Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CXS v Children's Guardian [2017] NSWCATAD 351 Hearing dates: 21 August 2017 Date of orders: 29 November 2017 Decision date: 29 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Roberts, Senior Member B Field, General Member Decision: (1) The decision of the Children's Guardian dated 20 December 2016 to refuse to grant the applicant a Working with Children Check clearance is affirmed. Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) – cancellation of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal –whether the applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Commission for Children and Young People Act 1998 (NSW) Cases Cited: BJB v NSW Office of the Children's Guardian (No. 2) 2014 NSWCAT 164 BKE v Office of Children's Guardian [2015] NSWSC 523 BSR v Office of the Children's Guardian [2015] NSWCATAD 264 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 M v M (1988) 166 CLR 69 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88 Category: Principal judgment Parties: CXS (Applicant) Children's Guardian (Respondent) Representation: Counsel: I Collins (Applicant) M Giacomo (Respondent) Solicitors: NSW Crown Solicitor's Office (Respondent) File Number(s): 2017/00015951 Publication restriction: Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Restriction against the publication or broadcast of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons REASONS FOR DECISION Summary of judgment 1. The applicant, referred to as CSX, is a 66 year old man who worked as a school teacher for 14 years until mid 2014. In 2004, charges were brought against the applicant as a result of allegations made by a girl (referred to as BC) that the applicant had sexually abused her from the age of 9 to 13 years. BC was a student at the school where the applicant was a teacher; she was a friend of the applicant's daughter and her mother and family had become friends with the applicant and his family. Adverse findings were made against the applicant by his then employer, the Department of Education and Training (DET) (as it was then known), with respect to the same allegations. 2. The applicant applied for a Working with Children Check (WWCC) clearance on 17 November 2014. The respondent refused to grant the applicant a WWCC on 20 December 2016. 3. The applicant has brought these proceedings under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) seeking a review of the respondent's decision on 20 December 2016 to refuse to grant him a WWCC clearance. 4. The Tribunal refuses and dismisses the applicant's application to review the respondent's decision and affirms the respondent's decision to refuse the applicant a WWCC clearance on the basis that the Tribunal is satisfied that the applicant poses a real and appreciable risk to children. Non-disclosure order 1. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal. The Evidence 1. At the hearing, the applicant relied upon the following material: 1. an Administrative Review Application Form filed with the Tribunal on 11 January 2017 with attachments (Exhibit A1); 2. a statement by the applicant dated 26 April 2017 filed with the Tribunal on 1 May 2017 (Exhibit A2); and 3. a statement in reply by the applicant dated 19 July 2017 filed with the Tribunal on 21 July 2017 (Exhibit A3). 1. The applicant also relied upon written submissions filed on 16 August 2017 and the solicitor for the applicant made oral submissions on 21 August 2017. 2. The applicant gave oral evidence in chief and was cross examined by Ms Giacomo, Counsel for the respondent. 3. The respondent tendered into evidence the following material: 1. a bundle of documents titled Documents filed on behalf of the by the Respondent pursuant to section 58 of Administrative Decisions Review Act 1997 Volume 1 of 2 filed on 11 March 2017 (Exhibit R1); 2. a bundle of documents titled Documents filed on behalf of the by the Respondent pursuant to section 58 of Administrative Decisions Review Act 1997 Volume 2 of 2 filed on 11 March 2017 (Exhibit R2); 3. a bundle of documents titled Further Documents filed by the Respondent Volume 1 of 3 filed on 23 June 2017 (Exhibit R3); 4. a bundle of documents titled Further Documents filed by the Respondent Volume 2 of 3 filed on 23 June 2017 (Exhibit R4); and 5. a bundle of documents titled Further Documents filed by the Respondent Volume 3 of 3 filed on 23 June 2017 (Exhibit R5). 1. The respondent relied upon written submissions filed on 4 August 2017 and Counsel for the respondent made oral submissions to the Tribunal on 4 August 2017. The Legislative Scheme 1. The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The Act states: The object of this Act is to protect children: 1. by not permitting certain persons to engage in child-related work; and 2. by requiring persons engaged in child related work to having working with children check clearances. 1. Section 4 of the Act provides that the 'safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act. 2. 'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning. 3. Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both. 4. The Act contains a similar prohibition on an employer, employing or continuing to employ a person in 'child related work' where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant WWCC clearance or there is no current application by the person for such a clearance. 5. Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act). Risk to children 1. The test to be applied by the Tribunal in considering the application, is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said: One does not define risk as meaning minimal risk. One would… 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 word 'risk' with the words that follow, namely 'to the safety of children'… 1. In M v M (1988) 166 CLR 69, the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. The two propositions have been recently summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14] to [17] as follows: The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare." Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute. Onus and standard of proof 1. Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. There is no requirement for the applicant to show that the original decision maker's decision was wrong (Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88). There is also no onus on the applicant to show that he is not a risk to children. 2. The standard of proof applied is the civil standard, that is, the balance of probabilities. Summary of evidence 1. The matters that "triggered" the risk assessment of the applicant by the respondent when he applied for a WWCC clearance on 17 November 2014 were: 1. charges brought against the application in 2004 arising from allegations by BC that the applicant had sexually abused her for a period of five years when she was between the ages of 9 and 13 years of age (the Police Charges); and 2. adverse findings against the applicant in July 2006 by DET, his then employer, as to the allegations made by BC resulting in the applicant being placed on the "Not to be Employed" register (the DET Findings). 1. Evidence was also put before the Tribunal relating to: 1. a determination by the Department of Community Services, as it then was, now Department of Family and Community Services (FACS), in 2004 that the applicant was a "person causing harm" to BC (the FACS' Decision); and 2. an application for an Apprehended Violence Order (AVO) brought by NSW Police for the protection of BC from the applicant (the AVO Proceedings). The Police Charges 1. The applicant taught at the school BC attended and knew her and her family for approximately 8 years on account of being her teacher as well as BC being a friend of his daughter. As a result of this connection between the applicant's family and BC's family, BC and her sister, CD, slept at the family home of the applicant on occasions. 2. The applicant's evidence is that on 25 May 2004, BC's mother told him BC had told her the applicant had engaged in improper conduct with BC. The applicant states BC's mother told him of these allegations in the context of BC's mother asking the applicant to repay money she had lent him for building works. On 17 June 2004, the applicant "self-reported" the allegations to the principal of the school. The applicant has consistently denied all allegations made by BC. 3. As a result of the applicant reporting BC's allegations to the principal of the school and the principal informing DET of the allegations, BC was interviewed by the Joint Investigation Response Team (JIRT) on 9 September 2004. BC made a number of allegations during that interview that she had been sexually abused by the applicant from March 1999 to March 2004. 4. The applicant was charged on 13 September 2004 with the following offences as a result of BC's allegations: 1. aggravated indecent assault (three counts); 2. attempted sexual intercourse with a person under the age of 10 years; 3. sexual intercourse with a person under the age of 10 years; 4. aggravated sexual assault; and 5. persistent sexual abuse of a child. 1. The substance of the allegations made by BC that resulted in the charges against the applicant were summarised in the written submissions filed by the respondent on 4 August 2017 and are reproduced below: 1. Incident 1 Aggravated Indecent Assault (Child) - That when BC was 8 years of age: 1. BC was sleeping at the applicant 's home on the lounge room floor. 2. BC was woken up by the applicant nudging her shoulder. 3. The applicant was in front of her. When she opened her eyes she saw the applicant's penis near her face. 4. The applicant touched her face with his penis and she felt that it was hard and slimy. 5. The applicant tried to put his penis in BC's mouth but she kept her mouth closed. 6. He tried to open her mouth with his fingers but she locked her jaw preventing him from opening her mouth. 1. Incident 2: Aggravated Indecent Assault: In March 2004 (when BC was 13 years of age): 1. BC was sleeping at the applicant's house in the TV room. 2. BC was awoken by the feel of cold rough hands on her breast. The applicant touched BC's breast by putting one had down the front of her top. She turned to stop him from doing this. 3. The applicant went away and came back a short time later and placed his hands under the blanket and began rubbing BC's lower leg up to her thigh. She kicked the applicant to stop him. 1. Incident 3: Aggravated Indecent Assault - When BC was 10 years old: 1. The applicant collected her from a dance lesson in his car and drove her to a park near her home. 2. BC got out of the vehicle intending to walk home. 3. The applicant pushed BC against the car and tried to pull her pants down. He said "come on let me take them down". 4. The applicant put his hand down the front of BC's underpants and rubbed her pubic area. She tried to resist him. After about 5 minutes the applicant gave up and drove her home. 1. Incident 4: Aggravated Indecent Assault - When BC was 11 years old: 1. The applicant picked up BC from the corner shops. 2. He drove to a park and BC got out of the car. The applicant pushed her onto the back seat of the car and pulled her shorts and underpants down to her calf. She felt slobber on the inside of her legs and said he licked her for a few minutes. 1. Incident 5: Aggravated sexual Assault of a child under 10 - when BC was about 9 years of age: 1. BC was sleeping in the lounge room. She was awoken by the applicant who asked her to lay down with him. 2. She lay down with the applicant and he pulled her underwear and pants down and placed his erect penis inside her vagina. 1. BC's allegations of sexual abuse by the applicant were corroborated by: 1. statements by a friend in an interview with JIRT where she stated that BC had told her that the applicant had been touching her inappropriately since she was 9 years old; BC had presented as being distressed; BC had said she was scared to tell anyone because the applicant was friends with her mother; and BC had told her she had been talking to a person at the Kids Helpline about the allegations: 2. statements by BC's sister, CD, in an interview with JIRT that BC had told her of the allegations and did not want to tell their mother (though did so a couple of days later); 3. BC's mother's statement to police that BC had told her of the allegations; and 4. a statement by a counsellor at Kids Helpline that BC had told him of the allegations when they spoke on the telephone on eight occasions between 8 June 2004 and 20 October 2004 and he noted: "congruence between [BC's] affect/levels of distress and the contents of her reports, consistency in her reports across time and similarities between the reported victims of sexual abuse and assault and the detailed information given by [BC] during our sessions about her wellbeing…" 1. The Director of Public Prosecutions (DPP) determined there was not to be any proceedings with respect of the criminal charges and the matter was "no billed" in May 2005. A letter from the DPP to Sparke Helmore Lawyers dated 8 November 2006 stated "it was determined that there was no reasonable prospect of conviction on any of the charges. The reluctance of the complainant to give evidence in court proceedings was a factor in this determination". 2. The applicant subsequently sued the NSW Police for malicious prosecution and the matter was settled in favour of the applicant for $150,000. FACS' Decision 1. As a result of the allegations made by BC to JIRT on 9 September 2004, FACS substantiated and categorised the harm to BC as "sexual abuse" and categorised the injury as "vagina/anal trauma" and determined the applicant was a "person causing harm" (PCH) to BC. 2. Following an application by the applicant to FACS in December 2013, the applicant was advised he had been assessed as being a PCH to a young person in relation to the allegations made by BC. The applicant applied for a review of that information and upon its review, FACS determined the information was correct. 3. In January 2015, the applicant filed for administrative review of the FACS decision. The proceedings were settled by consent orders and FACS records were amended with the notation that the applicant denies the allegations made against him; that the criminal proceedings were "no billed" and the AVO proceedings were dismissed. 4. Counsel for the respondent informed the Tribunal that BC contacted FACS in June 2017 to express her concerns that the applicant may be employed as a teacher again. AVO Proceedings 1. An application by NSW Police for a final AVO for the protection of BC from the applicant was heard by the Local Court on 13 September 2005 and 7 November 2005. The following witnesses gave evidence and were cross examined: 1. A member of the NSW Police; 2. BC; 3. BC's mother; 4. the applicant's daughter; 5. the applicant's partner; and 6. the applicant. 1. The magistrate declined to make the final AVO and made the following comments in his judgement: 1. the interim AVO had been in place for 12 months without incident; 2. it is conceded by BC there has never been any verbal abuse, physical violence or threats of violence; 3. BC "was a confident witness having regard to her age and who maintained her account with some consistency"; 4. BC's account was corroborated by what she told a friend, her sister and her mother; 5. BC's mother was a "combative, defensive, non responsive witness even allowing for her emotional distress"; and 6. "there was of course a considerable delay in reporting the allegations in this matter, that is not uncommon in cases of this kind and can be explained in many ways, I do not place too much weight on delay in complaint to young children. However no report was made by the alleged victim or her mother when disclosure was ultimately made. The defendant drew it to the attention of authorities. It is also not without significance that the complaint scenarios are in some respect implausible in my view, in terms of their time, location and in some cases the close proximity of [the applicant's daughter]. Moreover, some of the allegations raised by [BC's mother] in paragraph 13 were never pursued". DET's Findings 1. In September 2005, DET investigated twelve allegations about the applicant's conduct with respect to BC and members of her family: six of the allegations are the same as the allegations that resulted in the "Police Charges" referred to above. The material considered by the DET included BC's interviews with JIRT and other information obtained initially in support of the allegations; the police brief and the transcript of the AVO proceedings. 2. The allegations, the relevant evidence, the applicant's response and the DET's findings as set out in the DET report are summarised below: 1. Allegation 1 During 1998, at the applicant's home, the applicant woke up BC and showed her a pornographic video "depicting naked girls sucking the penises of naked guys". The evidence in support of the allegation were disclosures BC made during the JIRT interview on 9 September 2004 and information provided by her mother. There were no witnesses. The Applicant vehemently denied the allegation. DET determined there was insufficient evidence to support a breach of discipline and the available evidence did not substantiate an allegation of reportable conduct. 1. Allegation 2 On the night of 4 March 1999, at the applicant's home after guests had left following the celebration of his birthday, the applicant woke up BC and tried to put his penis in her mouth. The evidence in support of the allegation were disclosures BC made during the JIRT interview on 9 September 2004. BC provided extensive details about the allegation during her JIRT interview and she described consistently and in detail how the assault took place. The Applicant vehemently denied the allegation. DET determined that "taken in isolation there would be insufficient evidence to support a breach of discipline. However given the additional allegations of a similar nature, which span a period of several years and which are described by [BC] with consistency and in detail, there emerges a pattern of conduct which gives credibility to this specific allegation". DET determined there was sufficient evidence to support a breach of discipline and the available evidence substantiated an allegation of reportable conduct. 1. Allegation 3 In late 1999, when BC was about 9 years old, the applicant had sexual intercourse with BC in the lounge room of his house. The evidence in support of the allegation were disclosures made by BC shortly after the JIRT interview concluded which led to BC being re-interviewed. The Applicant vehemently denied the allegation. DET determined that "taken in isolation there would be insufficient evidence to support a breach of discipline. However given the additional allegations of a similar nature, which span a period of several years and which are described by [BC] with consistency and in detail, there emerges a pattern of conduct which gives credibility to this specific allegation". DET determined there was sufficient evidence to support a breach of discipline and the available evidence substantiated an allegation of reportable conduct. 1. Allegation 4 In 2000, the applicant picked up BC after she had been to a dance rehearsal, drove her past her home to a park, pushed her against his car, tried to pull her pants down and touched her on the outside of her pants in the vicinity of her vagina. The evidence in support of the allegation were the disclosures BC made during the JIRT interview on 9 September 2004. BC also attended the site of the alleged assault with investigating officers and indicated where and how the applicant had parked his car and features in the area that had or had not changed since the alleged assault. The Applicant vehemently denied the allegation. DET determined that "taken in isolation there would be insufficient evidence to support a breach of discipline. However given the additional allegation of a similar nature (allegation 5), which occurred two years later and which are described by [BC] with consistency and in detail, there emerges a pattern of conduct which gives credibility to this specific allegation". DET determined there was sufficient evidence to support a breach of discipline and the available evidence substantiated an allegation of reportable conduct. 1. Allegation 5 In 2002, the applicant picked up BC in his car and took her to the same site as reported in allegation 4 above and, whilst inside the car, pulled her pants down and tried to lick her vagina. The evidence in support of the allegation was disclosures made by BC during the JIRT interview on 9 September 2004. BC also attended the site of the alleged assault with investigating officers and indicated where and how the applicant had parked his car and features in the area that had or had not changed since the alleged assault. The Applicant vehemently denied the allegation. DET determined that "taken in isolation there would be insufficient evidence to support a breach of discipline. However given the additional allegation of a similar nature (allegation 4), which occurred two years previously and which is described by [BC] with consistency and in detail, there emerges a pattern of conduct which gives credibility to this specific allegation". DET determined there was sufficient evidence to support a breach of discipline and the available evidence substantiated an allegation of reportable conduct. 1. Allegation 6 In 2002, at BC's home and whilst BC's mother was at work, the applicant lay on the bed next to BC, later tried to prevent her leaving the room and tried to touch her pubic area. The evidence in support of the allegation was disclosures made by BC during the JIRT interview on 9 September 2004. The Applicant vehemently denied the allegation. DET determined that "taken in isolation there would be insufficient evidence to support a breach of discipline. However given the additional allegations of a similar nature, which span a period of several years and which are described by [BC] with consistency and in detail, there emerges a pattern of conduct which gives credibility to this specific allegation". DET determined there was sufficient evidence to support a breach of discipline and the available evidence substantiated an allegation of reportable conduct. 1. Allegation 7 In March 2004, at the applicant's home, the applicant felt BC's breasts and put his arms up her legs. The evidence in support of the allegation was disclosures made by BC during the JIRT interview on 9 September 2004. During the course of the DET investigation BC provided further information as to what she was wearing on the day of the alleged assault. The Applicant vehemently denied the allegation. DET determined that "taken in isolation there would be insufficient evidence to support a breach of discipline. However given the additional allegations of a similar nature, which span a period of several years and which are described by [BC] with consistency and in detail, there emerges a pattern of conduct which gives credibility to this specific allegation". DET determined there was sufficient evidence to support a breach of discipline and the available evidence substantiated an allegation of reportable conduct. 1. Allegation 8 In late 2003, at BC's home, the applicant asked CD, BC's sister, if he could feel her breasts. The evidence in support of the allegation was disclosures made by CD during the JIRT interview on 9 September 2004. The Applicant vehemently denied the allegation. DET determined "this the allegation lacked support and specificity. It may, however, be indicative of a pattern of behaviour by the [applicant]. DET determined there was insufficient evidence to support a breach of discipline and the available evidence did not substantiate an allegation of reportable conduct. 1. Allegation 9 The applicant, whilst cleaning his car, kissed BC on the mouth in the front seat of his car. The evidence in support of the allegation was disclosures made by CD during the JIRT interview on 9 September 2004. BC did not mention the alleged conduct in her interview with JIRT on 9 September 2004. The Applicant vehemently denied the allegation. DET determined "this the allegation lacked support and specificity. It may, however, be indicative of a pattern of behaviour by the [applicant]". DET determined there was insufficient evidence to support a breach of discipline and the available evidence did not substantiate an allegation of reportable conduct. 1. Allegation 10 Whilst the applicant was at BC's home on 25 May 2004, the applicant said to BC's mother, "I could go down on this. This is very serious. If I go down you'll go down". The evidence in support of the allegation was a statement made by BC's mother to police. The Applicant denied the allegation and contended that this was something BC's mother had said to him. BC's mother gave evidence about the conversation in the AVO proceedings in 2005 and her evidence on this issue was determined by the Magistrate to be unreliable. DET determined there was insufficient evidence to support a breach of discipline and the available evidence did not substantiate an allegation of reportable conduct. 1. Allegation 11 On 13 June 2004, the applicant contacted the hospital where BC's mother worked as a nurse and lodged a vexatious complaint alleging BC's mother illegally supplied him with ten packets of the prescription drug Tramadol. The Applicant confirmed he contacted the hospital but said this was in relation to enquiring about his legal status in having stolen medication in his possession. He made a complaint to the police and sent the police the medication in his possession. BC's mother denied she had stolen the medication and alleged that the complaint was made to intimidate her following BC's complaints against the applicant. The hospital conducted its own investigation and found no missing quantities of drugs. DET determined there was insufficient evidence to support a breach of discipline and the available evidence did not substantiate an allegation of reportable conduct. 1. Allegation 12 In 2003, the applicant showed an inappropriate video to the students of his Year 8 Design & Technology class depicting topless female models. The evidence in support of the allegation was a statement made by BC to DET during its investigation. The Applicant admitted showing the video but denied that it was in appropriate in content. The video was a copy of a program shown on prime time ABC television and given to him by a female head of an all girls' school in Tasmania as a good resource for Year 8 girls. The applicant's response was accepted by the principal of his school and the matter was closed. DET determined there was insufficient evidence to support a breach of discipline and the available evidence did not substantiate an allegation of reportable conduct. Outcome of DET Findings 1. The DET findings resulted in the recommendation that formal disciplinary charges be brought against the applicant. A recommendation was also made that the matters be considered in any risk assessment if the applicant applied in the future for child related employment. 2. A medical assessment of the applicant determined that the applicant was unfit for duties as a classroom teacher and in all likelihood he would be permanently unfit for such duties. DET informed the applicant his medical retirement would proceed on the basis he agree in writing to the placement of his name on the list of people who are not to be employed by DET and that, if he sought re-employment with DET, then disciplinary action would take place in relation to the findings made about his conduct. 3. The applicant subsequently commenced Supreme Court proceedings against DET. The proceedings were settled on the basis of undisclosed terms; a notation that the applicant agreed to medically retire and DET paid the applicant's costs. 4. On 19 February 2007, the applicant's name was placed on DET's "Not to be Employed" list. NSW Ombudsman's findings 1. The Ombudsman of NSW in a letter to the respondent's office dated 31 October 2016 reported that it assessed the findings by the DET that some of the allegations against the applicant were sustained, as being "reasonable". Allegations by children other than BC and CD 1. The material before the Tribunal included reference to other allegations made by children or their parents with respect to the applicant: 1. an allegation by a six year old girl that the applicant had touched her "private parts" was investigated by the DET and determined to be false and not reportable; and 2. a 12 year old girl reported to her mother that the applicant looks down her top and the tops of other girls. The 12 year old girl declined to make a verbal or written statement. 1. The applicant denies the conduct referred to in these allegations. Applicant's evidence and submissions 1. The applicant's evidence to the Tribunal with respect to BC's allegation was consistent with his statements since the allegations were first made: he emphatically denies sexually abusing BC. He also denies any other allegation he touched or acted inappropriately towards CD or any other child. 2. The applicant stated that during the period between becoming aware of BC's allegations and informing the school principal, he had sought legal advice and advice from the union as he regarded the allegations to be vexatious. The applicant refuted under cross examination, any suggestion he delayed reporting BC's allegations to the school principal so he could apply pressure to BC's mother by contacting the hospital she worked for as a nurse and telling them she had unlawfully taken prescription drugs from the hospital. 3. The applicant acknowledged in cross examination that he wrote to BC's mother when he was informed he was going to be arrested in relation to BC's allegations. He acknowledged he had done so despite being told not to contact BC's mother. The applicant stated in the letter he would "use the enclosed evidence for my concern if I needed to". The letter included information and photographs relating to allegations that BC's mother and her son had filed insurance claims with respect to cars they had set on fire. The letter also included a photograph of a box of Tramadol with the name of the hospital that employed BC's mother on the label. The applicant refuted under cross examination that this correspondence constituted threatening BC's mother and said he just wanted her to know what his intention was in terms of his defence to the charges. 4. There were five references in relation to the applicant included in Exhibit R1. Three references were from individuals who knew the applicant in a personal capacity and attested to his good character. It is not evident on their face, that the referees knew of the circumstances relating to the refusal of the WWCC clearance. 5. Two references were from health professionals as follows: 1. A psychologist who had 24 consultations with the applicant from May 2013 to October 2014. The reference states there were: False accusations from another (student) which there were no proven evidence (sic). No factors that would prevent [the applicant] working with children or the community… There is no evidence, maladaptive patterns of behaviour that would prevent [the applicant] from working with children in the future. There was no clinical observations that indicated any risk to the community or children. [The applicant] was in treatment to successfully process and rebalance his life after detrimentally being forced to stop teaching. There was no clinical observations or demonstrated behaviour that would question his capacity to safely be able to work with children in the future. 1. A psychiatrist who provided a reference dated 3 February 2016 stating he had professional contact with the applicant since 2013. The reference states that: I have been reviewing this patient's coping abilities associated with TOTALLY false accusations that have been legally refuted and notation relevant to this has been CORRECTED. There are no behaviours that relate to concerns over working with children. The patient has been traumatised by being falsely accused but there is full capacity to work. … This man represents the relatively rare and known example of a person in a professional role being placed in a spotlight by an egregious action that related to greed from an individual hoping for financial reward leading to investigation with no substance. 1. The referees referred to above were not called by the applicant to give evidence and therefore were not cross examined. 2. The applicant told the Tribunal that he is "in a desperate state of depression" and the allegations by BC have "demolished" his family. The applicant stated that he wants a WWCC clearance so he can "clear" his name and that most jobs require a clearance. 3. The applicant submitted the respondent's decision to not grant him a WWCC clearance is erroneous because the evidence does not support a finding that the applicant poses a "real and appreciable risk to children". The submissions on behalf of the applicant may be summarised as follows: 1. the applicant denies all allegations he sexually abused BC or any other child; 2. the applicant has maintained his innocence in every forum and "consistently adopted the actions of an innocent man" including self- reporting the allegations to the school principal; 3. the applicant does not pose any risk to the community and is himself a "victim of the situation"; 4. no offence has been proven against the applicant as the criminal proceedings were "no billed"; 5. the matter has been fully contested in the AVO proceedings with evidence from relevant witnesses and the allegations were not accepted in those proceedings. As BC has not been called in the proceedings before the Tribunal then significant weight should be given to the decision in the AVO proceedings; 6. the charges against the applicant amounted to a malicious prosecution and this is supported by the applicant bringing and settling a malicious prosecution case against the police; 7. the decision by the respondent not to grant the applicant a WWCC clearance relied upon the DET report. The DET report was flawed as the applicant was not accorded natural justice by being given the opportunity to respond to the findings by DET; 8. the only credible complaint made against the applicant was by BC; the other complaints were not pursued including as part of the DET investigation; 9. the applicant has successfully brought workers compensation proceedings for the distress caused by the matter; and 10. "the applicant is otherwise a man of good character and has been unfairly treated by the system causing significant personal stresses and psychological injury. There has been indirect harm to his family. He has been financially unable to conduct his career as a teacher". Respondent's submissions 1. The respondent submits the evidence supports a finding the applicant poses a "real and appreciable risk" to children. The submissions on behalf of the respondent may be summarised as follows: 1. the applicable case law to apply to the facts is the decision in BKE v Office of Children's Guardian [2015] NSWSC 523; 2. the criminal charges against the applicant were "no billed" due to BC's reluctance to give evidence; 3. the Tribunal should place limited weight on the dismissal of the AVO proceedings in terms of its relevance given the proceedings were focussed on determining if there was a need for BC to be protected from the applicant in circumstances where they had not had contact for 12 months; the applicant was not cross-examined and the purpose of the proceedings was not to determine if the alleged abuse actually occurred; 4. the AVO proceedings may have been dismissed but the magistrate noted that BC was a "confident witness" and was consistent in her account of the allegations; 5. BC's allegations were corroborated by her friend, sister and mother as well as a counsellor at Kids Helpline; 6. the applicant was found to be a PCH by FACS and remains a PCH albeit with the rider that the criminal prosecution was "no billed" and the AVO application dismissed; 7. the applicant engaged in threatening behaviour towards BC's mother (by writing to her and contacting her employer) after the allegations were made; 8. limited weight can be given to the references from health professionals (referred to in paragraph 50 above) relied upon by the applicant because: 1. the authors do not include their CVs; 2. there is no evidence the authors had any material before them other than what he was told by the applicant; 3. the reports are formal risk assessments by an appropriately qualified specialist and there is there is no reference in the report to the assessment process or what risk was being assessed; and 1. there is no report as to the applicant's current mental health. Tribunal's findings of fact 1. Applying the propositions summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 (see paragraph 18 above), the Tribunal should first consider if positive findings about the allegations can be made on the balance of probabilities or if the Tribunal rejects the allegations as "groundless" (at [14]). 2. On the evidence before it, the Tribunal is not able to make a positive finding the conduct alleged by BC occurred. The Tribunal, however, is not satisfied it can reject the allegations made by BC as being "groundless" given the evidence DET made findings against the applicant with respect to seven of the twelve allegations; the NSW Ombudsman reviewed those findings and found them to be reasonable and the applicant is still listed as a PCH by FACS. 3. The Tribunal does not agree with the applicant's submissions that the "no billing" of the criminal prosecution and the dismissal of the AVO proceedings are determinative either on their own or together that the alleged conduct did not occur. The applicant's submission that "the DPP and the Court both found the allegations improbable" is not accurate. The criminal prosecution did not proceed because BC was reluctant to give evidence. The jurisdiction of the court with respect to the AVO proceedings was to decide whether to make a final AVO rather than determine if the offences occurred. 4. The Tribunal leaves the question "open" as to whether the alleged conduct occurred or not (see Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [17] per Harrison J). Matters to be considered by the Tribunal 1. The Tribunal determines an application under section 27 by considering all the evidence presented by the applicant and the respondent in light of the mandated considerations contained in section 30 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. 2. Section 30 provides: (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. 1. Section 30(1A) of the Act is not applicable as the applicant applied for a WWCC clearance before the commencement of that section on 2 November 2015. Application of section 30(1) factors to the evidence 1. The evidence is now considered under each of the subsection 30(1) factors. (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar 1. The Tribunal is satisfied that the matters that "triggered" the cancellation of the applicant's WWCC clearance (which include an allegation that the applicant had sexual intercourse with BC when she was about 9 years old) fall at the high end of seriousness for such matters. (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The alleged events occurred between 13 and 18 years ago. Other allegations made as to the conduct of the applicant since that time have not been substantiated. (c) the age of the person at the time the offences or matters occurred 1. The applicant was aged between 46 and 52 years old at the time of the alleged matters. (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim 1. BC was aged between 8 and 14 years old at the time of the alleged conduct. 2. The Tribunal is satisfied there was an imbalance of power in the relationship between the applicant and BC that made BC inherently vulnerable. BC was not only the daughter of a close family friend of the applicant and a friend of his daughter but also a student at the school where he taught. (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. There is a 37 years age difference between the victim and the applicant. (f) whether the person knew, or could reasonably have known, that the victim was a child 1. The applicant knew BC was a child given his involvement with her family and that she was a student at the school at which he taught. (g) the person's present age 1. The applicant is currently 64 years of age. (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The applicant's criminal record is from 1972 to 1976 and relates to driving offences, drug offences, giving a false name and address and use of unseemly words. It is of limited relevance to these proceedings. (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. It is difficult for the Tribunal to assess the likelihood of the applicant repeating the conduct that forms the basis of BC's allegations (and acknowledges that the applicant has consistently denied the conduct alleged by BC). The Tribunal did not have before it a formal risk assessment report by a suitably qualified health professional as to the risk, if any, the applicant may pose to children. The Tribunal accepts the submission by the respondent that limited weight can be put on the references referred to in paragraph 50 above given their authors were not called by the applicant and therefore were not available for cross examination. Furthermore, it is not evident from the references what information the health professionals had access to (other than the account provided by the applicant) in forming their assessment; the risk assessment tool (if any) being used or type of risk being assessed. 2. The Tribunal was satisfied that if the conduct alleged by BC (which the applicant denies) was repeated then the impact on a child would be highly detrimental. (j) any information given by the applicant in, or in relation to, the application 1. The applicant provided to the Tribunal a number of references attesting to his good character. It was not clear from these references if the referees were aware of the circumstances surrounding the respondent refusing the applicant a WWCC clearance. The Tribunal is therefore only able to place minimal weight on these references. (k) any other matters that the Children's Guardian considers necessary 1. The Children Guardian raised the matter referred to above in paragraph 44(2) above. Tribunal's consideration and determination 1. The primary issue for the Tribunal to determine is what the correct and preferable decision is having regard to the material before the Tribunal in relation to cancelling the applicant's WWCC clearance. The Tribunal has carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons. 2. It was evident to the Tribunal from the applicant's evidence and submissions that he feels "victimised" in relation to the allegations made by BC which he strenuously denies. The jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. The object of the Act is not to impose additional punishment on the applicant but to eliminate possible risks to the safety of children. 3. The Tribunal is required to determine whether the applicant poses a "risk" to the safety of children. The Tribunal has to determine if "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 (Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]). 4. As stated above, the Tribunal is not satisfied on the balance of probabilities the relevant conduct occurred. The Tribunal is also unable to conclude that the allegations are groundless and that the alleged conduct did not occur. As stated by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [16] where "a lingering doubt or suspicion remains" then this should count against the person in the applicant's position, though is not necessarily fatal to an application for a WWCC clearance. Furthermore, if the question of whether the relevant conduct occurred or not "is left 'open', the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute" (at [17]). 5. The Tribunal is also guided by the statement of Beech-Jones J in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33] that: "…in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of the risk has not been disproven." 1. If the applicant is granted a WWCC clearance then he may work with any child of any age in any circumstances without supervision. It is not open to the Tribunal to place conditions on the granting of a WWCC clearance (BJB v The Children's Guardian (No.2) [2014] NSWCATAD 164 at [36] to [45].) 2. The allegations made by BC against the applicant are extremely serious. If such conduct was to be repeated (noting that the applicant strenuously denies that it ever occurred with respect to BC) then the impact on a child would be highly detrimental. On all the evidence before it, the Tribunal is satisfied on the balance of probabilities that the applicant poses a real and appreciable risk to children that is greater than the risk any adult would pose given that: 1. serious allegations BC made against the applicant that he sexually abused her were substantiated in the DET report; 2. the relevant findings of the DET report were reviewed and found to be reasonable by the NSW Ombudsman; and 3. the applicant is listed as a PCH by FACS. 1. Furthermore, there was no evidence before the Tribunal, such as a formal risk assessment by a suitably qualified health professional, that disproves the existence of the risk the applicant poses that is raised by the factual matters in paragraph 82 above. 2. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30(1) of the Act, the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a WWCC clearance. Orders 1. The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 20 December 2016 to cancel the applicant's Working with Children Check clearance is affirmed. ********** ​ 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: 29 November 2017