘decisive impact’ on the outcome of the application.

15. The second proposition is that, even no such ‘positive finding’ can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is ‘groundless’. ...

16. Even if not positively satisfied that the acts occurred on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance.

17. A court or tribunal may make a finding of ‘real and appreciable risk’ even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left ‘open’, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.” (citations omitted)”

93. In CXZ v Children's Guardian [2020] NSWCA 338, the Court of Appeal considered CFW and the three-step approach drawn from [14] to [17] of that case. The Court of Appeal stated at [57]:

“None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

94. The approach in CXZ has subsequently been followed in a number of recent Tribunal cases concerning risk to children:

1. GDB v Secretary, Department of Education [2025] NSWCATAD 96 at [128] – “In carrying out its fact finding function, the Tribunal should take into account the circumstances surrounding the particular incident and the course of conduct.”

2. GQT v Children's Guardian [2025] NSWCATAD 109 at [72] - “The Tribunal, after reviewing the evidence, is unable to be satisfied as to the truth of the allegations. The Tribunal must therefore consider whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children, including based on any other evidence that indicates such a risk.”

3. GLB v Children’s Guardian [2025] NSWCATAD 126 at [95] - “Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither “well founded” nor “groundless”, the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant.”

95. The Tribunal has made findings at [61] above as to the Applicant’s conduct. Exposure of persons to this conduct, particularly persons with disability who are vulnerable and require protection from abuse, violence, neglect and exploitation, is widely accepted to have the potential to result in significant and lasting psychological harm. The Tribunal is satisfied that this conduct poses a risk of harm to persons with disability.

96. The Tribunal is of the view that the conduct that the Applicant has admitted to, in and of itself placed children with disability at the School at risk of harm in terms of the potential for being exposed to the Applicant’s conduct.

97. The Tribunal is of the view that the Applicant’s conduct was reckless behaviour by the Applicant, in a context where he was expected to act with integrity, professionalism and respect towards not only his colleagues, but the children with disability that were in his care and supervision.

98. The Tribunal has assessed that the risk of harm to persons with disability posed by the Applicant is real and appreciable. While the conduct does not need to be recent, significant or likely, the Tribunal has found that it is recent, serious, and likely to reoccur. The Tribunal is not satisfied that what the Applicant has done since the recent events mitigates the risk such that the risk is not real and appreciable. The Applicant’s lack of remorse and insight into the risk of harm his conduct poses to persons with disability is of significant concern.

99. After having considered the s 16 factors and adopting the approach in CXZ in relation to the assessment of risk, the Tribunal finds that the Applicant poses a risk of harm to persons with disability.

Non-publication order

100. A non-publication order has been in place for this matter since 20 February 2025 because the Tribunal was concerned that the identity of the victim or witness (including a child with disability in a school setting) could be disclosed.

101. The Respondent seeks to revoke this order on the basis that the principle of open justice is to apply with respect to proceedings brought under the NCAT Act and the NDIS Worker Checks Act (Olunwabusor v Children's Guardian [2023] NSWCATAD 199, [83]; Saba v Children's Guardian [2023] NSWCATAD 156, [90]).

102. As stated by the Tribunal in Saba at [94] - [95]:

“94. The question for the Tribunal, when considering an application for a non-publication order under s 64(1) of the Civil and Administrative Tribunal Act 2013, is whether the Tribunal is satisfied that the making of the order sought is desirable ‘by reason of the confidential nature of any evidence or matter or for any other reason’.

95. The Tribunal considers that the name of a person who brings an application under the NDIS Worker Checks Act is expected to be disclosed unless there is a good reason for the making of a non-publication order. The applicant’s prior criminal proceedings were not the subject of a suppression order. The risk of embarrassment or humiliation is not a good enough reason (see Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]).”

103. In the Applicant’s Affidavit in response to this application for revocation of the non-publication order, the Applicant attests that:

1. His surname, which is shared by two of his children, is not a common surname.

2. One of his children has significant mental health and physical health issues.

3. He is genuinely concerned that the publication of his name will unfairly impact on his child and could become the subject of social media bullying conduct and negatively impact on his child’s mental health.

4. One of his children attends a high school that is not far from the School in this matter. The Applicant believes that the publication of his name will spread to the wider school community and adversely affect his child’s schooling.

104. This matter has involved children with disability and multiple School staff, including Teacher 11 who has alleged sexual assault and other School staff who have alleged other sexualised conduct by the Applicant. The Tribunal is of the view that these, in addition to the concerns raised by the Applicant, are good reasons to warrant confidentiality and that it is therefore desirable to maintain the non-publication order.

Conclusion

105. As the Tribunal has determined that the Applicant poses a risk of harm to persons with disability, it follows that the correct and preferable decision is to affirm the decision under review.

106. As the Tribunal is satisfied that it is desirable to maintain the non-publication order, the Tribunal refuses the Respondent’s application for revocation of this order.

Order

107. The decision under review is affirmed.

108. The Respondent’s application for miscellaneous matters filed on 19 May 2025 is refused.

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

Registrar

Decision last updated: 04 July 2025