Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BLU v Children's Guardian [2015] NSWCATAD 41 Decision date: 13 March 2015 Before: S Leal, Senior Member Decision: The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check clearance. Catchwords: Administrative Law - review under s27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - the correct and preferable decision - whether the applicant poses a risk to the safety of children – whether sexual misconduct – whether grooming behaviour Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: BLU (Applicant) Children's Guardian (Respondent) Representation: Solicitor: Millards Lawyers (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410487 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons. reasons for decision Introduction 1. The applicant, who will be referred to as BLU, is a high school teacher by profession. On 20 August 2013, he sought a working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW) ('the Act'). 2. Following his request, the Office of the Children's Guardian (the Children's Guardian) conducted a risk assessment for BLU. The trigger for the investigation was the following finding made against BLU of 'sexual misconduct committed against, with or in the presence of a child, including the grooming of a child.' (clause 2 of Schedule 1 of the Act): The allegation was one of reportable conduct which involved sexual misconduct, in that it constituted a crossing of professional boundaries in that your behaviour in repeatedly taking photographs of boys in their swimwear can be construed as involving inappropriate and overly personal conduct towards or an inappropriate and overly personal focus on a child or young person, or a group of children or young persons, that has persisted in spite of your having been requested to desist from such behaviour in two different schools at different times over a period of 10 years or more. 1. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 2. Following the completion of the risk assessment, which considered further allegations against him, BLU was issued with a 'Notice of proposed refusal of application' under s19 of the Act inviting him to make submissions to the Children's Guardian. Having considered BLU's subsequent submissions, the Children's Guardian made a decision on 25 August 2014 refusing to grant him a working with child check clearance. 3. BLU's application for review was lodged, within time, on 3 September 2014. He has therefore applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act. 4. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application. 5. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 Administrative Decisions Review Act 1997.) 6. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant was not to be published without the leave of the Tribunal. For this purpose the pseudonym BLU has been used for the applicant's name. Further pseudonyms have been used to refer to students and employers of BLU. Evidence Risk assessment report 1. The risk assessment report for BLU, prepared on 5 May 2014 and approved on 18 June 2014, identified the following risks posed by BLU to children: The applicant exhibited a number of behaviours which align with guidance on grooming behaviour as details in the NSW Ombudsman publication Defining Reportable Conduct. 1. According to this publication, 'grooming behaviour' includes persuading children that they have a 'special' relationship, testing boundaries, inappropriately extending a relationship outside of work and inappropriate personal communication that explores sexual feelings or intimate personal feelings with a child. 2. In evaluating the information before it, the risk assessment report noted that: A number of allegations were investigated by the applicant's former employer, however only one was sustained. This was in relation to photographing male students in their swimwear, and not always in contexts which could be described as 'action shots', which was repeated even after having left the school in question and was working at a different school. The behaviour was deemed 'sexual misconduct'. While the final findings do not explicitly refer to grooming, the principal..noted that in drawing his conclusions, he utilised an Ombudsman publication Practice Guide 2/2010 which provides details of behaviours which can be described as grooming…Information obtained directly from the applicant's previous employers..provides considerable detail in relation to specific concerning behaviours that were observed during his time at these schools. As stated, these behaviours were not considered grooming or sexual misconduct, but were deemed to be issues of professional misconduct. As such, the Commission for Children and Young People were not notified of this at the time. However, when viewed holistically, the repetitious nature of the behaviour indicates a pattern of behaviour, much of which aligns with the Ombudsman's description of grooming behaviour. 1. In conclusion the report found that: The applicant has exhibited a clear pattern of behaviour which could be considered grooming behaviour, which has persisted across 3 different settings over a considerable time period of 10 years. He has been warned and advised against this behaviour on numerous occasions. However his history of defying direction suggests that he has not learned from previous mistakes and that this behaviour could recur. It is considered that this behaviour poses a risk to children. For this reason, a Decision Bar is recommended. 1. In the document headed 'Reason to Issue s20 Notice of Decision bar' signed off on 13 August 2014, the basis for the decision bar proposal is as follows: A sustained finding of sexual misconduct in relation to the applicant was made by BSG. The applicant engaged in certain behaviours with male students at 3 different places of employment over a 10 year period. When viewed collectively, the repetitious nature of the behaviour indicates a pattern, much of which aligns with the Ombudsman description of grooming behaviour…Given the considerable period of time over which the persistent and concerning behaviour occurred, the information provided by the applicant does not mitigate the concerns. For this reason, it is recommended that the matter proceed to Decision Bar. BLU's term of employment at BSE 1. From 1992 -1995 and 1996 - 2001, BLU was employed at BSE as housemaster and teacher. Towards the end of his time at the school, concerns were raised in relation to what was said to be his inappropriate interaction with BSH, a junior student at the school. 2. Following representations by BLU and the submission of a series of references for him, these concerns were subsequently withdrawn. 3. Contained on file are copies of references provided for BLU from parents of students attending BSE. Each of the references extoll BLU as a teacher, sporting coach and mentor. BLU's term of employment at BSF 1. Between 2001 and 2007, BLU was employed as a teacher at BSF. Concerns were raised in relation to BLU's engagement with boys at the school. These included BLU taking photographs of boys in the water polo team (in swimming costumes) and when they were walking up the stairs of the pool (i.e. they were not 'action shots'), and handing out sweets to boys in the playground as rewards. BLU had apparently also made home visits to a then student of the school. He was also overhead saying to a student of the school (who was not a student of BLU) that he could listen to the boy's accent 'for hours.' 2. An internal investigation was carried out which concluded that BLU's behaviour was not reportable conduct but outside of best professional behaviour. As a result of the investigation, BLU was counselled and instructed not to take photographs of students, to restrict tutoring to on campus only and not to hand out lollies. Term of employment at BSG 1. BLU was employed as a teacher at BSG from 2007 to 2010. On 6 September 2010, the principal made a final finding of reportable conduct against him. 2. The specific allegation was that during his employment at BSF between 2004 and 2007, BLU had engaged in a pattern of behaviour with and towards students of BSF. Specifically, it was alleged that BLU had photographed male students in their swimwear who were students of BSF and who were in the water polo teams he coached and 'not always in contexts which could be construed as "action shots''' including in 2009 and again in Term 2, 2010, after he had actually left BSF and was teaching at BSG. 3. In finding the allegation sustained, the principal of BSG wrote: The allegation was one of reportable conduct which involved sexual misconduct, in that it constituted a crossing of professional boundaries in your behaviour in repeatedly taking photographs of boys in their swimwear that can be construed as involving inappropriate and overly personal conduct towards or an inappropriate and overly personal focus on a child or young person or a group of children or young persons that has persisted in spite of your having been requested to desist from such behaviour in two different schools at different times over a period of ten years or more. 1. Other allegations were not found to constitute reportable conduct but were said to possibly 'constitute a breach of professional behaviour or judgment which may have required further disciplinary action' or had shown a lack of professional judgement. 2. These final findings followed a series of preliminary findings. 3. In a preliminary report dated 20 January 2010, six allegations were set out, comprising two allegations of misconduct that may involve reportable conduct and four allegations of professional misconduct. None of the allegations of professional misconduct were sustained. In relation to each of the two allegations of misconduct involving reportable conduct, a finding was made that 'the allegation was not one of reportable conduct, but might constitute a breach of professional behaviour or judgement which requires further disciplinary action.' These allegations were that: * BLU had photographed male students, who were in BLU's water polo team, in their swimwear ; * BLU had permitted students to travel in BLU's private car to sports training; * BLU had stared at students in the playground; entered a locker room without a reason for being there and had spoken with a student alone and had worked with him at lunchtime and on at least one occasion had been alone with the student. 1. Between the report of the preliminary findings, as updated on 26 July 2010 and 4 August 2010 neither of which contained findings of misconduct, and the report containing the final findings dated 17 August 2010 (and sent to BLU by express post on 18 August 2010), BLU's behaviour in photographing students in their swimwear had been elevated from a possible breach of professional behaviour to sexual misconduct. 2. BLU was given the opportunity to respond to the final findings but did not do so. The reasons for this are set out in BLU's statutory declaration and in his oral evidence to the Tribunal. In brief, BSI, the principal at BSG had telephoned BLU on 18 August 2010 to advise him of the final findings. That same day, but before BLU had advised her of the final findings, BLU's wife committed suicide, following a lengthy and painful illness. According to BLU's evidence, he advised BSI of his wife's suicide that day. Some months later, BLU's father died. Because of his grief, shock and depression following his wife's death, BLU did not respond to the final findings within the stipulated time. Statutory Declarations by BLU 1. As part of his application for a working with children check clearance, BLU submitted a statutory declaration dated 12 September 2013. 2. In his statutory declaration, BLU referred to the findings made by BSI. Relevantly, he clarified his failure to appeal the findings, explaining that the findings coincided with his wife's suicide following a debilitating illness. 3. BLU writes: At the time of the final findings..it was my intention to appeal any adverse findings, as I believed I had not done anything illegal or improper. However, that was the same date that my wife committed suicide and for some time after I was in a state of shock and depression..By the time I enquired as to whether it was still possible to appeal, I was informed by ..my then headmaster that the appeal window had closed. 1. In his statutory declaration, BLU addresses allegations of grooming in that he had spent time with a boy who was not directly his student: My position was that I made myself available to many students whom I didn't teach as that was part of any teacher's role, but particularly as I was the head of department. I regularly saw about a dozen students from classes other than my own at that time. In his case, I had been approached by his parents, whom I had met through coaching a school water polo team, who asked if I could monitor his homework. I agreed..and discussed this arrangement with his English teacher and with his House Tutor as was standard practice. After my suspension and return to work, the parents contacted me again and asked if I would continue to tutor him once I left BSG. I agreed and tutored him until the end of 2012 when he completed Year 12. My position is that our relationship, while friendly, was always conducted professionally. 1. In his statutory declaration, BLU also addresses the allegation that he had taken photographs of two boys from his former school at soccer and water polo games, which had left traces on his school computer. According to BLU, After I left BSF, and at the parents' request, I tutored…the elder brother of one boy, until he completed Year 12 in 2009. I was treated as a friend by his parents…Members of both families attended my wife's funeral, over the years, I had several meals at their house and [the father] and [the elder boy] had visited me for a few days.. at my holiday house. Subsequently I began tutoring the younger brother and his friend, at both sets of parents' request, who were very welcoming. I admit taking photographs but maintain that I took them in the presence of the boy's parents, with their permission and encouragement and gave them all the photos afterwards, so there was nothing clandestine about the situation at all…As a result of the 2010 investigations, I am no longer in contact with either family, so am unable to provide corroboration for these statements. 1. In a further statutory declaration dated 8 July 2014, BLU provides a series of personal references and makes the following comments: In the context of working at private schools, one of the things that parents expect is an increased commitment from the teaching staff…I saw it as my role to extend help where possible if requested. In the past, that was considered part of the role of teachers and it is one of the reasons why I wanted to be a teacher. I wanted to help students…It appears that my desire to assist students is being misinterpreted as something unhealthy. I argue that it derives from a motivation to assist where I can. 1. In his most recent reference, BLU sets out details of a teaching career spanning close to thirty years. In particular, he sets out the circumstances in one of his previous schools whereby parents of an anxious student sought BLU to provide emotional assistance to their child, BSJ. This included a request from the child's mother that BLU drive him to training. When this came to the attention of the deputy head, BLU was told not to drive him anymore. Contained on file is a letter from the child's mother stating that she was aware that BLU had dropped her son home from training on several occasions and that she had no problem with that. 2. A further situation arose whereby a student, BSH, sought out BLU. His subsequent attachment to BLU became a concern for BLU who sought assistance from the child's year master. Together with the parents and the child's year master, a solution was sought. A complaint about BLU was subsequently made by the child's father. A directive from the headmaster that BLU not have any further contact with the child was withdrawn and a letter of reconciliation by the head was accepted by BLU. 3. In 2009, BLU was suspended from teaching at BSG while an investigation was held into allegations made against him. When the investigation was resolved in BLU's favour, he was invited to return to work, which he did. 4. On 18 August 2010, BLU's headmaster telephoned to advise that the Ombudsman's report had found that one of the allegations against BLU had been sustained and that he could appeal the decision within 'a few weeks'. This news coincided with the suicide of BLU's wife, following a lengthy period of ill-health. When BLU was in a state to revisit the findings, he was advised that the time limit for appeal the decision had passed. References 1. In one of the many personal references provided by BLU, a former colleague writes that: BLU is a dedicated and passionate teacher. He does get close to his students which obviously has led to alleged 'grooming' allegations which implies something manipulative behind his actions and in his motivations. I am of the opinion the motives are not manipulative or sinister but he certainly needs to be aware of perceptions of other and ensure he adheres to boundaries…I have not witnessed any abuse at all. I have, however, witnessed care and concern for his students which has given rise to 'grooming' perceptions and where appropriate boundaries may have been better followed so not to give grounds for the perceptions of some. 1. In a reference dated 30 June 2014, BLU's current employer, BSK, the owner of BSD, describes BLU as follows: BLU has been an exceptional teacher with all his students since [being] employed. He is honest, responsible, trustworthy and has displayed professionalism towards his students. He has observed professional boundaries. This is based on very close supervision by me…He responds and actions my directions at all times. Oral evidence by BLU 1. In cross-examination before the Tribunal, BLU agreed that he had been asked to photograph students at BSF and agreed that some of the photographs were of students in their swimming costumes taken on the blocks. He agreed that he had taken photographs of the waterpolo team that were not strictly action shots, and that some of the photos had been taken while the team were on the steps of the pool. He agreed that he had later been advised not to take photographs of students. He told the Tribunal that this was not because he was accused of doing anything inappropriate but simply to protect himself against the rumours that had been circulating about him. 2. He agreed that he would hand out lollies to reward his students for training in the cold pool without complaint. The pool was external and so part of the playground. The lollies were only given to male students because BLU was only coaching male waterpolo teams. He explained that at BSF, women coached the girls' teams and men coached the boys' teams. He agreed that a student had tried to steal a lolly from BLU's pocket and that he had admonished the student for this. 3. He agreed that at BSE, he had been the photographer for one of the school's magazines and had followed the instruction when the principal had told him not to take photographs anymore. He couldn't remember being told not to take photographs by the then deputy head of BSE, BSL. 4. He agreed that he was told by the then principal of BSE not to have contact with the student BSH. BLU told the Tribunal that he had obeyed this direction. 5. He agreed that he had twice given the student BSJ a lift back from training to the school at the student's mother's request but had not done this again after he had been told not to by BSL. He denied speaking to this student 'for 40 minutes.' 6. He agreed that BSH had formed an attachment to him following the Year 7 camp and that, as the housemaster, BSH would seek BLU out. When BLU became concerned about the student's attachment to him he sought advice from the Year 7 master and the student's parents were contacted. He can't remember referring to the student as 'a special boy.' He confirmed that a direction for him not to have contact with the boy was withdrawn. 7. In relation to the allegation about the student BSM, he agreed being in a classroom with BSM and another student but stated that, contrary to the allegation, the door had been open not closed. He agreed that, as head of department, he would meet with BSM briefly to monitor his homework. This involvement was with the parent's knowledge and the knowledge of BSM's class teacher. 8. In relation to photographs of a student found on his computer, BLU gave evidence that the photographs were taken with the knowledge of the student's parents. BLU no longer has contact with the parents. The laptop in question was the school's laptop which was returned to the school. 9. BLU confirmed that the principal of BSG, BSI, was aware of the suicide of BLU's wife on the day of the suicide, namely 18 August 2010, because BLU had rung the principal to tell him. Dr John Baron 1. Dr Baron is a clinical psychologist who has a doctorate in psychology and who has been working as a psychologist since 1979. It is not disputed that he has specialist training in sex-offender assessment and treatment. 2. He prepared a report dated 5 October 2014 to address the following questions: * whether BLU poses any real and appreciative risk to the safety of children; and * whether there are any other material matters affecting his suitability to work with children. 1. BLU told Dr Baron that, as a teacher, he thought he could make a difference to people's lives, as had two of his teachers when he was a student. His general premise was that 'if a kid came to me and wants help, where possible, where feasible, there was some onus on me to provide that.' He told Dr Baron that when he was at school in the 1970s, it was not uncommon for students to have ongoing contact with teachers in other contexts, including after they'd left school. He told Dr Baron that, post school, he had been involved in a Christian youth group run by one of his ex-teachers who his parents knew and with whom they had social contact in their home. He also observed that another of his teachers was a close friend of his parents and was occasionally in their home socially. 2. As recounted by Dr Baron in his report, BLU denied any inappropriate behaviour with students and gave detailed explanations in response to those allegations subsequently made against him. 3. In particular, BLU responded to the allegations that he had taken a former student to his holiday home by explaining that the student and the student's father had travelled with him en route to an ongoing destination and that both of them had stopped over with BLU for two nights prior to travelling to their destination. 4. He told Dr Baron of his six years at BSF before taking a position at BSG. Because of the small size of BSF and the fact that he was the waterpolo coach, BLU came to know the students and their families well. This resulted in a continuation of his friendship with some of the families after he had moved schools. It included returning to watch some of the students play waterpolo, where, given his skill in photography, he was encouraged by the parents of the students to take photographs of the children. He noted that he had received an excellence in teaching award whilst at BSF. 5. He agreed that at BSF, he had been told to desist from rewarding students at waterpolo training with chocolates. He told Dr Baron that he had then stopped the practice. 6. In his psychometric assessment, BLU scored 'very high' on the score of agreeableness. According to Dr Baron, people who score in this range are genuinely concerned with other people and try to treat everyone with courtesy and kindness. They are candid and sincere and find it difficult to deceive or manipulate others, and they go out of their way to be considerate of others and responsive to requests for help. Compared to other people, they are particularly sympathetic to those in need, 7. BLU also scored high in openness, high average in neuroticism, low in extraversion and average in conscientiousness. 8. In light of these scores, Dr Baron found that BLU's personality profile indicates a generally well-adjusted person, with no indications of either personality pathology or clinical disorders. According to Dr Baron The profile is also consistent with BLU's stated ideals about teaching and relating in a caring and helpful way to others. 1. BLU's scores on the MCMI III test which assesses potential signs of any disorder were indicative of a well-adjusted personality and healthy psychological and psychosocial adjustment. According to Dr Baron, there are no indications that BLU has mental health issues although there was a suggestion that he had been experiencing some moderate symptoms of depression. 2. BLU's scores for the PAI test lent support to the accuracy of his results on the other tests. 3. In summary, Dr Baron found an absence of any psychological disorders or tendencies of impulsive behaviours or failures in self-regulations. According to Dr Baron, the overall picture for BLU indicates a high degree of aptitude for the profession of teaching and other helping professions. 4. In considering risk, Dr Baron referred to the guidelines provided in the Office of the Children's Guardian's document Information for reporting bodies: Reporting certain misconduct involving children (April 2014) as taken from the NSW Ombudsman's publication, Defining Reportable Conduct. These documents caution that 'behaviour should only be seen as "grooming" where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and that there is no other reasonable explanation for it.' 5. In light of these guidelines, Dr Baron considered the risk assessment for BLU by formulating and testing competing explanatory interpretations of the conduct namely: 1. That BLU's behaviours were driven by sexual motives rather than by his pedagogical ideals, his concern for the well-being of his students, and by other non-sexual motivational needs; or 2. That BLU's behaviours were motivated by his pedagogical ideals, his concern for the well-being of his students, and by other non-sexual motivational needs rather than by sexual motives. 1. Dr Baron described what he saw as a number of substantial methodological problems with the Risk Assessment Report and Reasons to issue s20 Notice of Decision to Bar. These included a focus on presenting evidence in support of the 'sexual motivation' interpretation of BLU's behaviours and pattern of conduct rather than considering, and in some circumstances ignoring, an alternative non-sexual explanation. 2. In conducting a risk-assessment for BLU, Dr Baron used the Stable-2007 assessment. According to Dr Baron, the results of this assessment did 'not suggest that BLU should be considered at risk of being prone to committing sexual offences.' 3. Dr Baron gave the following consideration to the possible blurring of boundaries by BLU: Given that BLU had no family, despite a strong desire to be a parent – and given the distressing and deteriorating state of his wife's health –it is psychologically plausible that his only available outlet for the expression of some of his core motivational needs was his teaching activities and his relationship with families of some of his students. If this is the case, there may have been a pattern of 'blurring boundaries' in his relationships with students and their families; however this is very different to 'violating boundaries' as is the case with sexual abuse. The results of psychometric testing are more consistent with the interpretation of his behaviours as motivated by his values, pedagogical ideals and core motivational needs rather than from motivation to sexually victimise his students and groom their families as part of that process. Sexual abuse is intrinsically an abuse of power, and there is nothing in BLU's results to support such an interpretation of his individual behaviours or overall pattern of his conduct. 1. According to Dr Baron A review of evidence-based potential risk factors (for sexual recidivism), risk-management strategies and protective factors does not suggest BLU should be considered at risk of being prone to committing sexual offences. 1. In his response to the question, does BLU pose any real and appreciable risk to the safety of children, Dr Baron wrote Given the above considerations – namely 1) the paucity of evidence in support of the 'sexual motivation/grooming' interpretation of his behaviours and general conduct, and 2) the weight of evidence supporting the alternative available interpretation of non-sexual motivation – on the current assessment BLU does not pose any real and appreciable risk to the safety of children. 1. In his report, Dr Baron sought to understand why an allegation (Allegation 1) set out in the preliminary findings (26 July 2010 & 4 August 2010) as 'not one of reportable conduct' was subsequently upgraded in the final findings (17 August 2010) to one of sexual misconduct, 'though at the lesser end of objective seriousness and not classified as the criminal offence of "grooming" a minor.' 2. Dr Baron noted the wording of the final finding for the first allegation (17 August 2010), namely that there had been 'sexual misconduct, in that it constituted a crossing of professional boundaries.' According to Dr Baron, It needs to be noted that there was no finding of 'grooming'. This presents as significant, given the Ombudsman's recommendation that 'As grooming is a sexual offence if the alleged victim is under 16 years old, caution should be exercised before reaching a grooming finding (particularly in cases where the behaviour is directed towards a child under 16 years). As an alternative to grooming, in many cases it will be more appropriate to consider whether there has been a 'crossing of professional boundaries..' 1. In seeking to understand the possible reasons behind the upgrading of the findings from one of 'not of reportable conduct' to one of 'sexual misconduct', Dr Baron took into account background contextual considerations, namely a police strike force investigation into numerous teachers and ex-teachers from 'elite' private schools, which led to arrests and the subsequent establishment of a royal commission. In this context, Dr Baron considered the possibility of a 'hyperviligance whereby threat is perceived in situations where there is none or the perceptions of threat are disproportionate to the realities' to explain the escalation between the preliminary and the final findings. 2. Under cross-examination before the Tribunal, Dr Baron stated that he had not considered the Static 99 or the RSBP tests to be appropriate assessment tools in view of the fact that BLU does not have any prior criminal convictions or charges for sexual offences. 3. In considering BLU's work history, Dr Baron agreed that he had taken into account third party information in relation to BLU's previous teaching situation and details of his previous behaviour. Dr Baron told the Tribunal that in considering references provided by BLU, he had scrutinized them for internal cohesion and consistency, common themes and compatibility with other references, including information received from BLU's former headmasters. 4. Dr Baron confirmed that in making his assessment, he had taken into account BLU's lack of criminal antecedents. He confirmed that he had not taken a full sexual history for BLU on the basis that because it would simply be a case of self-reporting, it would carry no weight in the absence of corroborative evidence. On the evidence before him, Dr Baron was satisfied that BLU's core sexuality was heterosexual and that there was no evidence of a more complex sexuality. The evidence before Dr Baron was simply that BLU had never done anything sexually inappropriate with children, had been married for 20 years and was faithful throughout his marriage. 5. Dr Baron told the Tribunal that he adhered to his view that the contextual social background, namely the investigations in the abuse of school students by teachers, was a salient issue in his assessment of BLU. 6. Dr Baron confirmed that in making a risk assessment for BLU, he had looked at the description of the behaviour of concern that needed explanation and considered the evidence supportive of the view that the motivation for BLU's behaviour was sexual rather than non-sexual. 7. When questioned as to whether Dr Baron was in any better position to make a risk assessment for BLU than the Tribunal, Dr Baron replied that he had been engaged as a scientist in forensic psychology, not as a judicial member, and that his evidence should be considered in that light. Submissions 1. Mr McGrath for BLU made the following observations in relation to Dr Baron's report. At the beginning of that part of his report headed 'Considerations of Risk'..Dr Baron makes some preliminary comments, importantly noting that there is no established research base for identifying evidence-based risk factors in the current assessment context in respect of BLU – that is, when the individual has no criminal history, and when a sustained finding of 'sexual misconduct' is based on retrospective interpretation of a pattern of conduct that is in dispute as to the motivation and meaning of the behaviours – taken in their totality over a period of time. In such situations, Dr Baron indicates that there is a disproportionate risk of error as a result of prevailing social and institutional fears and anxieties. 1. Mr McGrath noted Dr Baron's opinion that there is available a non-sexual interpretation of BLU's actions that is more psychologically plausible and evidence-based than the 'sexual offence' interpretation arrived at by the Risk Assessment Report. On this basis, Mr McGrath submitted that BLU should not be considered at risk of being prone to committing sexual offences. 2. Mr McGrath submitted that, in light of the evidence before it, the Tribunal should find that the evidence establishes that there is no real and appreciable risk of harm to children if BLU were to be granted a working with children check clearance, that the conduct in the past that triggered the risk assessment occurred a considerable time ago, was misinterpreted, and that BLU has modified his conduct subsequently to avoid any risk of misconception. 3. Mr Moore for the Children's Guardian agreed that following his investigations into BLU's behaviour, BSI, the principal of BSG, made findings not of grooming behaviour but rather of sexual misconduct by crossing professional boundaries. Mr Moore submitted that notwithstanding this fact, it had remained open to the assessor at the Children's Guardian to consider grooming behaviour. 4. Mr Moore agreed that the definition of grooming used by the Office of Children's Guardian was that set out in the NSW Ombudsman's publication, 'Defining Reportable Conduct.' 5. According to Mr McGrath, under this definition, behaviour should only be seen as 'grooming' where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and that there is no other reasonable explanation for it. 6. According to Mr McGrath, it is not explained in either the Risk Assessment or in the 'Reason to Issue s20 Notice of Decision bar' how the repetition of non-sexual conduct could constitute sexual grooming, particularly where there is a more plausible non-sexual explanation for the behaviour. Consideration of the evidence 1. The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of s27 of the Act it appears appropriate to have regard to both s30 (1) and s15 (4) considerations. That would fulfil the requirements of both sections, taking into account the nature of the administrative review. 2. The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act. The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar 1. BLU has not been charged with or convicted of any offences. The relevant assessment was caused by the finding of the principal of BSG that BLU had engaged in 'sexual misconduct' by means of crossing professional boundaries. In the subsequent risk assessment by the Children's Guardian, the finding of 'sexual misconduct' was accepted, but rather than by reason of crossing professional boundaries, the finding of 'sexual misconduct' was made on the basis of grooming behaviour by BLU. 2. According to the brochure by the NSW Ombudsman entitled 'Defining Reportable Conduct': there are three categories of sexual misconduct in addition to sexual offences: crossing professional boundaries; sexually explicit comments and other overtly sexual behaviour and grooming behaviour. 1. In relation to crossing professional boundaries, the brochure warns that particular care should be exercised before making a finding of sexual misconduct. For example, an employee who, on an isolated occasion, 'crosses professional boundaries' in a manner that involves little more than poor judgement could not be said to have engaged in sexual misconduct. Also, in cases where an employee has 'crossed boundaries' in terms of their relationship with a child, if there is evidence which clearly shows that the employee did not seek to establish an improper relationship with the involved child, then this does not constitute sexual misconduct….For employees who either intentionally breach such codes or have demonstrated an inability to apply them appropriately, it may be necessary to provide more written advice about what constitutes appropriate behaviour. 1. In relation to grooming behaviour, the brochure notes that as grooming is a sexual offence if the alleged victim is under 16 years old, caution should be exercised before reaching a grooming finding..Furthermore, behaviour should only be seen as 'grooming' where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and there is no other reasonable explanation for it. 1. Following the risk assessment report, the decision was made to proceed to decision bar: A sustained finding of sexual misconduct in relation to the applicant was made by BSG. The applicant engaged in certain behaviours with male students at 3 different places of employment over a 10 year period. When viewed collectively, the repetitious nature of the behaviour indicates a pattern, much of which aligns with the Ombudsman description of grooming behaviour…Given the considerable period of time over which the persistent and concerning behaviour occurred, the information provided by the applicant does not mitigate the concerns. For this reason, it is recommended that the matter proceed to Decision Bar. 1. The Tribunal accepts the respondent's summary that the investigations of BLU by BSG, culminating in the principal's finding of reportable conduct (but not grooming behaviour) involved: * photographs taken by BLU of students while he was employed at two of his former schools; * the nature of his relationship with three students, namely BSJ, BSM and BSH, including an email he sent to BSH; * photographs that were found on his work computer when it was examined by people associated with BSG. 1. In relation to the photographs taken by BLU of students while he was employed at two of his former schools and photographs found on his work computer when it was examined by people associated with BSG, the Tribunal makes the following findings on the basis of the evidence before it: * Whilst at BSE, BLU was the photographer for one of the school magazines and had resigned from this role when told by the principal not to take photographs anymore; * BLU continued a friendship with the parents of students from his previous schools. In the parents' presence and with their approval, BLU took photos of the students at sporting functions; * Photographs of students in swimming costumes were found on BLU's computer. Where they were not action shots, they were photographs taken on the blocks or steps of the relevant pool; * At BSF, BLU had been advised not to take photographs of students. 1. In relation to the nature of his relationship with three students, namely BSJ, BSM and BSH, the Tribunal makes the following findings: * The Tribunal is satisfied that when BLU became cognisant of the fact that BSH had formed an attachment to him, he sought advice from the student's year master and the children's parents were contacted. There is no evidence before the Tribunal that there was any sexual element in communications or contact between BSH and BLU; * The Tribunal is satisfied that BLU had been asked by the parents of BSM to monitor the boy's homework and that he had done so with the knowledge of the boy's class teacher. The Tribunal accepts that concern was expressed at the fact that BLU had been in a classroom with BSM and a second child. The Tribunal is not satisfied that the door was closed. There is no evidence before the Tribunal that there was either a sexual element to or a sexual intention behind BLU's contact with BSM; * The Tribunal is satisfied that in 1999 at a sporting match, BLU was approached by the mother of BSJ who asked if BLU could make himself available to her son for pastoral care and conversations. The Tribunal accepts BLU's evidence that he had driven the boy to sporting training on two occasions. A letter from the boy's mother contained on file corroborates BLU's evidence in this regard. On the evidence before it, the Tribunal is satisfied that there was no sexual intention or element in relation to BLU's contact with BSJ. Rather, the Tribunal is satisfied that the contact was at the request of the boy's mother and was in the nature of pastoral care. 1. The Tribunal finds that BLU took photographs in his role as school photographer and continued to photograph students from his previous schools with parental approval. It is possible that BLU did not immediately desist from photographing students when told to do so. This, the Tribunal agrees, is unprofessional conduct. There is, however, nothing before the Tribunal to satisfy it that there was a sexual element to BLU's behaviour in this regard. The Tribunal accepts the seriousness of the investigations in relation to BLU. On the evidence before it, however, the Tribunal is satisfied that there is a reasonable explanation for BLU's behaviour that is not consistent with grooming the alleged victims for sexual activity. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The matters occurred up to 2010. There are no reports relating to BLU's conduct since 2010. 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 1. At the time of the occurrence of the events said to trigger the risk assessment in this case, the relevant children were school students aged from 13 years through to 17 years. They were vulnerable because of their age and the fact that BLU was a teacher in their school. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The age difference was approximately 29 years. The victims were students and the applicant a teacher. Whether the person knew, or could reasonably have known that the victim was a child 1. The children were all children as defined in s5(1) of the Act and were pupils of the school at which BLU was a teacher. The person's present age. 1. BLU is 52 years old. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. BLU has no criminal record. The conduct found by the principal of BSG to constitute sexual misconduct occurred up to 2010. There has been no reported misconduct after this time. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. The Tribunal takes judicial notice of the fact that sexual misconduct towards school students can have severe ramifications for the students. 2. In the present case, however, the Tribunal finds that the conduct by BLU can been explained in a non-sexual way and as such does not constitute grooming as defined in the Ombudsman's publication Defining Reportable Conduct. 3. The Tribunal finds that the relevant behaviours showed a crossing of professional boundaries by BLU. It is for this reason that the behaviours are of concern. The Tribunal notes the findings of Dr Baron and the evidence of BLU that he has since modified his behaviour to ensure that future allegations of professional misconduct will not be made against him. Any other matters that the Children's Guardian considers necessary 1. It is the submission of the Children's Guardian that when considered as a whole, BLU's conduct amounts to a real and appreciable risk to children. 2. The Tribunal does not agree with this. Whilst the Tribunal accepts that BLU's behaviour crossed professional boundaries, that he was at times slow to take direction and that his friendships with the families of former students made him subject to allegations of inappropriate closeness to them, on the evidence before it, the Tribunal is not satisfied that there was a sexual element or intention to any of the conduct referred to in the risk assessment report by the Children's Guardian. On this basis, the Tribunal cannot be satisfied that BLU's behaviour was such to amount to 'grooming behaviour'. 3. The evidence provided by BLU to the Tribunal was open and detailed and, it seems to the Tribunal, genuine. In his report, Dr Baron, who is a psychologist specialising in the area of sex-offender assessment and treatment, makes the following assessment of BLU's risk to children: Given the above considerations – namely 1) the paucity of evidence in support of the 'sexual motivation/grooming' interpretation of his behaviours and general conduct, and 2) the weight of evidence supporting the alternative available interpretation of non-sexual motivation – on the current assessment BLU does not pose any real and appreciable risk to the safety of children. 1. The Tribunal sees no reason to discount Dr Baron's expert opinion in this this regard. 2. On the evidence before it, the Tribunal is not satisfied that when considered as a whole, BLU's conduct amounts to a real and appreciable risk to children. Conclusion 1. In this case, a working with children check clearance must be granted unless the Tribunal is satisfied that the person poses a risk to the safety of children. 2. In all the circumstances, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a working with children check clearance. Order 1. The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check clearance. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2015