Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CET v The Children's Guardian [2016] NSWCATAD 68 Hearing dates: 1 February 2016 Date of orders: 13 April 2016 Decision date: 13 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Mullane ADCJ, Principal Member E Hayes, General Member Decision: (1) The decision of the Children's Guardian of 10 September 2015 refusing grant the applicant a Working With Children Check Clearance is confirmed; (2) Any interim order is discharged; (3) Otherwise the Applicant's Application of 7 October 2015 is dismissed; (4) Publication or broadcast of the name or other identifying information of a child referred to in the judgment or of the applicant, or disclosure of the name or other identifying information of the school, is prohibited, except by leave of the Tribunal. Catchwords: Child protection – working with children- sexual conversations held risk to safety of children.- Legislation Cited: Child Protection (Working with Children) Act 2012; Administrative Decisions Review Act 1997 Cases Cited: M v M [1988] HCA 68; BKE v Children's Guardian [2015] NSWSC 523; Commission For Children and Young People –v- V [2002] NSWSC 949 Category: Principal judgment Parties: CET (Applicant) NSW Office of Children's Guardian (Respondent) Representation: Counsel: D McGorey (Respondent) Solicitors: Emil Ford Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510623 Publication restriction: Publication or broadcast of the name or other identifying information of a child referred to in the judgment or of the applicant, or disclosure of the name or other identifying information of the school, is prohibited, except by leave of the Tribunal REASONS FOR DECISION Introduction 1. On 20 February 2014 the applicant applied to the Children's Guardian for a Working With Children Check Clearance in order to continue his work as a teacher. The Children's Guardian conducted an assessment pursuant to the Child Protection (Working with Children) Act 2012 ("the Act"). 2. Considerable information was obtained from the applicant and from other sources, and in September 2015 the Children's Guardian wrote to the applicant advising him that the decision had been made to refuse the applicant a Working with Children's Check Clearance. The letter included summary of reasons for the decision. 3. The applicant's employment as a full time teacher was terminated because of the refusal to issue a Clearance. 4. This was the hearing of the applicant's application filed 7 October 2015 for a review of that decision of the Children's Guardian. Relevant Legislative Provisions 1. Section 4 of the Act provides: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 1. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 2. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 3. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 4. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 5. Section 12 of the Act provides that there are two classes of Working with Children Check Clearances which are: a) Volunteer – authorising workers to engage in unpaid child-related work; and b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work. 1. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance and requirements for the application. It provides: Applications for clearances 1. A person may apply to the Children's Guardian for a working with children check clearance. 2. An application must: 1. be in the form approved by the Children's Guardian, and 2. be accompanied by any other information required by the Children's Guardian, and 3. specify the class of clearance applied for. 1. The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force: 1. the conduct of a criminal record check in respect of the applicant, 2. the disclosure of the applicant's criminal history, 3. other inquiries about the applicant relevant to the application or clearance, 4. without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement. 1. The regulations may: 1. prescribe the fee payable for an application and the manner in which it is to be paid, and 2. require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children's Guardian. 1. An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children's Guardian. 1. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. None of those matters apply to the applicant, so he was not subject to an assessment requirement. 2. Section 15 in subsections (1) and (2) requires the Children's Guardian to carry out an assessment in specified situations, including an assessment requirement. These do not apply to the applicant. But subsection 15(3) provides that the preceding subsections "do not limit the circumstances in which the children's Guardian may conduct a risk assessment of an applicant or holder". 3. The Applicant on 20 February 2014 applied to the Children's Guardian for a Clearance. Pursuant to subsection 15(3) the Children's Guardian undertook an assessment. 4. Under Section 16 the Children's Guardian may request further information from an applicant for a clearance related an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request. 5. The Children's guardian obtained extensive material from the applicant and from numerous other sources. 6. Section 18 of the Act Provides: 18 Determination of applications for clearances 1. The Children's Guardian must not grant a working with children check clearance to the following persons ("disqualified persons" ): 1. a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, 2. a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 1. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 2. The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 1. Section 27 is in Part 4 of the Act and provides that a person refused a Working with Children Check Clearance by the Children's Guardian may apply to this Tribunal for a review of the decision of the Children's Guardian. Subsection 27(4) of the Act provides: "An applicant must fully disclose to the Tribunal any matters relevant to the application." 2. Subsection 30(1) of the Act applies to applications for review of a refusal of the Children's to grant a Working With Children Check Clearance. It provides: 30(1) The Tribunal must consider the following in determining an application under this Part: 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 Commission considers necessary. 1. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides: 63 Determination of administrative review by Tribunal 1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law. 1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 2. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: 1. to affirm the administratively reviewable decision, or 2. to vary the administratively reviewable decision, or 3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. The Evidence 1. The evidence before the Tribunal comprised: 1. The application for a stay filed 7 October 2015; 2. The application for a review of the decision filed 7 October 2015; 3. Copy of letter of 10 September 2015 from the Children's Guardian to the applicant notifying him of the decision and the reasons; 4. Bundle of documents filed by the respondent on 5 November 2015 indexed and tabulated and comprising 423 pages; 5. The report of Mr J Alberts, Consulting Clinical Psychologist, of 8 December 2015; 6. The applicant's statement of evidence of 14 December 2015; 7. Bundle of documents filed by the respondent on 20 November 2015 (1 document from NSW Police Force); 8. Bundle of documents filed by the respondent on 14 January 2016 being about 60 pages of documents provided by the Christian School; 9. Oral evidence of Mr Alberts on 1 February 2016; and 10. Oral evidence of the applicant on 1 February 2016. The Matters that Caused a Refusal. Alleged Indecent assault in Autumn 1988 1. In 2002 a formal complaint was made with the Anglican Diocese of Sydney alleging that CET had indecently assaulted a 13 year old boy in the Autumn of 1988. He was never charged for the alleged assault and the evidence does not disclose that the matter was reported to the police or that there was any police investigation. It was reported to the Anglican Diocese of Sydney, of which he was a member. Because he was a member of the Anglican Church and had been ordained by the Archbishop of Sydney as a Deacon in 2000, the Diocese conducted some form of investigation and then disciplinary proceedings in the Diocesan Tribunal. 2. At the time of the alleged assault he was travelling to Wollongong for work, study or for church commitments. He often stayed overnight on a Friday night at the family home of a friend and shared the bedroom of the friend's son, the complainant. The friend was a Minister of the Church and the home was a Manse. 3. Between March and June 2003 the Diocesan Tribunal of the Diocese of Sydney heard 2 charges against the applicant for disgraceful conduct. He was alleged to have: 1. Placed one of his hands on the pyjama pants of the 13 year old complainant and "held, stroked and fondled" the child's penis on a night in Autumn 1988 without the complainant's consent; and 2. When confronted by the complainant at the time of that conduct, he falsely asserted that the complainant had placed the applicant's hand on the complainant's penis. 1. The hearing of the proceedings by the Diocesan Tribunal, which included cross examination of the complainant and the applicant, was conducted over 7 days in March, April and June of 2003. The Tribunal comprised a judge as chair, a Queen's Counsel and 4 other persons. 2. It was alleged that offence occurred when the complainant was 13 ½ years of age and the applicant was 19 years of age. 3. The Diocesan Tribunal by a majority of 4 to 2 found the allegations were not proved and set out their reasons in less than 7 pages. The minority comprised the Acting Judge and the Queens Counsel. Their reasons were more thorough and extended to more than 30 pages. They found that the allegations were proved. 4. The complainant made a statutory declaration in 2002. Among the matters that he alleged were as follows: 1. In the 8 weeks before the alleged assault the applicant engaged him conversations, including questions about whether the complainant wondered if he was "normal?" and whether he had compared himself to "other guys", had "looked at other guys in the shower", or "had wet dreams", and the frequency of his masturbation. He asked him, "Do you want me to check you out?". The Complainant told the applicant he did not masturbate. 2. On a number of occasions when these conversations occurred, the applicant climbed out of the top bunk he occupied and laid beside the complainant on the bottom bunk. The complainant on those occasions made it clear that he did not want to talk to the applicant and the applicant usually returned to the top bunk. 3. On a Friday night in the Autumn of 1988 the complainant was woken when the applicant on the top bunk asked to talk to the complainant and then got into bed with the complainant. After asking the complainant about his School and youth group, the applicant asked the complainant if he ever worried "that you're not normal", and whether he "ever compared" himself with boys at school. When the complainant gave a negative response the applicant said "Come on. You must have compared with each other in the shower?" When the boy responded, "No, I'm not really interested in that", the applicant asked him "do you want me to check you out and make sure you are normal?". The complainant declined. 4. On that night the complainant told the applicant an invented reason for not masturbating which was that it was because of an injury to his testicles he suffered on a swing when young. 5. That same night, the complainant awoke during the night in his bed with an erection and felt the applicant's right hand holding and stroking the shaft of his penis on the outside of his pyjama pants. The complainant shifted the applicant's hand away and said "what the hell are you doing?" to which the applicant replied "What? You put my hand there". The complainant left the room. 1. Although the applicant denied the alleged misconduct, he admitted having slept in the same room as the complainant. He denied that he was sleeping in the bunk bed in the room or sharing a bed with the complainant. 2. In a written statement he admitted having conversations with the complainant about "his personal development", including sexuality, masturbation, and normality. But he denied that such matters were the normal topic of their conversations. He denied ever asking to see the complainant's penis or lying in his bed or touching him inappropriately. 3. In cross examination he admitted to a conversation with the complainant of which he said: "I think we were just generally chatting about school and things we were up to. I think I asked him generally in terms of, you know, 'is there much pornography around the school, have you seen much stuff?'. He said 'yes, there's quite a bit around'. I said 'do you often use it?'. he said 'no, not really'. I said 'do you think pornography is a problem?'. 'No'. 'do you masturbate? Is it a masturbation issue?' I think he answered that he didn't masturbate. I think I probably said, 'most guys do. It's nothing to be ashamed of'". 1. He alleged that such conversations did not occur in 1988, but in late 1989 or early 1990. 2. In their reasons the minority found that there was "…no personal ill-will or enmity towards the respondent evident in the [complainant's] evidence or demeanour". 3. The minority found that the applicant had asked questions that were inappropriate to ask a 13 year old boy at the time. It was inappropriate to probe him about such intimate personal matters. They also found that the applicant had an interest in matters of a sexual nature involving the complainant and initiated conversations about his sexual development and practices. 4. Before and during those proceedings, and also in a letter to the Archbishop, the applicant purported that the complainant could not be relied upon because "he was on drugs at the time". But in cross examination the applicant conceded that he had no first-hand knowledge of any such matters. The minority found that they were satisfied that there was no basis to find that the complainant was an unreliable witness because of any alleged drug use or involvement. The statement to the Archbishop was untrue. 5. But in oral evidence in chief before this Tribunal he was asked about the false allegation of drug use in his letter to the Archbishop. He testified that he was in shock after the allegations against him and "my boss "my boss suggested I write it…" and it wasn't clear whether the Tribunal wanted first-hand knowledge. He then lied to this Tribunal saying, "I had walked in on him smoking what I believed to be marijuana." He said "I spoke to him and he threatened me, 'if you tell anyone, I'll tell them. I'll get you into trouble by telling on you for something". He said "I didn't see it as an allegation, but as a kid being scared." 6. It is noted that in a statutory declaration of 26 August 2015 provided by the applicant to the Office of the Children's Guardian, he stated: "the allegation, which was thoroughly investigated and dismissed with a finding of not proven, was made by the young brother, of an old friend of mine. I had caught him taking illegal drugs as a way of trying to deflect getting into trouble from his parents was to make a threat against me. He did not use this threat at the time because I did not inform his parents of what had happened but believed that by being a friend and mentor to him I could save him from going the same way as his older brother had with drug use and promiscuous relationships." 1. Given his evidence to the Diocesan Tribunal in 2003 that he had no direct knowledge of the complainant using drugs, the allegation that he had caught the complainant taking illegal drugs was a fabrication. It appears that he also falsely represented to the NSW Commission for Children and Young People in 2005 in relation to a risk assessment being prepared that in 1987 he had caught the complainant smoking marijuana outside his parents' house and at the time the complainant threatened that he would say that the applicant had molested him if the applicant told the complainant's parents. That allegation of the threat is also different to the version he gave to this Tribunal in oral evidence. 1988 – Allegations raised at the Diocesan Tribunal hearing by complainant's brother. 1. At the hearing in the Diocesan Tribunal, the brother of the complainant was cross examined, and in the course of that cross examination alleged that on an occasion when he stayed at the home of the applicant in 1989, the applicant insisted that they sleep in the same bed, when other beds were available. He said that he was not comfortable with this and told the applicant, "Whatever you want, but if you touch me in the night, I'll hit you." According to findings of the minority in the Diocesan Hearing the brother in 1988 was 15 years of age. 2. He stated in his oral evidence that the applicant, during 1988 and 1989, asked him questions about masturbation. 3. Furthermore, he recalled an occasion when he was wrestling with his brothers and the applicant. He said that the applicant grabbed him from behind on the bed and pressed himself against the boy. He complained that the applicant held him around the waist in a spoon position with his erect penis pushed up against the boy. He said that he had to forcibly remove himself from the applicant's grip, and the wrestling then ceased. 4. At times in these proceedings the Applicant referred to the complainant's brother as his "friend". In his oral evidence in chief he testified that he and the brother were close friends, they talked about masturbation and "he had been confiding with me about sexual exploits – unsafe sex". He alleged the brother told him that his younger brother, who later raised the sexual assault complaint, "similarly engaged in unsafe sex" and the applicant said that was why he questioned the younger brother about sexual issues. This explanation came many years after the occasions. In statutory declarations he made on 23 July 2002 and 5 March 2003 and relied upon in the hearing before the Diocesan Tribunal he testified he could not recall how such conversation came up. The Tribunal concludes that the allegation of there being an issue of the alleged victim of sexual assault indulging in unsafe sex is false, as is the evidence that that gave rise to the relevant conversations. In about June 2000 – inappropriate remark to female adult 1. This complaint was made in about early to mid-2001 to the Anglican Church concerning a conversation the applicant allegedly had with an adult female congregation member. The Office of Children's Guardian's risk assessment date 9 July 2015 caused: 2. At the same time another member of the congregation, an adult female, disclosed that the applicant had made inappropriate sexual remarks to her around the time of June 2000. This complainant stated that she was pregnant at this time and the applicant asked her 'have your breasts changed since you were pregnant' to which she replied 'none of your business' but the applicant did not drop the subject saying 'well, have they? My wife says her did'. The complaint was investigated at the same time as the investigation of the complaint of sexual conversation with a 14 year old boy. Inappropriate conversation with a 14 year old male in November 2000 1. He said that when he worked at Springwood at the Anglican Church, he was responsible for "Youth". He said that the Youth Worker was dismissed in 2002 for "improper behaviour to young girls and women in the church". 2. A complaint was made in April 2001 to the Anglican Church concerning a conversation the applicant allegedly had with a 14 year old male in November 2000. It was alleged that after a youth group session at the applicant's home, the applicant had asked the boy intimate questions about masturbation and offered to "show him how [to masturbate]". It was alleged the applicant had asked the boy to stay behind after the other boys had left. It was recorded that the boy had told his 2 brothers about the incident the same night and subsequently disclosed the incident to his father when his father queried why boys were making derogatory remarks about the applicant. 3. It appears that the church investigated the matter and decided that there was no prima facie case to be met. 4. During the investigation, the applicant conceded that he talked with the boy about masturbation, but said it was in the presence of other youths, and the subject had been raised by the boy himself. He strongly denied offering to "teach" the child how to masturbate. He said that he tried to stress "what is important is how you masturbate….in the sense of not using pornography and not lusting and those sorts of things". 5. In his unsworn written statement of 14 December 2015, he said at paragraph 16: "I refer to page 4 of the respondent's bundle. I admit that I showed poor judgement on a few occasions in how I spoke to people. I now recognise that I should have not spoken with a teenager about masturbation without anyone else present. I should have had at least one other leader present for the conversation. At the time I thought the boy may not have been comfortable talking to more than one person. I deny ever having an intention to seek to establish an improper relationship with a child or teenager. I deny ever touching a child or teenager inappropriately. My intention during any conversations that I have had with children and teenagers about sex or sexuality were to help and/or educate them. I never sought any sexual gratification from such conversations". 1. The guidelines introduced for him from 24 April 2001 at the parish of Springwood and Winmalee Anglican Church were: 1. Do not teach publically on the sex issue at present so that it's not open to further misinterpretation, seen as obsessive or seen to be defending the current allegation. 2. Avoid initiating discussion of sexual issues with individual youth, under the age of 18. If a situation of pastoral concern arises with youth under 18, please discuss the issue with me and we will decide together how to proceed. 3. Avoid being alone with youth group members in any situation that could be misconstrued. 4. Be very careful about allowing youth their personal privacy and space so that they do not feel intimated or threatened. 5. Do not raise the issue of what took place last year with the four boys involved in the Year 8 group. 1. It emerged from his evidence in cross examination and some documents that after the complaint about the June 2000 matter, in August 2001 a meeting was held at the Springwood Anglican Church as a result of concerns of 5 or 6 parents about his teaching on sexual matters, including masturbation. It was an hour long meeting and in general approved the content of his teaching, but raised concerns at times about the manner in which he handled parent's questions. There were amendments to the guidelines introduced for his conduct in that regard. It was recorded by the pastor who was in charge at the time, "however, during the remainder of [the applicant's] 32 months at Springwood following the issue of these guidelines, I remained concerned and at times expressed these concerns about his over emphasis on sexual matters and sometimes clumsy and intrusive way he raised sexual matters with adults. Further more detailed guidelines were implemented in March 2003 and June 2003 because of these ongoing concerns". 2. Guidelines introduced in March 2003 provided for him to have a co-worker with him in all SRE classes and ISF meetings. They required "Before any house party, conference, retreat or camp goes ahead with your involvement, please ensure there is an older couple enlisted to act as 'house parents'". 3. In cross examination about his work with the youth group at this time, he said he was "teaching what the bible taught about masturbation" and said the boys were in school years 9 to 12. He said the topics included Masturbation, celibacy before marriage, dating, marriage, and how to treat women. He said the sexual matters he taught about included "masturbation, pornography, and lust". 2004 – Complaints to a Reverend 1. The Reverend in question worked in the same parish as the applicant in the 2000's. She first disclosed in 2003 that she knew a boy and a girl who had made allegations against the applicant, although these were confidential and she could give no details. In 2013 in response to a Professional Standard Unit query about the applicant, the Reverend stated that she recalled that 2 males and 1 female had made complaints about misconduct that occurred in the context of a Youth Group that the applicant was running. 2. The records of the Office of the Children's Guardian recorded: "The complainants came to the Reverend's attention as one male and the female were receiving counselling through the church in 2004 when they disclosed the misconduct allegations. The other male came to the attention as someone who may require counselling – this male may have been the complainant who raised allegations in 2002 of sexual assault in 1988. The Reverend reported that the female's complaint regarding her feeling uncomfortable around the applicant due to inappropriate physical contact, including lengthy hugs, sitting too close, and his placing his hand on her knee and around her shoulders. There is no information as to what the other complaints involved and the Reverend confirmed that none of the complainants wanted to do anything further about the matter and due to confidentiality in counselling no further information was available" 1. The applicant denies ever putting his hand on a child or young person's knee or ever working in the same parish as the female Reverend. The applicant concedes that at times he "may have hugged young people" when there was a function at his home after the suicide of a Youth Group member, but he said he did so in the view of many other people. 17 February 2005 – Department of Education Action 1. Records of the Department of Education and Training Child Protection Investigation Director revealed that on 26 June 2003 the principal of the Springwood High School notified Employee Performance and Conduct Unit (EPCU) that it had received a letter from a student teacher about the applicant. The student teacher had alleged that she spoke with a young man in 2002 who told her that the applicant had made sexual advances towards him. The teacher also reported being informed by "a source" that the applicant had approached 2 other young men, and that one approach was of a sexual / verbal nature and the other involved him rubbing the leg of the young man. 2. The principal advised that he was not aware of any allegations of impropriety against the applicant. The student teacher informed EPAC that the complainants were unwilling to have their details provided to EPAC. 3. It was considered that allegations were possibly the same allegations heard before the Diocesan Tribunal in 2003. 4. At the conclusion of the investigation and risk assessment conducted by the Child Protection and Investigation Directorate in February 2005, the applicant was placed on a list of people not to be employed in any capacity in NSW Government Schools or TAFE, NSW Institutes. Early 2014 – Anonymous letters to the Christian School 1. The applicant worked at the Christian School from 2006. In 2005 the school had received a notification from the Commission for Children and Young People that it had assessed the applicant to be a "low level of risk". 2. In early 2014, 2 anonymous letters were received by the school that referred to past allegations made against the applicant (quite likely the allegations that were the subject of the Diocesan Tribunal proceedings).and raised concerns about his employment at the school. Consequently, the school requested the applicant to apply to the Office of Children's Guardian for a Working With Children Check Clearance. 23 September 2014 – Complaint received by the Christian School 1. The school received a complaint dated 23 September 2014 from a female pupil of the applicant in a year 6 primary school class. In the letter she said that she was explaining "a few of the reasons why I am uncomfortable in [the applicant's] class". It listed 7, and number 2 was as follows: "When we are in health he talks about very inappropriate things and I am sure they are not in the teaching curriculum. I don't think we need to know that he shaves his chest. When the class is reading the Bible he makes a big deal of sexual things in the passage, or he makes it seem sexual. Then I get really disturbed because when I am reading the Bible at home I see all those passages in that way now. [The applicant] always tells us that he is relating the health topic to the Bible teachings, but I am not comfortable with him relating every possible passage with health. It is putting me off the 20 minutes of devotions every day. I also find it disturbing when we are going through something in health and he relates it back to himself and his kids". The Seriousness of the Complaints 1. The Tribunal finds that the allegations of sexual assault in 1988 are serious. At the time the offence of indecent assault on a person under 16 carried a maximum sentence of 6 years imprisonment (Crimes Act 1900, s 61E(1A)). The applicant falsely testified the alleged child victim was involved with drugs to discredit him. He has also falsely alleged the child threatened to raise allegations against him if he told the child's parents the child was involved with drugs, sand later that the child said he would accuse him of "molesting" the child. 2. There is a pattern of complaints of conversations, mostly with teenagers, but particularly with children that are about sexual matters, but would have been inappropriate in the physical circumstances, given his relationship with the person and the relative immaturity of the person. The allegations extend from 1988 to 2014 – a period of 26 years. The allegations suggest a strong interest in raising sexual issues with children. 3. The allegations in relation to inappropriate sexual conversations with children are serious. Some such conversations, if true, would appear to be attempts to establish intimacy with the child. They could amount to grooming of a child for sexual purposes. Some, if true, would not just be inappropriate, but suggest that the applicant actually obtains sexual gratification by talking inappropriately to children about sexual issues. That too would be a risk to children. When he was asked in this hearing on 1 February whether he derives sexual gratification from such conversations, he replied, "not at all". The Period of time since those matters allegedly occurred and the conduct of the person since they occurred. 1. It is more than 27 years since the alleged sexual assault. 2. It is about 27 years since 1988 when inappropriate conversations were alleged to have been made with boys. 3. It is about 15 or 16 years since November 2000 when there was alleged to have been inappropriate conversations. 4. It is about 1 or 2 years since the most recent allegation. 5. On cross examination the applicant was at times evasive and in respect to 1 question had to be asked several times. 6. In relation to a letter he wrote to the Archbishop, he falsely alleged that the boy had had a job in a butcher shop, had worked there a short time and then left, and told the applicant that the butcher had tried to 'feel him up' in the cool room, so he had punched him, taken money from the cash register and then left. 7. He also said "when I pressed him to tell his parents or go to the police he also refused". 8. These allegations were untrue. The boy had not worked at a butcher shop. 9. There was also an allegation that he raised with the Archbishop that one night when he was sharing a room with the complainant, he came to bed late and whilst he was getting changed, he looked up to see [the complainant] had been watching me undress. "He was clearly embarrassed by this and asked me not to tell his parents. I told him that I wouldn't and that most guys had taken a look at other guys while they were changing just to compare how they were going, and that it didn't mean anything. It certainly didn't mean that he was gay". 10. When asked about his denial in the Diocesan Tribunal that he had any direct evidence that the complainant had been using drugs, he said that he didn't and it was false to say that. He said that what he said was false, but then said "I was confused at the time and unsure if it was 'first-hand knowledge'". 11. He was asked how he was confused and then he answered "I wasn't sure it was drugs he was using". 12. The applicant relied on a statutory declaration made on 26 August 2015. In relation to the alleged inappropriate conversations in 1988 he said: I did, at the time, have some conversations which in retrospect were unwise to have, but it was 27 years ago and I was 19, and it hadn't occurred to me that they would later be used against me. He was, however, sexually active and far more aware of many things than I was at that stage, even though several years younger". 1. This is concerning because it raises further unsubstantiated allegations against the alleged child victim and there is no evidence to substantiate the allegation that the 13 year old boy was "sexually active and far more aware of many things than I was at that stage, even though several years younger". It appears to be false. 2. Furthermore more recent allegations relate to times when he was not young or immature. 3. He says later: "I did have some awkward conversations whilst working for the church at Springwood, but they were under the direction of the Senior Minister at the time….. When I began to work at the church he directed me to make sexual curiosity a high priority due to the fact that one year earlier 2 Youth Group leaders had slept together and the girl had fallen pregnant, but both were dating different people in the church at the same time. This had caused great issues for the church and 4 families directly affected and wider ripples beyond those families. During my time I was also required to step a few leaders down from positions due to sexual inappropriateness. This was never popular, but all cases were carried out with the knowledge and advice of [the Senior Minister]. Once the allegations surfaced, however I became more careful with conversations and changed how I dealt with people. I was following the directions of my supervisor, although in retrospect would not have made some of the decisions I did if I had suspected there was any kind of allegation likely to be made. It was a total shock when it was made and I changed a number of ways I operated after it". 1. In this evidence he appears to seek to blame the Senior Minister for any inappropriate conversations about sexual issues he then had with people including children. 2. He said that after the Diocesan Tribunal decision he met regularly with the Archdeacon "to discuss roles and responsibilities and leaderships and methods of dealing with standards within the church". He did not say that this addressed the issue of inappropriate conversations about sexual matters with children that was raised at the Diocesan Tribunal hearing. 3. There is no evidence that at any time the Applicant has sought any counselling, therapy or professional help to address any sexual interest he might have in children. 4. In his statement of 14 December 2015, the applicant said: My responses to the allegations I am an outgoing person with a strong personality. I have strong views and opinions and am comfortable sharing them. Reflecting on my past behaviour, I recognise that this has caused me some difficulties in the past and I have said things in ways that I should not have. I acknowledge that my conversations with the complainant in 1988 were unwise. I was 19 years old and can-now see that having a one on one conversation with a younger teenage boy about sexuality was not wise. I also acknowledge that it was unwise for me to talk one on one with a teenage boy at the church at Springwood in about 2000. I recognise that it would have been better for both me and the boy to have had another leader present. Since these incidents, and especially at the Christian School, I have sought mentoring and leadership training to help me to communicate more effectively and to avoid mistakes I have made in the past. I truly hope that my past mistakes have not harmed children and I am committed to continuing to develop my personal and professional skills to become a better person and teacher As far as I am aware, the only concern about me since 2000 is the letter in 2014. 1. In his evidence at the hearing in these proceedings, the applicant said that he wouldn't have such sort of conversations with young people now because at the time "I was younger and more naïve". 2. He said that in 1998 "I was concerned for both those boys, but probably put them under too much stress". He said that he hasn't since had any conversations with any young persons about such topics. 3. However, the evidence is that he has. The age of the person at the time of the alleged matters. 1. He was 19 at the time of the alleged sexual assault and inappropriate conversations in 1988. 2. At the time of the alleged events in November 2000, he was almost 32 years. 3. At the time of the matters complained of allegedly occurring in 2014 he was about 46 years of age. The age of each victim of the alleged conduct and matters relating to vulnerability. 1. In 1988 the alleged victim of a sexual assault was 13 ½ years. His brother was 15 in 1988 and in 1989 about 16. 2. The allegations all relate to alleged child victims, except the complaint by an adult female. The children also, apart from the 1988 allegations, were primary school students and he was their teacher, or they were members of a church Youth Group or other Youth Group, of which he was an adult leader. 3. The children were vulnerable in their relationship with him because of his greater age, experience and maturity, and also because of his position and authority as teacher / carer / supervisor / leader. The difference in age between the alleged victims and the person and the relationship (if any) between the victim and the person. 1. With the alleged victim of sexual assault in 1988 it was about 6 years – that was a substantial difference in age given the boy was only 13 years of age. 2. With the older brother of that alleged victim it is not known. 3. The other differences in age between the applicant and the alleged victim have been greater. 4. With the 2014 complaint it was about 35 years. 5. The relationship between the applicant and the alleged victim(s) have been discussed. Whether the person knew or could reasonably have known that the victim was a child 1. In each instance except the complaint by the adult female and possibly the elder brother of the 1988 complainant, the applicant knew that the alleged victim was a child. The Person's present age 1. The applicant is 47 years of age. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred 1. The applicant has no criminal record. 2. Some relevant conduct in the period since 1988 has been discussed above. He is a married man with a wife and 6 children. 3. His involvement with teaching and children is as follows: 1. 1982 – 1987 – Sunday School teaching; 2. 1985 – 1995 – Scripture Union Family Mission; 3. 1986 – 1989 – Youth Group Leader; 4. 1987 – 1989 – Band Director – Primary School; 5. 1987 – 2003 – ISCF Leadership conference leader / speaker / co-director; 6. 1987 – 1990 – Musical Tutor – public school; 7. 1987 – 1988 – Casual teaching in public schools; 8. 1990 – 1995 – Full time teacher at public primary school; 9. 1990 – 1996 – Sunday School Director; 10. 1996 – 1997 – Band tutoring for a public school; 11. 1997 – 1999 – Youth Group Leader for a church; 12. 2000 – 2003 – Youth & Young Adult's Pastor; 13. 2000 – 2003 – Scripture Teacher and Co-ordinator for 2 public schools; 14. 2000 – 2003 – Scripture Teacher at a public school; 15. 2003 – 2015 – Chairperson of a Support Group; 16. 2004 – 2005 – Casual teaching at independent schools; 17. 2006 – 2010 – Permanent teacher at Christian Primary School. 1. He has the following qualifications: 1. Master of Education; 2. Diploma of Teaching; 3. Teacher's certificate; 4. Graduate Diploma in Expressive and Performing Arts; 5. Bachelor of Divinity; 6. Diploma of Ministry 1. It appears that his positions as a full time teacher have been from 1990 to 1995 at a public primary school and from 2006 – 2015 the Christian primary school. The likelihood of any repetition by the person of the conduct alleged and the impact on children of any such repetition. 1. The impact on a child of a sexual abuse can be seriously damaging to the emotional and mental health of the child and can have very long adverse effects. Suicide can be a consequence. 2. Inappropriate conversations by an adult with a child about personal intimate sexual issues can cause the child confusion, embarrassment, irritation, discomfort and anger. It can be a form of emotional abuse. It may cause longer term adverse effects, particularly if repeated. 3. It may be used by an adult to achieve intimacy with the child as grooming for sexual abuse of the child. Clearly requests to "check out" a boy's penis or show him how to masturbate are examples, but conversations of intimate sexual mater can be used to establish intimacy to help facilitate sexual abuse. 4. It is established that in deciding whether an adult poses a risk to the safety of a child or children, it is not necessary to make a positive finding on an allegation of abuse. (M v M [1988] HCA 68; BKE v Children's Guardian [2015] NSWSC 523). 5. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq, in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is 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 'risk' with the words that follow, namely, 'to the safety of children'. 1. The applicant engaged Mr J Alberts, a clinical psychologist, to prepare a report for use in these proceedings. There is an issue as to how much insight the applicant has in relation to inappropriate sexual conversations with children. In some of his responses to some of these issues, he appears to believe that conversations were appropriate, but should have occurred in the presence of some other adult(s). 2. Mr Alberts reported: "[CET] deeply regrets any negative impact that his behaviour has had on others and in particular the students / teenagers. He said that he it was always his intention only to help, but now understands that he was too ready to advise and give council. He now understands that people need to find answers for themselves and find their own way. I asked [CET] whether he thought his comments and questions regarding sexuality harmed the teenagers / students. His response was that he certainly hoped it did not. He feels that students should have the opportunity to ask questions and get good answers, but not in such a way that it causes a negative reaction. He said that he presently tries to steer away from these topics and closely monitors his own behaviour in this regard". 1. Although Mr Albert included in his report a conclusion that the likelihood of the applicant committing physical sexual abuse was small, there are qualifications to that opinion: * He thought that it was crucial as to whether the applicant had developed insight and he was of the opinion that the applicant had developed that insight and this had happened ever since 2002. But the evidence before the Tribunal is that his inappropriate conversations with children about sexual matters have continued well beyond that. * He accepted the applicant as truthful and largely relied upon his version of events, whereas the Tribunal considers he is not a reliable witness; * Mr Albert is not a forensic psychologist and has little experience with sexual offenders; * When asked about possible use of the Static-99, a risk assessment tool for adult sexual offenders commonly used in predicting risk in similar cases before the Tribunal, he said he was not aware of it. * He had not been provided the reasons of the minority in the Diocesan Tribunal ; * It does not appear from his report precisely what documents relied upon by the Children's Guardian were provided to him for preparation of his report. it appeared he was not informed of the extent of the sexual conversations with children that were the subject of complaints; * He wrongly thought that the mentoring and counselling the applicant had undertaken was (with other matters) addressing the problem of the applicant conversing with children about intimate sexual matters, when it had been only in relation to his outspoken behaviour that has caused him problems in the workplace. * He applied the SVR – 20 (Sexual Violence Risk) model using an assumption that the alleged sexual assault in 1988 did not occur whereas on all the evidence this Tribunal is of the view that there is a very strong possibility that it did. * He said he relied upon the majority decision of the Diocesan Tribunal, but then conceded that it was not a finding that the assault did not occur; only that it was not proved; * The applicant told him the conversation in November 2010 with a 14 year old boy arose because the boy asked him a question "about sex and the bible and he responded openly and he didn't reflect on that behaviour as being inappropriate". It seems to be common ground the conversation was significantly different to what the applicant told him. 1. In his cross examination at the hearing, the applicant conceded that his conversations with the complainant in 1988 and with the 14 year old boy in November 2000 were "inappropriate". He said he had developed that insight when it was raised in the Diocesan Tribunal in 2003. 2. Despite that evidence at the hearing the Tribunal is concerned that the Applicant still does not acknowledge that his questions or discussions with children or adults about personal or intimate sexual issues are likely to be embarrassing, threatening and uncomfortable for the person regardless of how many adults or other children are present. They are inappropriate and emotionally abusive. The Tribunal is concerned that he does not have real insight into this and has no reasonable empathy for children exposed to such conduct, or, even if he does have insight, he has still persisted with such conduct. 3. Eventually in his cross examination, Mr Albert conceded that if there were an assumption that the 1988 sexual assault allegations were true, then the likelihood of the Applicant reoffending would be "low to moderate" . Any information given by the applicant in, or in relation to the application. 1. There is no such further information relevant to the decision. Any other matters considered necessary. 1. There are no such further matters. Conclusions 1. The Tribunal is satisfied that there is a strong possibility that the alleged sexual assault in 1988 occurred. In the context of that finding the other allegations and the applicant's explanations are more significant. 2. The Tribunal finds that the applicant is a real and appreciable risk to the safety of children in terms of sexual abuse and emotional abuse. The decision to refuse him a Working With Children Check Clearance should be confirmed and the application dismissed. Publication and Privacy 1. The children referred to in these reasons and the applicant should have the benefit of an order to protect them from public ridicule, and speculation and from serious embarrassment likely if they are identified in any published report of these proceedings. 2. There should therefore be a non-publication order under s 64 of the NSW Civil and Administrative Tribunal Act 2013. Orders 1. The orders of the Tribunal are: 1. The decision of the Children's Guardian of 10 September 2015 refusing grant the applicant a Working With Children Check Clearance is confirmed; 2. Any interim order is discharged; 3. Otherwise the Applicant's Application of 7 October 2015 is dismissed; 4. Publication or broadcast of the name or other identifying information of a child referred to in the judgment or of the applicant is prohibited, except by leave of the Tribunal. 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 April 2016