Master Glass Facades Pty Ltd v Pollak

[2017] NSWCATAD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CKK v Children’s Guardian [2017] NSWCATAD 45
Hearing dates:	5 July 2016
Date of orders:	31 January 2017
Decision date:	31 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby Senior Member N Hiffernan General Member
Decision:	(1) The decision of the Children's Guardian dated 19 January 2016 to refuse to grant the applicant a Working with Children check clearance is confirmed (2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person
Catchwords:	Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- Applicant found by reporting body to have engaged in sexual misconduct - whether Applicant poses threat to safety of children
Legislation Cited:	Child Protection (Working with Children Act) 2012 NSW Crimes Act 1900 NSW Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category:	Principal judgment
Parties:	CCW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Singh (Applicant) A Douglas-Baker (Respondent)   Solicitors: Opal Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610050
Publication restriction:	See Order 2

reasons for decision

The application

1. On 18 November 2014 the Applicant, who is referred to in this decision as CKK, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.

2. The Respondent conducted a risk assessment as required under legislation and determined that CKK is a risk to the safety of children and refused to issue a WWCCC. The Respondent notified the Applicant of this decision on 19 January 2016.

3. In an application filed on 25 January 2016 pursuant to s.27(1) of the Child Protection (Working with Children) Act, CKK seeks a review of the decision of the Children’s Guardian to refuse him a WWCCC.

4. There is no dispute that the Tribunal has jurisdiction to hear and determine the application.

Assessment requirement

5. Section 14 of the Child Protection (Working with Children) Act 2012 establishes that an “assessment requirement” arises where any of the matters specified in Schedule 1 of that Act apply.

6. Schedule 1 of the Child Protection (Working with Children) Act includes circumstances in which a person has been the subject of a finding by a reporting body that he or she engaged in sexual misconduct committed against, with or in the presence of a child, including grooming of a child.

7. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. As noted above, having conducted a risk assessment the Children’s Guardian formed the view that CKK did pose a risk to children and refused to grant him the WWCCC.

The trigger matters

8. The allegations that comprise the trigger matters were investigated by an investigator (the investigator) for the Association of Independent Schools (AIS). In a report dated 7 April 2015 the investigator concludes that the allegations are sustained. The allegations as set out in that report are that between 7 April 2014 and 1 June 2014 CKK, who at that time was a teacher at the school attended by the alleged victim (Miss A (first name) X (last name)), “engaged in behaviour that constitutes sexual misconduct – crossing professional boundaries, in that he engaged in an inappropriate and overly personal or intimate manner towards the alleged victim (Miss X) that he knew or ought to have known, was unacceptable”.

9. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian. (section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]).

10. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal or of information that would lead to the identification of those persons.

The relevant law

Child Protection (Working with Children Act) 2012

11. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance.

12. The Act was amended by legislation that came into force in November 2015. However CKK’s application was made prior to the commencement of the amended legislation and the Tribunal applied the legislation as it stood at the time of the application.

13. Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.

14. The words “well-being” of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children.

15. The Act adds to those words, that “in particular” protecting children from “child abuse” is the paramount consideration.

16. The Act does not define “abuse”. However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows:

"the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."

17. Section 4(1) of the Family Law Act 1975 defines "abuse” as including:    

“causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence”

18. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from “any possibility of abuse”. At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant:

“whether, in all 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 a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.”

19. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).

20. Taking into account all of these matters, it is our view that the meaning of “risk” is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that is, a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child.

21. Subsection 15(4) of the Act sets out the factors that the Children’s Guardian may consider when making the assessment. These are:

1. The seriousness of any matters that caused the assessment in relation to the person,

2. The period of time since those matters occurred and the conduct of the person since they occurred,

3. The age of the person at the time the matters occurred,

4. The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

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

7. The person’s present age,

8. The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred,

9. The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

10. Any information given in, or in relation to, the application,

11. Any other matters that the Children’s Guardian considers necessary.

22. The Tribunal’s review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are:

1. 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,

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

3. The age of the person at the time the offences or matters occurred,

4. 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,

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

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

7. The person’s present age,

8. The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

10. any information given by the Applicant in, or in relation to, the application,

11. Any other matters that the Children’s Guardian considers necessary.

23. Subsection 27(4) of the Child Protection (Working with Children Act) 2012 requires that an Applicant must fully disclose to the Tribunal any matters relevant to the application.

24. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an Applicant but to minimise possible risks to the safety of children.

25. In this administrative review, neither party bears the onus of proof. There is no presumption that the Applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person.

26. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account:

1. the nature of the cause of action or defence, and

2. the nature of the subject-matter of the proceeding, and

3. the gravity of the matters alleged.

27. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

[31] 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.”

[32] 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).

[33] 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.

28. The Tribunal notes that in this matter, unlike the matter in BKE v Office of the Children’s Guardian, the Applicant does not bear the onus of proof.

29. The approach outlined above was considered in respect of an application under s.27 (1) of the Child Protection (Working with Children) Act in the recent matter of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that matter Harrison J considered an appeal by the Children’s Guardian against a decision of the Tribunal. His Honour decided to set aside the orders of the Tribunal and remitted the matter to the Tribunal for consideration to be dealt with according to the law. In reaching his decision His Honour states:

23 In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the “possibility” of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant “remain[ed] open”, the Tribunal should then have asked itself how that “open” conclusion, together with all of the other material before it, bore upon the question of risk

…

24 That was the point made by Buss JA in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [85], where his Honour said in the context of the equivalent Western Australian legislation:

“[85] Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an ‘unacceptable risk’ of the kind I have described… The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an ‘unacceptable risk’, to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.”

…

30 There is nothing in the Tribunal’s reasons to indicate that it approached its task in the manner identified in these authorities. Its “open conclusion” suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or “inappropriate conduct”. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. This is particularly so having regard to the Tribunal’s earlier observation at [97] that the Local Court found that the defendant’s actions were “very suspicious”, notably an observation that the Tribunal did not question.

31 In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be “open”. In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act.

…

48 The possibility that the defendant had engaged in the relevant criminal or inappropriate conduct … were necessarily bound up in the mandatory consideration of the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition … That demonstrates the importance of undertaking the analysis identified by Buss JA in Grindrod (No 2): weighing all such reasonable suspicions in the process of determining what might happen in the future. The Tribunal instead put to one side its “open” finding and correlative suspicions and thereby failed to satisfy the statutory command that it “must consider” the matters identified in s 30(1).

The Evidence

30. The Applicant filed the following documents in support of his application:

1. The application filed on 25 January 2016

2. An affidavit of CKK dated 26 April 2016 with annexures

3. An affidavit of Mr Sam Borenstein, a clinical psychologist, annexing Mr Borenstein’s report dated 24 April 2016

4. A Certificate attesting to CKK’s participation in workshop on Child Safe Principles dated 22 June 2016

31. The Respondent filed:

1. A bundle of documents pursuant to s.58 pursuant to s. 58 of the Administrative Decisions Review Act 1997 filed on 11 March 2016 (s.58 documents)

2. A further bundle of documents filed on 25 May 2016

3. A further bundle of documents filed on 1 July 2016

32. Counsel for the Respondent objected to the admission of certain material annexed to the affidavit of CKK, being a statement by his wife (Mrs CKK) which was annexed as annexure D to an affidavit filed by CKK in the Fair Work Commission, itself annexed to the affidavit dated 26 April 2016.

33. The basis of the objection was that despite notice to CKK’s solicitor that Mrs CKK would be required for cross examination at the hearing she was not made available and therefore she was not able to be questioned regarding the contents of her statement.

34. Counsel for the Applicant submitted that Mrs CKK is not a witness in the proceedings and could not be required for cross examination and that, had the Respondent required her attendance, it should have issued a subpoena for her attendance. He further submitted that a document similar to the statement was submitted into evidence by the Respondent in the s.58 documents.

35. Counsel of the Respondent further submitted that:

1. The inclusion of documents in the s.58 bundle was in the context of providing the Tribunal with the material considered by the Children’s Guardian, and not as proof of the contents of those documents.

2. Even though Mrs CKK was not a witness in the proceedings, as the applicant was seeking to rely on her statement, she should have been made available for cross-examination and as she was not available the Tribunal should not have regard to her statement as proof of its contents.

36. The Tribunal was of the view that the statement of Mrs CKK was relevant to the matters before it and therefore should be admitted. However the Tribunal was of the view that the weight that can be given to the statement is limited because Mrs CKK was not available for questioning as to its contents.

Consideration

Matters taken into account by the Children’s Guardian

The seriousness of the trigger matters

37. The Children’s Guardian was of the view that the matters that caused the assessment were serious in that they involved the sending of “inappropriate and persistent emails” and continuing to do so despite a response from the student that she felt “very uncomfortable” and advised CKK to “bear in mind” that he was a teacher. It was further alleged that CKK obtained the student’s home telephone number and address from school records and allegedly called her home number.

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

38. The Children’s Guardian expresses the view that little time had passed since the trigger matters.

The difference in age between the victim and CKK and the relationship between them

39. At the time of the alleged matters CKK was 46 years of age and Miss X was 15-16 years old. The Children’s Guardian was of the view that the age difference was significant as was the fact that CKK was in a position of authority over Miss X.

The likelihood of any repetition by CKK of the conduct and the impact on children of any such repetition

40. The Children’s Guardian is of the view that given the relative recency of the allegation in addition to the minimal information regarding remedial action taken by CKK, the likelihood of repetition could not be precluded, and if it were to occur it could have a detrimental impact on the safety, wellbeing and welfare of any child who might be exposed to it.

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

41. The Children’s guardian was of the view that:

1. A reference from a former work supervisor does not constitute a work reference because it is not endorsed by CKK’s employer.

2. CKK denied sending the emails except for two sent on 1 June 2014 and Mrs CKK said that she sent the other emails to gauge the extent of CKK’s relationship with Miss X and the student’s sympathy or affection for CKK. However despite Miss X stating, “do not respond to this email” a further 13 emails were sent which appear to have been sent to re-establish a positive relationship.

3. The AIS investigation concluded on the balance of probabilities that CKK was the author of the emails which were “of a highly inappropriate, overly personal and intimate nature and appeared to be written with the intent of establishing an improper relationship with a 16 year old student”.

4. CKK’s solicitor advised that in a written judgement the Fair Work Commissioner “did not consider that CKK’s claim was so lacking in merit or substance as to be not be reasonably arguable”. However the matter considered by the Commissioner was one of costs and was not one that overruled the allegations or considered risk to children.

42. The Children’s Guardian concludes that whilst acknowledging that there have been no previous or further allegations made against CKK, the allegations are considered to be recent and serious and the information provided by CKK does not address the risks that CKK poses to the safety of children should he engage in child related work.

Consideration of s.30 (1) matters

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

43. The allegations against CKK are that between 7 April 2014 and 1 June 2014 CKK engaged in behaviour that constitutes sexual misconduct–crossing professional boundaries, in that he engaged in an inappropriate and overly personal or intimate manner towards a school student Miss X.

44. The alleged emails and other behaviours are detailed below. The email quotations below retain the abbreviations, grammatical and spelling errors of the reported emails.

1. During the last week of term one, commencing on 7 April 2014 CKK sent an email with words to the following effect:

Hello ‘A’. I hope you are well. I must tell that I am sick and not well. It is very hard as my family are treating me very badly and my sister is no longer talking to me. My life is not good and I am finding it very hard with my illness.

2. On 9 April 2014 at lunchtime CKK approached Miss X when she was with her friends and said words to the effect of “‘A’, can I see you" and then walked back to the science lab. When Miss X approached the lab with a friend present he told her that he would get past exam papers to help her with her exams.

3. On 10 April 2014 at 11:36:47 he sent an email to Miss X stating:

‘A’, many Congratulations on winning award 2day, sorry I couldn’t talk about this in class, with a thought you would mind it. May Allah Subhan give you a lot of success n happiness in your future life. Pl try to share n help the people if you find any around u in trouble or in grief or if u can do anything for them. We live for ourselves but there is great pleasure if we try to do something for others even for someone with ‘no name relation’. If u want to mind u can, u know me I just say what I want to say. I am really angry with u for your attitude and specially for hiring bodyguards and when u said u didn’t check ur email any way. U didn’t ask me but I am telling you things r still the same if u get chance pl pray for me this request is about my personal life. From job point of view school has signed an agreement with me for one year. Now period 4 is going to start I need to go.

4. On 16 April 2014 at 9:20:37 he sent the following email:

‘A’, sorry for disturbing u, I spoke to Mr (name of school Principal) to leave both 11 n 12 Bio he said then u will have to leave this school as already he is organising new chem teacher for ur class after complaints from (names of students) parents. I spoke to ur dad yesterday just to make ur side clear if in future after my leaving he or ur brother will heard any story they will not believe. I don’t know what to do on the other hand u r not saying anything which is killing me, if Mr (school Principal) will not agree then I will resign today or on Monday 28th when teachers will be back. Last request pl tell me u told (friend’s name) mom or (friend’s name) (name of friend) said as there are a few rumours with the (name of school) staff importantly a few things which are only between u and me, pl let me know if you did I will leave this school quietly n never disturb u in life but u will stay somewhere inside me and if (name of friend) n her mom did I will fix the problem before or after resign. M starting tutoring (name) sis if you like can come for a few min to see me I don’t know where all this will end up.

5. On 16 April 2014 at 17:31 he sent an email to Miss X in which he suggested that she is at fault for him not teaching the year 11 biology class. The contents of the email were in part as follows:

I had a very long meeting with Mr (school Principal) about (name of school) happenings, may be u were feeling shy to respond to my emails but you did very bad not only for me but to yourself and other 11 Bio students.

Now with broken heart for you I have left year 11 bio …

… but all credit goes to Miss X for cutting my own hands …

… I will be behind the scene I decided that just for you Miss ‘A’ and is really pinching me inside if get the chance tonight when you go to bed pl think what u did, I know your are a girl but on one side you want to stand shoulder to shoulder to man an on other side u r perspired with shyness. ..

…

‘A’ I am already working on your half yearly keep it with you I will give you before that will give you a great push and I am setting your both tasks pl show me before final submission as drafts.

Mr (school principal) has taken yr 11 Chem for Tassie and given to some other teacher, he wanted me but I refused for MMMMMMMMMMMSSSSSXXXXX XXXXX XX. I have more than one 100 bad words for you may be next month on (date) as you will hit 16 and become a bit mature, I have more stuff for Chem for you pls leave shyness on the side and try to believe me …

… so many people know me in (suburb) area as tutor, if you ex fellows from other school are contacting me from …school why not you.

Today Mr (school principal) has given me permission to help Chem students I started today with yr 12 for you again these idiots will jump in.

I don’t know you will be interested or not but if you like on not being satisfied with other teacher you can ask principal along with other students to take me back and looks rare chances for (Miss X) to do so but again pl try to become mature quickly.

Honestly I have your dads mob as well but I tried home no, may be will able to talk to you, but when dad said hello I lost my dream

With many bad words for you.

6. On 5 May 2014 at 18:31 CKK sent an email to Miss X requesting that she return her homework task, also mentioning his health. He made the following comments:

‘A’ before I leave I will prove you are the most pious, gentle, clean and intelligent girl of all times at (name of school)

‘A’ no-one can give surety about anyone as I do for u

As u r not angry with me I don’t care about anyone else

… tell me if anyone has trouble about my visit in ur class, don’t worry about these barking people at all, I don’t know you were looking a bit nervous.

I know you will pray for me as my parents do somewhere in the sky.

7. On 7 May 2014 at 19:52 he sent an email to Miss X requesting that she see him and said:

For me (name of school) is ‘A’, simple if u will not come then I will come to see u every day in ur class, if they want to die with jealousy let then die.

8. On 7 May 2014 at 20:05 he sent an email to Miss X stating:

‘A’ Can I ask u one thing? Is there no relation of respect n honour, do everybody think from same angle with dirty mind, only male n female sort of thing, what’s that? But I don’t, if they do let them go to hell.

9. On 9 May 2014 at 16:57 he sent an email with the following comments:

What level of respect I gave you I cant believe all, how I did that

biggest mistake of my life, where all of my intelligence was gone, ‘A’ Bibi you have proved that you are worse than prostitutes, I heard even prostitutes after ripping off they look after their customers.

Allah Subhan will never forgive you.

I don’t want to see ur face again n don’t want to hear or don’t want to receive ur email in my life. My first judgement was right, that u r selfish, but how I was trapped, I don’t know. With how many people I fought for u, ur scholarship, ur marks? But u can do everything for u n ur interest, no only reset everything but also can MARK yourself. I hate you, I hate you otmai, just leave me alone n go away from my life, just away n never come back, just go

10. Around mid May 2014 CKK entered the maths classroom of Miss X, acknowledged her teacher and placed an envelope containing past exam papers on her desk.

11. On 16 May 2014 at 16:08 CKK sent an email to Miss X enquiring about her change in behaviour to him stating:

‘A’, since last a few days you are behaving differently. R u ok? I tried to talk to you in stairs yesterday and in corridors today but you looked like stranger, I don’t understand…

12. On 16 May 2014 at 20:19 CKK sent an email to Miss X asking her to reply and expressing concern about her lack of replies.

13. On 17 May 2014 at 10:16 CKK sent an email to Miss X stating that he would contact her father to get answers to his questions. He also stated:

I want to add here only one thing m not a kindy n can sense something what u can’t.

14. On 18 May 2014 at 03:31 an email sent from the account of CKK but said to be from his wife, asks Miss X to refrain from contacting or seeing CKK. The email refers to CKK as “your lover Sir (last name of CKK). The parts of the message in English suggest that the writer believes that CKK and Miss X are in a relationship and is demanding that it cease.

15. On 20 May 2014 at 07:48.03 CKK sent an email which states:

‘A’ a few min before I contacted u but couldn’t talk as my words were not doing to help me, A it’s easy for people to leave but very hard who loose them as my parents brother and sis did, I can’t stop u, but pl tell me my sin before u go.

16. On 20 May 2014 at 20:56 CKK sent Miss X an email stating:

‘A’ Two times in a day contacted u but couldn’t talk, only one reason behind is “The fear to loose u n that’s the fear which I Can’t afford, M broken inside, why r u testing me, A what I did n why r u punishing me so severely, pl an me, I Contacted ur dad two times on sat but mob was switched off, on sun was thinking to visit ur house but then stopped my self, pl tell me why this ‘A’ is not the ‘A’ I know, pl

17. On 21 May 2014 at 16:19:51 CKK sent an email to Miss X wishing her a happy birthday and advising of his impending chemotherapy treatment for brain cancer. The email indicated that he was angry with her for not saying Salaam to him in the prep room. He said that he would keep a photograph of Miss X taken at school and take it along for his upcoming hospital stay.

18. On 25 May 2014 at 13:26:50 CKK sent an email to Miss X wishing her a happy birthday.

19. On 25 May 2014 at 16:38:02 CKK sent an email to Miss X which includes the following statements:

… I realise u will be very busy today, of course it was very crucial and hard time of my life, I waked after about 18 hours of treatment, everything was there but (Miss X) did not even sent me a text or email to ask me … what I have assessed there is definitely a lot, that makes you so angry u did not even asked me … I was not there to take panadol tab or because of the flu I think was some thin serious … n even I was angry with u but u were there actually in my dream I forgot that I was angry with u but when I waked up the story was different a (A) is angry with, ‘A’ for the sake of Allah Subhan tell me what went wrong did (names of students) or any body said anything, u did not say me even salaam during the last few contacts, even when u returned the task, yeh task problem is over nothing to worry about, I managed all but he realised questions abut the half yearly if 12 bio students. What I did wrong ‘A” that u told (name) that )(name) gave book as he will be resigning soon, this happened just two days before my treatment as he told (name) and (name) told the principal n he called me in his office at 6:30 pm

I am worried about ur cold behaviour ‘A” I don’t have knowledge of hidden things there is something in ur mind that’s why u r doing all this, for the sack if the most lovely thing or person of ur life pl tell me, last week end ur classfellow dad (name) invited me to have a cup of tea.

… u will have to explain me everything u might be thinking me as foolish or mad, yes I can accept the second option by I m not foolish. ‘A’ for the sack of Allah Subhan pl tell me n don’t be angry wit me n come back pl.

20. On 26 May 2014 at 07:44:50 CKK sent Miss X an email wishing her luck in an exam that day.

21. On 26 May 2014 at 21:14 CKK sent Miss X an email wishing her luck in her exams and saying that he liked discussing her “everywhere”. The email goes on to express a fear of losing Miss X, describing her as beloved one and saying that she will always live with him somewhere “in a very pious relation”. His message asks Miss X not to deny that she was the daughter of his best friend.

22. On 28 May 2014 at 15:48 CKK sent an email to Miss X discussing the day’s chemistry exam and mentioning calling her home telephone.

23. On 29 May 2014 at 07:08:30 CKK sent an email to Miss X wishing her luck in her biology exam.

45. Miss X did not give evidence at the hearing. In an email dated 13 June 2014 addressed to the school principal she makes comments including those to the following effect:

1. CKK first emailed her about usual school work and she was appreciative of his help. The inappropriate emails commenced in April 2014.

2. After she had few days off school he started emailing her asking if she was leaving school and talking about his personal life which made her uncomfortable. She started avoiding him in class which was difficult because she sat in the front of the room. He would call her to his room during the lunch break and because she was uncomfortable with him she always ensured that she had friends with her and that is why he refers to her “bodyguards” in an email.

3. At a parent-teacher interview he obtained the telephone number of her father. He also had her home phone number and address.

4. He started calling the home telephone to ask why she was not at school. Later, when he was no longer her biology teacher he started getting frustrated and tried to talk to her at school and used school work as an excuse to talk to her.

5. When she had not interacted with him he said he wanted to go to her house and he tried to call her father, who was overseas and did not receive the calls.

6. He tried to make her feel sorry for him by telling her that he was very sick and she was adding to his illness by ignoring him. This stopped her from taking action because she felt cruel. However she did not respond to his emails.

7. He asked her a number of times for her telephone number but she did not give it to him.

8. He sent some emails in the Urdu language which she did not understand but one includes the word “prostitute”. In her opinion he refers to her as a prostitute because she had stopped interacting with him, whereas before he started to send the emails he was her favourite teacher and she had respect for him.

9. He has never touched her or attempted to touch her. Once he mentioned that he kept a photograph of her she became extremely uncomfortable and sent him two emails threatening to take action. He then stopped sending her emails.

46. Miss X also forwarded to the Principal copies of the two emails she had sent to CKK. Grammatical errors, abbreviations, capitals or lower case letters are retained in the quoted material:

1. In an email dated 1 June 2014 sent at 13:14:34 she states:

All these threatening emails are being recorded and shown to my year advisor. I had not replied to any emails nor have i contacted you until now. i have had enough and decided to take action because i am sick of these messages calling me a prostitute, i have all the emails and have proof of everything, showing i have not answered any mail. it’s unfair you are putting this on me, if it gets too serious I will have to involve my parents and the police.

2. In an email dated 1 June 2014 sent at 13:39:52 she states:

I HAVE NOT DONE ANYTHING

I HAVEN’T RESPONDED TO ANY MAIL AND HAVE NOT INTERACTED WITH YOU AT SCHOOL.

YOU HAVE BEEN CONTINUALLY SENDING ME EMAILS CONTACTING ME AND MY DAD.

STOP AND LEAVE ME ALONE I WILL NOT BE IN THIS POISITON ANY LONGER OR ELSE I WILL SURELEY TAKE ACTION.

I AM NOT GOING TO BE QUIET ANYMORE.

I HAVE PROOF AND ANYONE WITH HALF A BRAIN WILL KNOW WHAT IS HAPPENING.

I AM ONLY 16 BUT I AM NOT STUPID.

47. In the investigation report:

1. The investigator states that Miss X said the email sent on 5 May 2014 describing her as “clean” and “pious” made her feel “gross”, “weird” and “uncomfortable” .

2. The investigator states that Miss X said that when CKK went into her maths class and put exam papers on her desk she did not acknowledge him and did not want to look at him as he was making her feel “uncomfortable and awful”. She said that she found his behaviour embarrassing and concerning because he had approached her and publically showed favouritism. She said that she felt that this was another attempt to try to engage in inappropriate contact with her.

3. The investigator states that Miss X said she felt scared and threatened when she received the email sent on 7 May 2014 in which CKK said that if she did not come to see him, he would come and see her every day in class.

4. The investigator states that on 9 May 2014 after receiving the email of that date in which she is referred to as a prostitute, Miss X sent an email to CKK stating:

This is not how you talk to students. Comparing me to a prostitute is very wrong, you have just made me feel very uncomfortable and this added to it. Bear in mind you are a teacher. Do not respond to this email.

5. The investigator states that despite sending the email outlined above, Miss X received further emails from CKK.

6. The investigator states that the email sent by Miss X starting “I HAVE NOT DONE ANYTHING …” was sent after she received an email from CKK sent on 1 June 2014 in which he accused her of contacting his wife and damaging their marriage.

7. The investigator states that Miss X summarised her feelings about CKK as follows:

I never gave (CKK) any impression I wished to communicate with him on any basis other than as a student and teacher relationship. I found his initial response to be strange but I did feel sorry for him as he was having some personal issues. However it became clear to me that he was becoming very personal towards me and it made me feel scared, upset, concerned, angry and threatened. I don’t know what his intentions were in contacting me.I am still quite upset by the whole matter and what people will think of me if this matter was known to the whole school and the community, as I feel they will blame me for what has happened. This was not my fault …”

Apprehended Personal Violence Order

48. A COPS event reference states that police had spoken with Miss X who confirmed that there had been no indecent or sexually assaultive behaviour towards her by CKK.

49. Police applied for an apprehended personal violence order on behalf of Miss X. The application, which was filed on 24 June 2014, refers to Miss X as the “PINOP” and states, in part:

The PINOP is uncomfortable by the contact made by the defendant. Police have genuine fears for the safety of the PINOP. The defendant is in a position of authority and made inappropriate contact with the person who is vulnerable and in his care. Police are concerned that that the defendant will continue to contact the PINOP and that the contact will escalate in terms of frequency and means of contact.

50. In his Statutory Declaration dated 23 December 2015 CKK states that on 11 November 2014 he consented to the order having obtained legal advice as to the cost of contesting the application and after being made aware that the AVO was not a criminal offence. He notes that he did not breach the order which was enforceable for 12 months from 11 November 2014.

Applicant submissions regarding the seriousness of the matters

51. In his written submissions, Counsel for the Applicant submits that there are three categories of seriousness in respect of matters of this nature. The first category involves criminal offences of a sexual nature whist the second involves overt acts with sexual connotations that fall short of criminal conduct whilst the third and less serious category is where there is no criminal conduct or overt sexual act, but where there is some other form of inappropriate behaviour. He submits that the matters alleged against CKK fall into the third category, and if the Tribunal accepts CKK’s assertion that he sent only two of the emails, then the matters fall into the lowest end of the scale of the third category.

CKK’s claims regarding the allegations

52. CKK contends that whilst he wrote two emails to Miss X on 1 June 2014, he did not write the remainder of the emails that are the subject of the allegations. He states that those emails were written by his wife.

53. In a statutory declaration date 30 January 2015 provided to the AIS investigator and attached to a statutory declaration 23 December 2015 which was provided to the Children’s Guardian, CKK:

1. identifies the emails by reference to their dates and specifically denies sending the emails other than those sent on 1 June 2014.

2. states that he regularly discussed school happenings with his wife including discussions about poor and good students. This included discussion about Miss X who was a good student.

3. states that he had regular discussions with his wife about school affairs and that he kept his diary with student attendance details and contact details as well as timetables, rosters and bell timings and the Year 11 half yearly exam timetable at home in a drawer that was accessible by his wife.

4. states that he has two mobile telephones being an iPhone which is usually used by Mrs CKK, and a Nokia pre-paid mobile telephone which cannot access emails.

5. states that on or about 1 June 2016 his wife told him that she had been sending emails to Miss X using his email address. She told him that Miss X had replied to the emails and she said of Miss X “she is interested in you”. He then sent to Miss X the email dated 1 June 2014 at 20:11.

6. states that his wife did not tell him about the emails and he did not see any of these emails on his telephone or on his computer.

7. denies that approached Miss X on 9 April 2014 asking her to come to the science laboratory and states that there is a CCTV camera recording the entrance to the science laboratory and the preparation room.

8. states that he had access to Miss X’s home number from school records. He did not ask Miss X’s father for his phone number but Miss X’s father asked for his number because he wanted CKK to tutor Miss X. He advised that he could not do so because of school policy.

9. states that in early May 2014 he telephoned Miss X at her home and spoke with her and her mother stating that he had been requested by the Deputy Principal to re-mark an assignment. He also states that he handed the assignment back to her in the Maths classroom and that on or about 7 May 2014 he telephoned her at home and asked why she had not returned the assignment.

54. In the statutory declaration dated 23 December 2015 CKK makes statements to the following effect:

1. He sent the following emails to Miss X:

1. Email dated 1 June 2014 at 08:01:30 and email dated 1 June 2014 at 20:11.

2. He did not send the other emails alleged to have been sent by him. They were sent by his wife using his email account.

55. Mrs CKK made written statements dated 31 August 2014 and 7 September 2014 which are annexed to CKK’s affidavit dated 26 April 2016 and a statutory declaration dated 30 January 2015 which is attached to CKK’s statutory declaration dated 23 December, 2015.

1. The statutory declaration dated 30 January 2015 includes material canvassed in her statements dated 31 August 2014 and 7 September 2014. Her comments are to the following effect:

1. She met Miss X with several other students at a Chand Raat festival held at Homebush Bay in 2013. On that occasion Miss X said words to the effect that CKK was her favourite teacher and that he is “so good looking and handsome. He is very well dressed ...”

2. She found the comments inappropriate and following that incident she had a number of arguments with her husband about Miss X.

3. Between April and May 2014 she accessed her husband’s email account and sent the following emails to Miss X:

1. Email dated 10 April 2014 at 11:36:47

2. Email dated 16 April 2014 at 9:20:37

3. Email dated 16 April 2014 at 17:31

4. Email dated 5 May 2014 at 18:31

5. Email dated 7 May 2014 at 19:52

6. Email dated 7 May 2014 at 20:50

7. Email dated 9 May 2014 at 16:47

8. Email dated 16 May 2014 at 16:08:25

9. Email dated 16 May 2014 at 20:19:22

10. Email dated 17 May 2015 at 10:16:49

11. Email dated 18 May 2015 at 03:31:45

12. Email dated 20 May 2014 at 7:48:03

13. Email dated 20 May 2014 at 20:56:34

14. Email dated 21 May 2014 at 16:19:51

15. Email dated 25 May 2014 at 13:26:50

16. Email dated 25 May 2014 at 16:38:02

17. Email dated 26 May 2014 at 07:44:50

18. Email dated 26 May 2014 at 21:14:00

19. Email dated 28 May 2014 at 15:48:13

20. Email dated 29 May 2014 at 07:08:30

4. She deleted the emails after sending them and did not tell her husband about them. She read and then deleted emails in reply from Miss X.

5. She was aware, on a daily basis, of CKK’s movements and school timetable. CKK kept various school documents such as his diary, timetables, duty roster, bell times and student records in a drawer at home and she looked at these documents when her husband was not at home. Her husband regularly spoke to her about what was happening at school.

6. She sent the emails to find out the extent of her husband’s relationship with CKK.

7. On or about 1 June 2014 she had an argument with CKK and told him that she had been sending the emails and she then saw CKK sending an email to Miss X containing words to the effect “you were dealing with my wife” and later that evening read the email that CKK sent Miss X at 8:11pm.

2. On 22, 29 and 30 May 2014 she sent emails to Miss X from a ‘yahoo’ web address.

56. In respect of Mrs CKK’s statement that she had met Miss X at the Chand Raat festival, the investigation report cites the following from statements made by Miss X and her classmate and friend (Miss B):

1. Miss X said that she had seen CKK at the festival and had said “hi how are you” to him whilst her friend spoke to him in Urdu. She said that she did not meet Mrs CKK at the festival and has never met her.

2. Miss B made a statement to the investigator to the effect that she had been with Miss X at the festival and that she and Miss X met CKK at the festival, and CKK said he was there with his family, but they did not meet Mrs CKK. She stated that she spoke to CKK in Urdu but that Miss X spoke in English and that her conversation was limited to “Hi, how are you?” She said that it was her belief that Miss X had never met Mrs CKK.

57. CKK and Mrs CKK declined to be interviewed by the investigator but submitted written responses through her solicitor. There were 129 questions which generally questioned how Mrs CKK was possessed of the detailed knowledge of school events and identities and about contact at school between CKK and Miss X.

Email sent on 10 April 2014 at 11:36

58. This email refers to Miss X receiving an award that day, apologises that CKK could not talk about it in class, rebukes Miss X for “hiring bodyguards” and also states “period 4 is going to start and I need to go”.

1. The AIS investigator comments that a friend of Miss X (Miss C) made a statement which included that CKK often invited Miss X to stay behind and ask questions after class, and that it was clear to the students that Miss X was CKK’s “favourite”

2. In an email dated 13 June 2015 sent to the school principal, Miss X states that CKK would call her to his room during lunch breaks and because she felt uncomfortable she would take friends with her, and that is why CKK spoke of her having “bodyguards”.

3. In a record of an interview with police dated 25 July 2015 Miss C’s mother who was a teacher at the school attended by Miss X, stated that Miss X’s mother had mentioned to her that CKK had referred to Miss X not liking to come and see him about work, and as wanting to have a “bodyguard” with her.

4. Mrs CKK was asked about this email by the investigator and in her written responses states that:

1. The night before the award her husband had named the students who would be receiving awards.

2. She did not know that CKK had not mentioned the award in class but assumed that to be the case.

3. She made the comment about bodyguards to gauge the extent of her husband’s relationship with Miss X. In response to a question asking her to name the “bodyguards” she replied to the effect that there were none.

59. Under cross examination CKK said that:

1. The recipient of the award had been decided before the day of the award.

2. From time to time he would talk at home about students who were doing well to encourage his children to try to do well and that his wife would have known about the award because he talked about it at home.

3. He did not know how his wife would have known that he had not mentioned the award in class.

4. Miss X never saw him in the company of her friends and he did not write the reference to “bodyguards”.

5. He was not able to say at what time period 4 commenced in April 2014.

The email sent on 16 April 2014 at 09:20

60. In this email there is mention of students by name in the context that their parents had complained to the school and mention of the name of particular friend of Miss X in the context of questioning Miss X as to whether she had “told” Miss C or her mother anything because there were rumours at the school. The email also states that CKK had spoken to Miss X’s father to make her “side clear”. The author also states that Miss X is “not saying anything which is killing me”

1. In her response to the investigator regarding this email, Mrs CKK states that:

1. She was not aware of the specific complaints and knew the names of students because they were some of the good students whom her husband had mentioned.

2. She had not spoken to Miss X’s father and did not know if CKK had done so.

3. She knew the name of the Miss C because CKK had said that she was a student at the school and that her mother was a teacher at the school.

4. She was not aware of any specific rumours and made that comment to gauge the extent of Miss X’s relationship with CKK.

5. She did not know whether or not CKK had spoken to the father of Miss X.

6. The sentence containing the phrase that Miss X was not “saying anything” was written in an attempt to gauge the extent of Miss X’s relationship with CKK

61. Under cross-examination CKK said that he did not know that there rumours at the school and that he did not know how Mrs CKK would have known this.

62. The email sent on 16 April 2014 at 09:20 also includes reference to CKK tutoring a student and invites Miss X to come for a few minutes to see him.

1. In her response to the investigator, Mrs CKK states that the invitation to Miss X to visit CKK when he was tutoring a named student was to find out the extent of the relationship between CKK and Miss X.

The email date 16 April 2014 at 17:31

63. This email refers to a meeting held with the school principal and includes that Miss X should show CKK her work before she submitted it, and that CKK was working on her half yearly exam, and invites Miss X to be tutored by CKK.

1. In her responses to the investigator Mrs CKK:

1. states that CKK had mentioned something to the effect that he was setting examinations for Miss X.

2. states that she was not aware of a meeting between the Principal and CKK.

3. states that she was aware of the fact the CKK could not be Miss X’s tutor, but was testing Miss X to see if she would take up the offer.

2. Under cross examination CKK said that he was not working on Miss X’s half yearly exam and had never discussed exams with her.

Allegation regarding the Maths classroom

64. As noted above, in his statutory declaration dated 30 January 2015, CKK agrees that he entered Miss X’s classroom but states that this was to return an assignment to her.

The email sent on 5 May 2016 at 18:31

65. This email states that Miss X should tell CKK if anyone had “trouble” about him visiting the maths class and observes that she was “looking a bit nervous”.

1. In her written response to the investigator Mrs CKK states that:

1. CKK had told her that he had taken the papers to Miss X in the classroom.

2. She did not know that Miss X looked nervous, but made the comment to provoke a response.

3. She invited Miss X to tell CKK if she had troubles from anyone about her visit to the classroom to try to find out the extent of Miss X’s affection/relationship with CKK.

4. She wrote “I will prove you the most pious, gentle, clean, intelligent girl …” to invite a reaction from Miss X.

5. She wrote that “no-one can give surety about anyone as I do for you” to try to find out the extent of Miss X’s affection/relationship with CKK.

The email sent on 7 May 2015 at 19:52

66. In this email, the writer states that if Miss X does not come to the writer then the writer will “come and see (her) every day”. In her written response to the investigator, Mrs CKK states that she wrote this in an attempt provoke a response from Miss X. She also states that in this email she invited Miss X not to hesitate to visit CKK for the purpose of trying to provoke a response from Miss X.

The email sent on 9 May 2016 at 16:57

67. In her written response to the investigator’s questions, Mrs CKK states that she made these comments because she was upset at the time.

The email sent on 16 May 2014 at 16:08

68. In this email the author comments that:

1. Miss X had been behaving differently.

2. CKK had attempted to speak to Miss X on the stairs and in the corridor at school.

69. In her written response to the investigator, in relation to this email, Mrs CKK states that:

1. She wrote the comment about Miss X’s behaviour not knowing that Miss X was behaving differently but assuming that she would be doing so because on 9 May 2016 she would have received an email supposedly from CKK in which she was called a “prostitute”.

2. She did not know that CKK had attempted to speak to Miss X in the stairway and the corridor and wrote that comment about the corridor in an attempt to find out where they were meeting.

3. In this email she also wished Miss X success, even though in an earlier email, on 9 May 2014, she had said that CKK did not want to see Miss X again, and had called her a prostitute. She said that when she wrote the email on 9 May 2014 she was very upset.

Email sent on 18 May 2014 at 03:31

70. Much of this email is written in the Urdu language. Counsel for the Applicant notes that the Urdu sections of the email use genders that suggest a female to female communication. Counsel for the Applicant submits that this email is not consistent with the respondent’s suggestion that it was written by CKK with an aim of having a relationship with CKK, and rather, it is consistent with the version of events given by CKK and Mrs CKK, that Mrs CKK wrote the emails. When asked by the investigator why she decided at that point to tell Miss X to stay away from CKK, Mrs CKK replied that she did not choose that date and it was how she felt on that day.

The email sent on 20 May 2014 at 07:48

71. In this email, the author speaks of trying to contact Miss X and asks her to please tell me “my sin before u go”.

1. In her written response to the investigator’s questions Mrs CKK states that she referred to contacting Miss CKK “a few minutes earlier” to provoke a reply and to try to find out the extent of Miss X’s affection/relationship with CKK.

2. When asked by the investigator why she had written the email after sending an email on 18 May 2014 from herself and telling Miss X to stay away from her husband, she stated that she was trying to find out if Miss X would reply to her or her husband.

The email sent on 20 May at 20:56

72. In this email, the writer speaks of having a fear of losing Miss X.

1. In respect of this email Mrs CKK states in her written response to the investigator that she was trying to find out if CKK and Miss X were still in contact with each other.

The email sent on 21 May at 16:19

73. This email speaks of Miss X not saying “salaam” to CKK, provides information about his upcoming treatment and states that during the treatment he will keep with him a photograph of Miss X taken at school when she was sitting with friends.

1. In her written response to the investigator, Mrs CKK states that she did not know that Miss X had failed to say “salaam” to CKK and that she made that comment to provoke Miss X.

Email sent on 25 May 2014 at 16:38

74. In her written response to the investigator Mrs CKK states that:

1. She had thought that Miss X would be busy that day because she thought it was her birthday.

2. She did not know that Miss X had not said “salaam” to CKK and said that she had not done so to provoke a reaction from Miss X.

3. She knew the name of the student mentioned in relation to the rumour that CKK was resigning because CKK had mentioned that student, but she did not know that the named student had said that CKK was resigning.

4. She said “don’t be angry” and “come back please” to find out the depth of the relationship between CKK and Miss X.

75. In his affidavit dated 26 April 2016, CKK states that he was told by a student that Miss X had said that he was resigning and that he had told his wife what the student had said.

The email sent on 26 May 2014 at 09:14

76. Under cross examination CKK said that copies of the examination timetable were at home because it was essential that he refer to the timetable to ensure that all necessary work was completed prior to that examination period. It was put to CKK that this this would require that he know the general exam period, but would not need the actual timetable at home. CKK disagreed with that proposal

77. In her written response to the investigator, Mrs CKK states that she made the comments about Miss X and CKK always being in a “pious relation” to find out how serious Miss X was about CKK.

Emails which CKK admits to sending to Miss X

78. CKK admits to sending an email to Miss X on 1 June 2014 at 08:01:30 in which he states:

… I have no words to say thanks but thanks, for everything you did, I will not ask you the reasons even as I know my sin now, since last weeks I was worried what I did wrong? If I was sense able I should have understood 10 days before when you spread a rumour (CKK) is resigning! Before you attacked on my profession and this time you just crossed all limits and attacked my married life, I am just overwhelmed, highly obliged, highly thankful to you. You knew everything about my personal life, you attacked just a few days before my horrible treatment and now contacted my wife, I will not ask you why you did that but want to request you one thing tonight after your Ishaa prayer before going to bed pl recite The Quran and ask yourself what you did? If I said “no more than 100 bad words for you” did I deserve that much? I don’t care about job as that is not the only source of my income, but what I am facing since last night at home, can you imagine all this? Of course you are a female and could understand better that’s why you planned to attack that way and tried your best to turn my home to hell as you knew it was burning already because of other reasons but how I will face all this under such medical condition? How can I come out of all this? Anyway congratulations ‘A’ are you very much successful, I am not going to blame you. ‘A’ if I did nothing for your betterment but in the presence of Allah Subhan I am saying that I never thought any thing did for you but what I always have for you is only respect and honour, ‘A’ there was no reason of such attack or revenge. As my hands are clean I will try my best to clarify but how I will remove the cracks and damage you have done? I don’t know what to do? But I have to face all this may be the rest of my life. I will fight my war myself and pray InshaAllah Allah Subhan will help me to cone out from all this, whatever it is I will remember your kindness with so many question marks.

‘A’ doing all this you just forgot what she would be thinking about you. As she is not only female but is my wife who was being targeted for nothing and I don’t know what will be her next step even, I will try to manage but at this stage I don’t know what to do as it’s all too much blurry, once again thanks for every thing especially giving me an opportunity to enjoy such a lovely weekend Allah Hafiz ‘A’.

79. CKK admits to sending an email to Miss X on 1 June 2014 at 20:11 saying:

‘A’ Why u did all this. U just spoil everything

80. The email sent on 1 June 2014 at 08:01:30 that CKK states was sent by him after Mrs CKK told him she had been corresponding by email with Mss X, appears to refer back to some of the content of previous emails. This includes “if I said 100 bad words” and those words are set within quotation marks and could be a reference to the email sent on 16 April 2014 in which those words were used. The email also refers to an allegation that previously Miss X spread rumours that CKK was intending to resign, which was also the subject of prior emails.

81. In his affidavit dated 26 April 2016 CKK states that the expression including the words “100 bad words” is an expression he uses often at home to his children as well as one he uses often at school.

82. In the AIS report the investigator opines that, if faced with a revelation from Mrs CKK that she had been emailing Miss X posing as CKK and that she believed that Miss X was interested in him, CKK would have contacted the parents of Miss X, or the school Principal and not Miss X.

83. The investigator further opines that if, under the circumstances claimed by CKK, he had become aware of his wife’s actions and did email Miss X, he would have been expected to explain to her that his wife had been sending the emails. However in the emails dated 1 June 2014 he does not refer to Mrs CKK as the author of the emails.

84. Under cross examination CKK gave evidence to the effect that on 1 June 2016 he was concerned about his wife’s reactions and because she was shouting at him and telling him she wanted a divorce. He said that he was not able to think clearly and he said words to the effect that he was out of control emotionally when he sent the emails on 1 June 2014.

85. In the second email which CKK admits to sending to Miss X on 1 June 2014 he accuses her of spoiling everything. It was put to him in cross examination that he sent this email because Miss X had threatened to report the email correspondence. He disagreed with this assertion.

86. In cross examining CKK, Counsel for the Respondent noted that Mrs CKK claimed to have deleted Miss X’s emails in reply to those sent for the account of CKK. When questioned as to the basis for his assertion in the email of 1 June 2104 that Miss X had done the wrong thing, and asked if he had seen any of the emails sent by Miss X, CKK said he had seen two emails from Miss X, being one sent on 1 June 2014 at 13:39 saying amongst other matters that Miss X was “not going to stay quiet any longer” and one sent on 1 June 2014 threatening to report the emails to her year advisor. In respect of the latter email he said that he had replied saying she could tell whomever she wished. However he said he was not able to retrieve that email or to provide it in evidence.

Emails from Miss X to CKK

87. Miss X sent some emails in response to those sent from the account of CKK.

1. In an email sent on 16 April 2014 at 16:14:56 Miss X states:

Salaam sir, I’m so sorry I should’ve let you know earlier that I was staying at my auntys house at Manly for a while and didn’t have WiFi there

I did just read your emails but I don’t understand why you feel the need not to teach year 11/12 bio anymore.

I wasn’t angry I just wasn’t able to check my mail

I didn’t tell (name of friend) or her mum anything but I did tell you that the girls were getting bad impressions that’s why I didn’t visit you anymore

What rumours is the staff saying? I didn’t say anything to anyone because I knew how things would have ended up

1. Under cross examination CKK said that he never saw this email and Miss X she had never visited him alone or with friends.

2. He had never heard that there were rumours about him and Miss X.

2. In an email sent on 16 April 2014 at 5:50 pm Miss X states:

I don’t understand what I have done? Why are you so angry with me? And why did teachers change because of me? I haven’t been careless about anything nor did I say anything to anyone.

Many bad words for me? Why are you talking like this

3. In an email sent on 30 April 2014 Miss X states:

Salaam sir I hope everything is okay with you

But I just wanted to say is that all the male teachers in school try their best to avoid me and not to have contact with me, as well as not returning my hellos and the message is spreading around the school which has made me very angry

Also the class was saying they want you back as bio teacher, inshaallah it will happen and go back to normal.

1. Under cross-examination CKK agreed the email was sent to his email address but said that he did not receive it.

4. Miss X also sent emails dated 1 June 2014 which are reproduced at paragraph 46 (above) and which she forwarded to the school principal.

The Tribunal’s view about the authorship of the emails

88. Generally the Tribunal notes that Mrs CKK has claimed that in sending the emails she was attempting to gauge the extent of the relationship between CKK and Miss X, and that she and CKK had arguments about the nature of his relationship with Miss X. She states that she became suspicious of the relationship due to comments made by Miss X at the Chand Raat festival at Homebush in 2013.

89. In respect of the genesis of the emails:

1. The Tribunal understands that the Chand Raat festival in 2013 was on or about 13 August 2013. However it is not until April 2014 that the first email of personal nature was sent to Miss X.

2. Under cross examination CKK said that he and his wife had general discussions about school students over this period and that Mrs CKK had asked about the students but not specifically about Miss X.

3. In the record of the proceedings before the Fair Work Commission CKK suggests that Mrs CKK’s delay in commencing sending the emails was due to the possibility that Miss X would have gone to a different school for year 11 and 12 and that it was only clear in Term 1 of 2014 that she remained at the school for year 11.

4. Mrs CKK was not made available for questioning at the hearing and so the Tribunal lacks her explanation as to why she commenced writing the emails some eight months after the Chand Raat festival.

5. Taking into account the emotive content of the emails, the Tribunal is of the view that it is unlikely that their genesis was a comment made by Miss X some eight months previously.

6. In the absence of further evidence, the Tribunal is of the view that the time elapsed between the Chand Raat festival in Homebush in 2013 and the first email is such as to cast doubt on this explanation as to why Mrs CKK would send the emails to Miss X.

The email sent on 10 April 2016 at 11:36

90. In respect of the comments about Miss X having “bodyguards”:

1. Miss X’s statement and the statements of her school friends refer to Miss X’s friends accompanying Miss X when she went to visit CKK at his request.

2. In her email sent on 16 April at 16:14:56, Miss X states “but I did tell you that the girls were getting bad impressions that’s why I didn’t visit you anymore”.

3. The school teacher who is also the mother of Miss C stated to police that Miss X’s mother had said that CKK referred to Miss X as having ‘bodyguards’.

4. The evidence of Miss X, her friends and Miss C’s mother was not tested under cross examination and the evidence of Miss C’s mother is hearsay only. However the Tribunal is of the view that there is consistency in the evidence that supports a conclusion that Miss X was visiting CKK out of class and had some disquiet about those visits. The Tribunal is also of the view that there is consistency in the evidence that suggests that Miss X took others with her when she visited CKK, and that it is reasonable to assume that the email reference to her “bodyguards” is a reference to her being accompanied by these friends when she visited CKK.

5. Mrs CKK was not available to give evidence about this email. In the absence of her evidence on this matter:

1. The Tribunal is of the view that it is unlikely that Mrs CKK would have known that Miss X was taking others with her to visit CKK.

2. Had Mrs CKK known that Miss X was taking friends with her to visit CKK, and if she wanted to prevent or interfere with any developing relationship between CKK and Miss X, the Tribunal is of the view that it is unlikely that she would have sought to prevent the practice of “bodyguards” by saying “I am really angry with u for your attitude and specially for hiring bodyguards”.

91. In respect of the references in the email to Miss X receiving an award at school that day:

1. The Tribunal accepts that it is possible that CKK had told Mrs CKK of the award on the day before it was awarded. However the Tribunal is of the view that at 11:36 Mrs CKK could not have known that CKK had not mentioned the award in class.

92. In respect of the mention in the email that period 4 was about to start, the Tribunal notes that any temporary timetable change would render that comment inappropriate and is of the view that the comment has an immediacy and specificity that renders it unlikely that a person absent from the school and not part of the progression of the school day would make that comment, even if that person had access to the pre-prepared daily timetable.

93. Based on the available evidence, the Tribunal is satisfied that it is more likely than not that the email sent on 10 April 2014 at 11:36 was sent by CKK.

The email sent on 16 April 2014 at 9:20

94. In respect of the mention in this email about rumours at school, Mrs CKK stated in her written responses to the investigator that she did not know there were rumours at the school. CKK said that he was unaware of rumours. In her email of 16 April 2014 Miss X states “I didn’t tell (Miss C) or her mum anything but I did tell you that the girls were getting bad impressions that’s why I didn’t visit you anymore”. The Tribunal has no earlier email communication from Miss X to CKK and is not able to establish whether Miss X is referring to an email or oral communication in which she told CKK that “girls were getting a bad impression”. However the Tribunal is of the view that in referring to this matter, Miss X indicates a prior communication with CKK about the views of others about her visits to CKK.

95. This email names students whose parents had made a complaint. The Tribunal is of the view that it is unlikely that Mrs CKK would have had access to the detail that the parents of the named students had made a complaint. The Tribunal considers it unlikely that the existence of complaints by parents would be guessed at or invented by a person who was unaware of such a circumstance.

96. This email refers to Miss X “not saying anything which is killing me”. Mrs CKK states that she made this statement in an attempt to gauge the extent of the relationship between CKK and Miss X. However the Tribunal is of the view that it is unlikely that Mrs CKK would have known whether or not Miss X was “saying anything” to CKK.

97. In respect of the invitation to Miss X to “come for a few min to see me”, the Tribunal is of the view that if she was seeking to end any relationship between Miss X and her husband, it is unlikely that Mrs CKK would have encouraged Miss X to meet with CKK.

98. Taking these matters into account, the Tribunal is satisfied on the balance of probabilities that this email was sent by CKK.

Email dated 5 May 2014 at 18:31

99. Mrs CKK states that she did not know that Miss X looked nervous when CKK visited her in her maths classroom. The Tribunal is satisfied that Mrs CKK would not have known this. The Tribunal is also of the view that it is unlikely that the comment about Miss X looking nervous when CKK visited her in her maths class would have made without knowledge of how she reacted during that visit and is satisfied on the balance of probabilities that this comment was written by CKK who possessed that knowledge because he had made the visit.

1. CKK called Miss X’s home phone a number of times.

139. CKK denies these allegations. In his statement dated 7 September 2014 and in his statutory declaration dated 30 January 2015 he comments to the following effect:

1. He did not ask Miss X to see him at the science laboratory and had she done so the visit would have been recorded on CCTV equipment at that location.

2. He telephoned Miss X’s home number in May 2014 and spoke to her mother and then Miss X about an assignment. On another occasion in May 2014 he telephoned Miss X at home and discussed an assignment.

3. He entered the maths classroom and gave Miss X her assignment.

140. In respect of the allegation that on 9 April 2014 CKK asked Miss X to see him in the science laboratory the Tribunal is of the view that there is insufficient evidence to support that particular allegation. However the Tribunal is of the view that there is evidence that CKK commonly asked Miss X to see him in relation to schoolwork. In particular:

1. The AIS investigator comments that Miss C stated that CKK often invited Miss X to stay behind and ask questions after class, and that it was clear to the students that Miss X was CKK’s “favourite”.

2. In an email dated 13 June 2015 sent to the school principal, Miss X states that CKK would call her to his room during lunch breaks and because she felt uncomfortable she would take friends with her, and that is why CKK spoke of her having “bodyguards”.

3. In a record of an interview with police dated 25 July 2015 Miss C’s mother who was a teacher at the school attended by Miss X, stated that Miss X’s mother had mentioned to her that CKK had referred to Miss X not liking to come and see him about work, and as wanting to have a “bodyguard” with her.

141. Whilst the evidence referred to in the preceding sub-paragraphs was not sworn or subjected cross-examination, the Tribunal is of the view that it consistent and goes to establish a conclusion on the balance of probabilities that CKK commonly called Miss X to discuss schoolwork with him.

142. In the context of the emails which the Tribunal is satisfied were written by CKK, and those which the Tribunal is of the view were possibly written by CKK, the Tribunal is satisfied that the additional attention paid by CKK to Miss X represents a breach of professional standards in respect of teacher-student relationships which is serious due to being part of a pattern of behaviour that breaches professional boundaries.

143. CKK agrees that he went into Miss X’s maths classroom and handed her an envelope but states that it contained her assignment, not past examination papers. The Tribunal has no evidence as to the urgency or otherwise of the assignment and is of the view that whilst CKK admits to entering the classroom there is no evidence that this was a breach of teacher-student professional boundaries.

144. The Tribunal reaches no conclusions about the appropriateness or otherwise of CKK contacting Miss X at home to discuss the submission of an assignment and considers the evidence insufficient to establish that he did so for any other reason.

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

145. The emails were sent between 7 April 2014 and 1 June 2014 and the additional allegations refer to matters alleged to have occurred over the same period. This was more than two years ago.

146. In his affidavit CKK states that after his employment as a school teacher was terminated, he worked as a taxi driver from October 2014 until approximately October 2015 and then again from late February 2016 until the current time.

147. In his statutory declaration dated 23 December 2015, CKK states that prior to working at the school where the matters took place his child-related work comprised employment as a casual teacher in 2012.

148. Taking into account that CKK has not been involved in child related work since the time of the alleged conduct, and had only some casual employment for an unspecified period in child related work in the year preceding his appointment at the school where the matters occurred, the Tribunal is of the view that the interval of less than three years since the allegations is insufficient time to significantly inform an assessment of the possible risk posed to children.

The age of the person at the time the offences or matters occurred, 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, The difference in age between the victim and the person and the relationship (if any) between the victim and the person, Whether the person knew, or could reasonably have known, that the victim was a child

149. At the time of the alleged matters CKK was 46 years of age and Miss X was 15-16 years old. There was an age difference of some 30 to 31 years between the Applicant and Miss X.

150. For some of the period during which the emails were sent, Miss X was a student of CKK and at all times was a student at the school at which CKK was employed.

151. The Tribunal is satisfied that:

1. CKK was aware that Miss X was a child.

2. There was a significant age difference between CKK and Miss X which contributed to her vulnerability and the likely effect of the emails on her psychological and emotional welfare.

3. CKK was in a position of authority over Miss X, which contributed to her vulnerability and the likely effect of the emails on her psychological and emotional welfare.

The person’s present age

152. CKK was born in 1968 and is now 48 years old. He was 46 at the time of he alleged matters. The Tribunal is of the view that his current age is not a significant matter affecting the risk that he might pose to children.

153. The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

154. CKK has no criminal record. However the trigger matters resulted in the issuing of an Apprehended Personal Violence Order protecting Miss X. The Tribunal accepts that the issuing of the order was not contested but is nevertheless of the view that it is relevant that police considered it appropriate to make the application, and the order was made.

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

155. CKK agrees that he sent the two emails on 1 June 2014 but contends that his wife sent the remainder of the emails.

156. As is detailed in the section of these Reasons dealing with the seriousness of the matters, the Tribunal is satisfied on the balance of probabilities that CKK was the author of a number of the emails. It was of the view that whilst it was not able to determine on the balance of probabilities that CKK was the author of the remainder of emails, it was satisfied that the evidence allows for the possibility that he was the author of the remaining emails with the possible exception of the email sent at 03:31:45 on 18 May 2014.

157. CKK provided a report dated 24 April 2016 compiled by Mr Sam Borenstein, a clinical psychologist after interviewing CKK on 22 April 2016. Mr Borenstein records an account of the offence given to him by CKK which is essentially similar to the account provided to the Tribunal in which CKK admits to sending two emails on 1 June 2014 but denied sending the remainder of the emails.

158. Mr Borenstein opines that there is no evidence that CKK has a serious psychiatric disorder and that CKK is cognitively intact. He administered a Personality Assessment Screener on which CKK’s profile was normal and there was no suggestion of CKK acting impulsively or exhibiting behavioural problems. Nor was there any indication of psychiatric disorder. A Depression Anxiety Scale returned results that were normal for symptoms of depression, anxiety or stress. A Static 99R assessment indicated that CKK is in the low risk category for sexual reoffending.

159. Mr Borenstein expresses the opinion that:

1. CKK does not suffer any obvious psychological disorder or psychiatric condition and his history does not indicate sexual aberrations or paraphilias.

2. Assuming CKK’s account of the matters is correct, he does not pose a risk to the safety of children.

3. If CKK did sent the emails he did act inappropriately towards a student which requires acknowledgement on his part.

4. CKK has said that he was prepared to undertake further training to ensure that such allegations do not occur in the future.

5. CKK does not require any psychological treatment.

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

160. In a statutory declaration dated 23 December 2015, CKK states that on or about 6 July 2014 he commenced an unfair dismissal application in the Fair Work Commission, but discontinued the action because he could not afford the legal costs. He states that his previous employer made an application for costs and the application was dismissed. In his written submissions, Counsel for the Applicant refers to the judgement of the Fair Work Commissioner and in particular cites the following passage:

[65] (CKK) was cross-examined at some length about the contents of the emails. He denied that he had sent them, with the exception of that of 1 June. He provided plausible explanations for his wife being in possession of the relevant school-related information in each. I accept (CKK)’s evidence …”

161. Counsel for the Applicant invites the Tribunal to rely on the findings of the Fair Work Commission. In respect of this matter:

1. The context of the Fair Work Commission hearing was a costs application. It was not a hearing into the truth or otherwise of allegations that CKK was the author of the emails.

2. The context of the passage cited by Counsel for the Applicant is within a discussion of the assertion by CKK’s previous employer that CKK’s application was, amongst other matters, without reasonable cause in that it was “obviously untenable in that he must have been the author of the emails as his wife would not have had the necessary knowledge of school-related details disclosed in them”.

3. The Fair Work Commission was willing to accept the evidence of CKK regarding his wife’s access to details about school-related information but in this context does not comment on CKK’s evidence in total.

4. If it were accepted that the paragraph cited by Counsel for the Applicant indicates an acceptance of CKK’s evidence as a whole for the purposes of the Fair Work Commission costs matter, the Tribunal is of the view the comments are limited to that matter.

5. The Tribunal is of the view that the interpretation referred to in the preceding two sub-paragraphs, is supported by the following comments of the Commissioner:

[66] For the preceding reasons I do not consider that (CKK)’s claim was made vexatiously or without reasonable cause. The next issue is whether it should have been reasonably apparent to (CKK) that his application had no reasonable prospects of success. The test is an objective one. A conclusion about this would be more certain had there been a full contested hearing and a decision on the substantive claim. Nevertheless, on the basis of the evidence before me I do not consider that (CKK)’s claim was so lacking in merit or substance as to be not reasonably arguable.

162. For the reasons set out in the preceding paragraphs, the Tribunal is not of the view that its decision about the authorship of the emails should be determined by reference to the comments of the Fair Work Commissioner.

163. Attached to his affidavit dated 23 December 2015 CKK provided undated references from the Principal and Deputy Principal of a school at which it appears that he worked as a casual teacher for four week period. The references speak to his performance as a teacher and note that he carried out his duties in a responsible manner. There is no mention of any matters relating to his dealings with students.

164. In a reference dated 9 September 2015, a supervisor of CKK from 28 January 2013 when he joined the staff at the school where the matters occurred until he was dismissed in 2014, comments to the following effect:

1. CKK kept a ‘professional distance’ from students. He spoke respectfully about students who had misbehaved in his class.

2. She never saw CKK acting in way with students that caused her concern.

3. She is aware of the allegations made against CKK but is not aware of any inappropriate behaviour or abuse towards children.

165. In his statutory declaration dated 23 December 2015 CKK states that he is “ashamed and embarrassed” about the emails he sent to Miss X and he understands that Miss X was upset and distressed by the emails sent from his account.

166. CKK provided the Tribunal with a copy of a Child Safe Training Workshop that he has completed. The training is headed “Child Safe Organisations Training” and is said to be training run by the Office of the Children’s Guardian “designed for managers, directors and human resources staff in organisations that work with children and young people”.

167. In his written submissions, Counsel for the Applicant makes the following additional submissions:

1. CKK has expressed remorse, has displayed insight into his conduct in sending the emails on 1 June 2014 and has undertaken not to engage in such conduct again.

2. There is no prospect that CKK will resume teaching at the school in question or that he will again come across Miss X.

3. Given the absence of any prior inappropriate behaviour and the absence of any mental health or behavioural issues, the conduct of CKK in respect of Miss X “can only be characterised as an aberration.

4. The consequences of the CKK’s behaviour on his employment and on his profession have been far reaching.

5. In all the circumstances, the likelihood of the applicant repeating such conduct is “virtually non-existent”.

Any other matters that the Children’s Guardian considers necessary.

168. The Children’s guardian did not raise any further matters.

Conclusion

169. The issue for determination is whether, on the material before it, the Tribunal is satisfied on the balance of probabilities that CKK poses a risk to the safety of children that is greater than that posed by any person.

170. In considering this matter, in accordance with the decision of Harrison J in the matter of Office of the Children’s Guardian v CFW, the Tribunal must consider those matters for which it is satisfied that CKK is responsible and also matters for which it is not satisfied that he is responsible, but for which it has not been able to exclude the possibility that he was responsible. Therefore, in reaching its conclusion the Tribunal takes into account the email exchange generally, with the exception of the email sent on 18 May 2016 in taking into account the circumstances of the trigger matters and the likelihood that CKK represents a risk to children that is greater than that of any adult preying on a child.

171. There are a number of factors that might cause the Tribunal to be satisfied that CKK does not pose a risk greater than any other person. These matters have been referred to in the preceding sections of the Reasons and include:

1. CKK denies sending all but two emails and in respect of the two he admits to sending, he has apologised for sending them. He has acknowledged the distress caused to Miss X in receiving the emails from his email account.

2. The emails were not of a sexual nature and any additional attention alleged to have been shown by CKK towards Miss X was not of a sexual nature.

3. CKK has no criminal record and has not come under any other adverse notice in respect of dealings with children, other than the Aggravated Personal Violence Order issued for the protection of Miss X.

4. CKK’s immediate supervisor at the school of Miss X had no concerns about CKK’s behaviour towards students.

5. Counsel for CKK asserts that CKK has insight into the harm caused to Miss X and that there is no likelihood of a reoccurrence of his behaviour. This view is supported by Mr Borenstein.

6. Mr Borenstein is of the view that CKK represents a low risk of future sexual offending.

172. There are also a number matters that the Tribunal considers contribute to conclusion that CKK does pose a risk to children that is greater than that of any other person.

1. As is detailed in the section of these Reasons dealing with the seriousness of the matters considered by the Children’s Guardian, the Tribunal is satisfied on the balance of probabilities that CKK was the author of a number of emails alleged and is of the view that it is possible that he was the author of all the emails, except the email dated 18 May 2014.

2. The Tribunal was unable to obtain additional evidence from Mrs CKK, whom it considers could be the author of the email dated 18 May 2014, and has not reached a conclusion about that email or about why Mrs CKK might have sent it.

3. The Tribunal is also of the view that the emails CKK admits to sending on 1 June 2014 were inappropriate and represent a breach of his professional duty.

4. The Tribunal is satisfied on the balance of probabilities that CKK did treat Miss X favourably when they were at school.

5. The Tribunal is satisfied that Miss X experienced emotional and psychological distress as a result of the increased attention from CKK and as a result of the emails he sent to her, including those he admits to sending as well as those which he contends were sent by Mrs CKK.

6. The Tribunal is satisfied that the emails it has determined were sent by CKK, and those which it considers were possibly sent by CKK, and the additional attention he focussed on Miss X were inappropriate and a breach of his professional duty despite their lack of sexual content. The Tribunal is satisfied that these are serious matters and if repeated would be likely to cause emotional and psychological damage to a child.

7. Mr Borenstein’s assessment of CKK as being a low risk is based on an acceptance of CKK’s account of the emails and his denial of authorship of most of the emails. The Tribunal does not accept that account of the authorship of the emails.

8. Mr Borenstein opines that if CKK did send the emails he would need to acknowledge the inappropriateness of his contact. Whilst in his statement dated 23 December 2015 CKK acknowledges the inappropriateness of the emails he sent on 1 June 2014 he has continued to deny authorship of the remainder of the emails and to that extent has not acknowledged the inappropriateness of his behaviour in respect of the trigger matters overall.

9. There is a large age gap between CKK and Miss X and due to his age and position as a teacher, CKK was in a position to understand the inappropriateness of his behaviour.

10. Ms X was vulnerable due the teacher- parent relationship.

11. The matters are relatively recent and CKK has not worked in a child related field since those matters. Nor had he an extensive record of working with children prior to the trigger matters.

12. Whilst CKK has recently completed a workshop on developing and implementing effective and practical child safe policies and procedures in the workplace, the focus of this workshop is on organisations and developing safe work policies and procedures, rather than on the personal responsibly of CKK to behave appropriately towards children.

173. These are difficult and finely balanced matters. Whilst there have been no charges or criminal matters alleged against CKK, the Tribunal is satisfied that taking into account all of the evidence, and its conclusions reached as outlined in the body of these Reasons, and summarised in the preceding paragraphs, there are matters of probative value related to the sending of the emails and the favourable treatment of Miss X that suggest that CKK was responsible for breaching his professional duty in a manner that was inappropriate and overly personal to the extent that it constitutes serious sexual misconduct and represents a further risk to children greater than that posed by any adult preying on child.

174. The Tribunal is not satisfied that the completion by CKK of organisationally oriented training or the matters outlined by Mr Borenstein or submitted by Counsel for CKK are such as to balance the risk referred to in the preceding paragraph and that, on balance, CKK does pose a real and appreciable risk that is greater than the risk of any adult preying on a child.

173. It follows that the orders of the Tribunal are that:

1. The decision of the Children's Guardian dated 19 January 2016 to refuse to grant the applicant a Working with Children check clearance is confirmed

2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

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: 31 January 2017