Bond v. Department of Education of New South Wales [2010] NSWIRComm 1006

Industrial Relations Commission (NSW)|2010-05-28

CITATION: Bond v. Department of Education of New South Wales [2010] NSWIRComm 1006

APPLICANT Judith Bond PARTIES: RESPONDENT Department of Education of New South Wales

CATCHWORDS: termination of employment - teaching service - casual teacher - claim of unfair dismissal - protection of children - allegations of serious offences with a family member - onus of proof - reportable conduct - placement on the list proscribing employment as a teacher or any child related employment - application for reinstatement made - application dismissed

Child Protection (Offenders Registration) Act 1998 Commission for Children and Young People Act 1998 LEGISLATION CITED: Industrial Relations Act 1996 Ombudsman Act 1974 Teaching Services Act 1980

Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Bond v. Director-General of Education and Training [2008] NSWIRComm 1131 Briginshaw v. Briginshaw (1938) 60 CLR 336 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 Cassis v. New South Wales Department of Education and Training [2006] NSWIRComm 164 Director-General of Education and Training v. Bond [2009] NSWIRComm 40 Forbes v. Boston (1999) 91 IR 385 Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 27 Killington v. News Limited (1993) 51 IR 307 CASES CITED: L v. Commissioner for Children and Young People [2008] NSWIRComm 195 M v. M (1988) 63 ALJR 108 Markowski v. Catalina Country Club - unreported New South Wales Department of Education and Training v. Cassis [2007] NSWIRComm 158 R v. Donovan (1934) 2 KB 498 R v. Starr (1969) QWN 23 R v. Whitehead (1929) 1 KB 99 Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 Shop, Distributive and Allied Employees Association v. Librus Pty Limited (2001) 103 IR 390 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454

HEARING DATES: 11/02/2010, 12/02/2010, 18/02/2010, 24/02/2010, 09/04/2010

APPLICANT Paul Moorhouse LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Judith Bond and the Department of Education and Training of New South Wales

Application under S.84 of the Industrial Relations Act, 1996

1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act Mrs Judith Bond has lodged an application concerning the (ostensible) termination of her services as a casual primary school teacher in the light of certain allegations concerning her sexual misconduct made by one of her sons, Andrew - allegations which she denies. Mrs Bond had been married for 35 years when in 2003 her husband divorced her. She has four children - three sons (Jeffrey, Andrew and Peter) and a daughter (Joanne). She began teaching in 1966 and has taught both on a full-time basis and casually in New South Wales, Victoria and South Australia. She is a member of the Church of Christ. Her former husband is a pastor in the church.

2 Currently Mrs Bond had been placed on the list - "Not to Be Employed" [NTBE] - proscribing her continued employment as a teacher. The Department of Education and Training regarded the allegations as "reportable conduct" under S.33 of the 1998 Commission for Children and Young People Act and it therefore was under an obligation by virtue of S.39(1) of the CCYP Act to notify the Commission for Children and Young People, ie the allegations against Mrs Bond were "reportable conduct" as Category 1. I will deal with that issue later in this decision. 3 S.5A of the 1980 Teaching Service Act provides:

"(1) The protection of children is to be the paramount consideration:

(a) in taking any action with respect to an officer or temporary employee under this Act, and

(b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action.

(2) This section has effect despite anything in the Industrial Relations Act, 1996 or any other Act or law." But S.44(2) of the CCYP Act provides: "....Nothing in this Part affects any statutory right that an employee may have in relation to employment or termination of employment. However, any court or tribunal exercising jurisdiction with respect to any such right must have regard to the results of any employment screening carried out under this Part in connection with the employment concerned and the welfare of children as the paramount consideration in that employment screening." 4 Those provisions were considered by Grayson DP in his unreported decision of Friday, 19 May, 2006 in Cassis v. New South Wales Department of Education and Training [Matter No.IRC 4385 of 2005] and by the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Harrison DP) in its unreported decision of Tuesday, 11 September, 2007 in New South Wales Department of Education and Training v. Cassis [Matter No.IRC 2410 of 2006] which determined the appeal against the decision of Grayson DP. The Full Bench referred (at p.8) to views expressed at first instance, viz: "....(Counsel for the applicant employee) submitted...that in any event the effect of S.44 of the CCYP Act does not mean that it automatically overrides the principles the Commission would otherwise apply or other matters of fairness. It is the welfare of children and not the employment screening which is the paramount consideration. The Commission would have regard to the results of the employment screening without the necessity of displacing other considerations that would ordinarily apply. I think, on balance, that must be the correct approach and I say that without in any way diminishing the paramountcy to be given to the welfare of children.

It seems to me that if the Parliament had intended the results of employment screening to apply to the exclusion of other considerations, it would have expressly said so and, in the absence of express provision in that regard, the child protection legislation to which I have been taken should not be read to mean that the jurisprudence of the Commission is effectively displaced..." And the Full Bench itself concluded (at pp.39 and 40): "....There can be no doubt that the welfare (and protection) of children is the paramount consideration in proceedings such as the present. This must be determined objectively with the assistance of the employment screening result. It is also necessary to take all other factors into account. The evidence...in respect to the Department's policy is that the Department will exclude any person that has any type of question as to their suitability. The potential for grave injustice is created by abandoning the requirement for reasonable doubt. S.44 of the Commission of Children Act does not go that far nor does the recently enacted S.5A of the Teaching Service Act..."

These appear to be fundamental issues in the current proceedings and I will return to them later in this decision. 5 At the time that Mrs Bond was placed on the NTBE list and effectively ceased working in the public school system, she had worked for the Department only on a fairly limited and casual basis. During the five months of 2007 before she was placed on the NTBE list she worked for only a total of 9 days and 5½ hours for the Department. For the period from 2001 to 2006 she worked an average of approximately 22 days annually. In 2001 she did not work for the Department at all. She appears to have worked greater amounts of time in the private education system but has nevertheless chosen to make the Department the respondent for her Part 6 application.

6 Mrs Bond's Part 6 application was allocated to McKenna C who set it down for conciliation in conferences on Thursday, 10 July, 2008 and Monday, 21 July, 2008. Conciliation failed to settle the matter and it was set down for arbitration on threshold issues. Essentially, there were two threshold issues argued by the Department at that time, viz:

(i) On Monday, 4 June, 2007 Mrs Bond was informed by the Department that she had been placed temporarily on the NTBE list and her placement on the NTBE list was confirmed on Wednesday, 12 December, 2007. She had been classified as Category 1 by the CCYP but the Department argued that Mrs Bond had not actually been dismissed to give rise to a claim under Part 6.

(ii) alternatively, if it was determined that Mrs Bond had, in fact, been dismissed when she was placed permanently on the NTBE list on Wednesday, 12 December, 2007, she had lodged her Part 6 application on Tuesday, 1 July, 2008, substantially outside the 21 day time limit for the lodgement of Part 6 applications prescribed by S.85(1).

7 Mrs Bond requested an adjournment of the proceedings which was granted and the hearing on those threshold issues was set down instead on Monday, 24 November, 2008 before McKenna C. It was re-allocated to me for the hearing on that day due to the unexpected absence of McKenna C at that time but it did not proceed before me. Counsel briefed at that time to represent Mrs Bond in the proceedings, announced that he and the solicitor representing her had now ceased to act for her and he tendered a notice to that effect in the proceedings. I gave counsel permission to withdraw from the proceedings and they did so.

8 Mrs Bond indicated that she was seeking other legal representation but she had not obtained that assistance to date. She also indicated that she was prepared to proceed to a hearing on the threshold issues in dispute but I expressed some reservations to her that the threshold issues be determine without her benefiting from legal representation since the outcome of the proceedings so vitally affected her entitlements under Part 6. With the consent of counsel for the Department at that time, I adjourned the proceedings until Thursday, 4 December, 2008. Counsel for the Department indicated that, in view of the history of this matter, he was not prepared to accept any further adjournments.

9 When the matter resumed before me on Thursday, 4 December, 2008 Mrs Bond was still not legally represented. Nevertheless, I was not prepared to delay the matter further and proceeded into hearing on the threshold issues. I handed down my preliminary decision on those threshold issues on Thursday, 18 December, 2008, exercising my discretion to permit Mrs Bond's Part 6 application to go forward to hearing. 10 On the question of whether or not Mrs Bond's placement on the NTBE list and her classification as Category 1 constituted her dismissal, I had this to say (at pp.8 and 9):

"...(Counsel for the Department) has primarily argued that, in fact, Mrs Bond's Part 6 application is beyond jurisdiction. He asserts, whilst she has been placed on the NTBE list and has been classified as Category 1 by the CCYP, she has not actually been dismissed. However, the fact remains that whilst she remains on the NTBE list and is classed as Category 1, she will not be engaged as a casual teacher by the Department and she has not been since Monday, 4 June, 2007 when she was informed that she was to be placed on the NTBE list pending further investigation of the allegations against her. (Counsel) conceded that it was open to argue that Mrs Bond had been constructively dismissed but it seems to me that the actions of the Department were tantamount to a dismissal of Mrs Bond effective from Wednesday, 12 December, 2007 when her permanent placement on the NTBE list was confirmed to her..."

11 On the question of her delay in lodging her Part 6 application, I commented (at pp.10 and 11):

"...In my opinion, the balance of convenience favours Mrs Bond in this case and I consider I should permit her Part 6 application to go forward to hearing. She will certainly be prejudiced if her Part 6 application was aborted without her being given the opportunity available to her by virtue of Part 6 to defend herself from the serious allegations made against her, which have deprived her of work which she has performed for 42 years. By comparison, the inconvenience to the Department would be minimal, in my opinion.

I do not believe that there can be any doubts of Mrs Bond's determination to press for her reinstatement as a teacher. Almost from the outset, the Department was on notice that Mrs Bond was actively pursuing a claim for her reinstatement, albeit her actions in that respect were ultimately unsuccessful. For instance, as far back as her letter...on 18 July, 2007 seeking the 'fast tracking' of the investigation of the allegations against her, Mrs Bond had indicated she needed '...day to day teaching for day to day living expenses...'. And in the letter of Tuesday, 28 August, 2007...Mrs Bond's solicitor referred to Mrs Bond's wish to '...be able to return to classroom teaching...'."

"...What does still concern me is the practical outcome of any decision to preserve Mrs Bond's rights under Part 6, bearing in mind the lengthy history of this matter... I do accept that the allegations against Mrs Bond have already been the subject of apparently very detailed investigation within the Department and by an external, independent body. It may therefore be the case that Mrs Bond's Part 6 application does no more than rake over dead coals. That would not be in her interests any more than it would be in the interests of the Department..."

12 I set the matter down for further mention and programming on Friday, 6 February, 2009 and made directions for the filing and serving of any evidentiary material. However, the Department lodged an appeal against my preliminary decision. For that reason, it was not prudent to set the matter down for arbitration before me pending the outcome of the appeal. I adjourned the proceedings until Friday, 24 April, 2009. The Full Bench of the Commission (Kavanagh and Staff JJ and Bishop C) dismissed the appeal against my preliminary decision on Thursday, 26 March, 2009.

13 On Friday, 24 April, 2009 Mrs Bond's solicitor indicated that Ms Bond was content to rely on the material already filed in the proceedings and the representative of the Department sought and was granted until Friday, 15 May, 2009 for it to file and serve its evidentiary material in response with further evidentiary material from Ms Bond to be provided by Wednesday, 17 June, 2009. The matter was to reconvene before me on Wednesday, 17 June, 2009 for further programming.

14 On Tuesday, 16 June, 2009 the solicitor representing Mrs Bond wrote to inform me that:

"....our client has been overseas in a mission to serve at a children's home since Tuesday, 9 June, 2009 and is returning on Tuesday, 23 June, 2009. We are instructed that the trip had been planned many months in advance. However, our client had neglected to mention the proposed trip to us when the matter was before the Commission on Friday, 24 April, 2009..."

Mrs Bond's solicitor sought an extension of time. I granted an extension of time on the understanding that any further material provided in support of Mrs Bond would be provided by Tuesday, 7 July, 2009. On that basis, I set the matter down for hearing on Wednesday, 11 November, 2009, Thursday, 12 November, 2009 and Friday, 13 November, 2009.

15 However, the additional material was not lodged on behalf of Mrs Bond until Monday, 9 November, 2009, raising in issue certain new matters and clearly giving the Department insufficient time to investigate them prior to the hearing. Consequently, Ms Brus, now representing the Department in the hearing, sought and was granted an adjournment of the hearing. Whilst I am concerned at the excessive delays in progressing Mrs Bond's Part 6 application, in the circumstances, I believe that in fairness to the Department, I had no choice other than to vacate the dates set down for the hearing and set new hearing dates - Wednesday, 17 February, 2010, Thursday, 18 February, 2010, Wednesday, 24 February, 2010, Thursday, 25 February, 2010 and Friday, 9 April, 2010. Mr Moorhouse, now representing Mrs Bond, did not oppose that course of action.

16 In the hearing Mr Moorhouse submitted that there was insufficient evidence to support the decision to place Mrs Bond on the NTBE list or refer the matter to the CCYP. He asserted that Mrs Bond presented no risk to the safety of children in care and argued in written submissions that in the light of the decision in New South Wales Department of Education and Training v. Cassis it was an error to conclude that allegations of sexual misconduct by a teacher themselves, even if substantiated, were sufficient to establish a risk to the protection of children. As Mr Moorhouse indicated in his submissions (and Ms Brus agreed), since Mrs Bond had denied the allegations, the onus of proving them rested with the Department according to the civil standard of proof - the balance of probabilities [Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362]. Ms Brus has argued that there were no grounds for the reinstatement of Mrs Bond in employment and, in fact, argued in the first instance that there were certain jurisdictional barriers to any claim by Mrs Bond under Part 6 in the light of the nature of her casual employment with the Department. Annexed to this decision is a list of the witnesses called to give evidence in the hearing by either Mr Moorhouse or Ms Brus.

17 Much of the background information for this Part 6 application has already been outlined in my preliminary decision of Thursday, 18 December, 2008 but for convenience I set it out again in this decision in more detail. On Monday, 4 June, 2007 Mrs Bond had been informed by the Department that certain serious allegations concerning her sexual misconduct had been made by her son, Andrew, and they were being investigated. Those allegations were set out in the Department's letter, viz:

that when Andrew was between the ages of approximately 12 years and 19 years and living at their family residence, she would frequently enter his darkened bedroom in the evening to kiss him goodnight on the face, specifically the ears, them moving to "full kissing" on his mouth and placing her hands on his groin area and rubbing his penis;

that she permitted Andrew to rub/fondle her breasts and failed to act to prevent the continuation and/or reoccurrence of that conduct and therefore encouraged it;

that in her residence she would hug Andrew up to the time when he attained approximately 22 years of age, maintaining that hug and developing it into a moving/ rubbing/gyrating motion with her body, failing to act to prevent the continuation and/or reoccurrence of that conduct and therefore encouraging it; and

on one occasion when Andrew was 22 years of age and was visiting her residence, she greeted him with a hug and a kiss and proceeded to perform oral sex on him. Subsequent internal investigations have resulted in the deletion of the allegation that she allowed her son Andrew to rub or fondle her breasts. The Department believed that the other allegations were sustained. 18 Mrs Bond was placed temporarily on the NTBE list at that time and consequently she was not to be employed as a teacher pending the outcome of investigations. The letter she received at that time was in the following terms:

"....I am writing to advise you that the allegations about your conduct are being investigated by Employee Performance and Conduct [EPAC]... You do not have to make any comment about this matter at this time. However, this is an opportunity to respond to the allegations if you wish to do so... In the circumstances, I have temporarily withdrawn approval for you to be employed as a casual teacher in Departmental schools... Any information which you provide will be taken into account in deciding whether or not further action is required, and may be used if disciplinary action is taken against you..."

19 Mrs Bond responded in a letter dated Wednesday, 13 June, 2007, highlighting her lengthy period of satisfactory employment as a teacher and asserting that she was guilty of no wrongdoing. She indicated that the "...content of the letter was no shock..." to her as she had already met with two church pastors - Mr Timothy McMenamin and Mr Peter Jones - in counselling and with her son Andrew. She typed out the letter, making allegations of her own against Andrew:

"....As a young teenager experiencing normal adolescence with hormones firing, it shocked me to have Andrew accuse me of initiating sexual acts. I set boundaries in the physical sense very clear as our children were growing.

Once Andrew sat next to me in the family room. He took my hand and put it on his leg, moved my hand to his groin then to his penis. The second time, I knew it was wrong. It is against my behaviour and values, so I reinforced a very clear: 'No Andrew. No more.' I made sure that it did not happen again.

At bed time, as a mother, I would give our children a goodnight hug. For a time, Andrew would pull me close in an embrace. I didn't feel comfortable with this. I knew that it was inappropriate, more than just a cuddle. I would say: 'No Andrew, I've said goodnight.' Andrew was giving wrong affection and I would leave the room immediately.

I have only ever allowed my husband to touch my breasts. They are 'sacred' to me. I have not encouraged or allowed anyone else to play with my body. When Andrew visited our home as a married man and tried to expose himself, I firmly said to Andrew: 'No Andrew. Don't! Go home to your wife.' No, I did not proceed to perform oral sex with Andrew. I gave a very firm 'no' to Andrew. Again, I set and made very clear boundaries.

My clean record of forty years of school teaching still stands because my behaviour, actions and morals have been right with students. My driving record of forty years still stands clean with no police record because my driving has been right. Before God and man, I have a clear conscience..."

And in handwriting at the foot of the letter she stated:

"...I feel that I am being convicted when I am innocent of something that I haven't done..."

20 In a further letter dated Wednesday, 18 July, 2007 Mrs Bond asked that the investigations be "...fast tracked as a matter of priority...", stating further that she needed "...day to day teaching for day to day living expenses...". She wrote what she described as relevant information regarding her son, viz:

"....Andrew, when younger, was very friendly with young ladies. I, being his mum have been aware of his 'roaming' eyes. Especially since being married, Andrew has been very lustful. I am now finding out that Andrew has had to repent to many women. In my reading and research findings, I quote: 'Because a person who has been caught up in sexual sin has wounded his soul, usually his perceptions are inaccurate and clouded by his own sin.'

Andrew's allegations are attacks on me. My own clean, clear teaching record of 42 years in South Australia, Victoria and New South Wales still stands to show my high morals and ethics and standards..."

21 In a subsequent letter dated Tuesday, 28 August, 2007 to EPAC, Mrs Bond's solicitor at that time clarified "certain ambiguities" in Mrs Bond's earlier correspondence and outlined her position, viz:

she agreed that she would kiss her son when he was in the bedroom of the family residence but she denies that she would kiss him anywhere but on the face and that she engaged in "full kissing" on his mouth;

she denies any of the conduct otherwise alleged occurred in the bedroom when the son was aged between 12 years and 19 years;

she agreed that she did hug her son and that on one or two occasions the son exhibited an "...inappropriate degree of affection..." which she concedes, with the benefit of hindsight, may have possibly led to the son engaging in the conduct described: she denies encouraging such conduct by the son;

she concedes that on Wednesday, 13 June, 2007, when the son had been married and was aged about 22 years, he attended her home, exposed his genitals and asked her: "Mum, play with me": she told him to go home to his wife; and

she also agreed that there was an occasion when she and the son were watching television and she placed her hand on his leg in a comforting manner and he moved her hand firstly to his side and then to his penis: it was the second movement to his penis that she was referring to in her letter of Wednesday, 13 June, 2007.

"....our client is hurt and offended that these allegations have been made at this stage. We further note that, although certain allegations relate to a period when her son was a child, the most recent incident occurred when he was an adult and that on our understanding there has been no previous complaint or mention of it to any person prior to recent times. On our submission, this must give rise to some significant question as to the credibility of our client's son in this regard.

We are further advised that it is our understanding, particularly in the light of the guidelines to '...responding to allegations against the employees in the area of child protection...' that, since (one allegation) related to an adult person who is not a school student, it (is) not one that should be dealt with in these procedures in any case.

Our client wishes to ensure this matter is resolved as soon as possible as she wishes to have her name and character cleared and be able to return to classroom teaching..."

22 The subsequent investigation was conducted by Mr Steven White, an investigator for the EPAC who was called as a witness in this hearing by Ms Brus. Mr White's conclusion was that all of the allegations against Mrs Bond had been sustained, except the allegation that she allowed her son Andrew to rub and fondle her breasts. On Friday, 21 September, 2007 her solicitor was informed that consideration was being given to the permanent withdrawal of her teaching approval and her permanent retention on the NTBE list.

23 In the letter Mrs Bond was invited to respond with written submissions concerning the matter within fourteen days. Mrs Bond's solicitor wrote a letter on Wednesday, 3 October, 2007 requesting an extension of time for those submissions and the Department agreed to that request. Ultimately, the response from Mrs Bond's solicitor in a letter dated Monday, 15 October, 2007 was to deny the relevance of some of the allegations as far as Mrs Bond's employment as a teacher was concerned and to challenge other allegations made against her.

24 On Monday, 12 November, 2007 the Department wrote to Mrs Bond and forwarded that letter to her solicitor at that time. That letter indicated that:

"....I have reviewed all the information available, including your responses and the responses made on your behalf by your legal representatives and have determined that your name be placed on the list of people who are not to be employed in any capacity in New South Wales Department of Education and Training, including schools and TAFE institutes, without reference to the Director of Staffing Services... In accordance with the Ombudsman Act, 1974, all relevant documentation is to be forwarded to the New South Wales Ombudsman's Child Protection Team. An officer of that office will assess whether the matter was properly investigated and appropriate action taken.

Having completed these employment proceedings, I am required to consider whether the allegations amount to reportable conduct... This being the case, in line with employer's responsibilities as required by legislation, your name has been referred to the Commission for Children and Young People [CCYP] as a Category 1 report..."

As I outline in more detail later in this decision, in the light of the conclusions it has reached concerning the allegations, the Department was under a clear obligation flowing from S.39(1) of the CCYP Act to notify the CCYP of the allegations against Mrs Bond.

25 On Tuesday, 13 November, 2008 Mrs Bond was informed by her solicitor of the contents of the Department's letter of Monday, 12 November, 2008. She claimed some confusion as to her status, ie whether she had been dismissed or not, and she wrote to the Department on Thursday, 22 November, 2007, viz:

"...I request that you re-enlist my name for employment in the New South Department of Education. I am seeking a review of the investigation... I have worked in the Education Department in New South Wales, South Australia and Victoria, on and off, for forty two years and I have never had any misconduct nor any report against me. I have maintained and met professional standards in my teaching profession. I have not caused physical harm to any student or my son. When working with children, I am very conscious and aware to protect children..."

Mrs Bond's request for a further review of the matter was subsequently rejected by the Department. She received advise that she could make an application for access to her file and she did so on Thursday, 23 November, 2007. She was also made aware that she could approach the Ombudsman or take action before the Administrative Decisions Tribunal [ADT]. She has not to date done so.

26 On Wednesday, 12 December, 2007 Mrs Bond was informed that her approval to teach had been withdrawn and her name was to be retained permanently on the NTBE list. Subsequently, the Department agreed for an independent review into Mrs Bond's employment status and confirmed that to the solicitor then representing Mrs Bond in a letter dated Tuesday, 4 March, 2008. On Tuesday, 1 April, 2008 Mrs Bond was informed that her appeal to that independent body was unsuccessful and that no further consideration would be given to any further requests for a review of her employment status.

27 Mr White, acting on information he received concerning Andrew's allegations against his mother, commenced his investigation of those allegations in the middle of 2007. On Thursday, 3 May, 2007 Mr White and, since Mrs Bond also had taught for Catholic education, an investigator from the Child Protection Team of the Catholic Education Office, interviewed Andrew. Other interviews followed, including an interview with Mrs Bond's other son, Peter. On Monday, 4 June, 2007 Mr White contacted Mrs Bond and informed her of the serious allegations made against her, subsequently interviewing her on Wednesday, 6 June, 2007. 28 Ultimately, on Wednesday, 12 September, 2007 Mr White produced his investigation report which concluded as follows: "....Judith Bond has denied all of the allegations. However, her responses are problematic in that not only has she failed to adequately address the allegations but further her responses could imply that some of the conduct alleged may have, in fact, occurred. There is corroborative evidence...that Mrs Bond did make partial admissions... On any reasonable assessment these admissions by Mrs Bond would suggest that her reaction as a parent at the time of the allegations was inadequate. Society would expect that as a parent it was a responsibility of Mrs Bond to consider the welfare needs of her child and seek appropriate and expert intervention.

In this matter when all the evidence, including Mrs Bond's responses and submissions are considered, it is suggested that it is reasonable for the Director, EPAC to assess that Mrs Bond has not been able to satisfy the standards established by her employer in the interests of protecting students... It is suggested that if Mrs Bond were a permanent teacher consideration may have been given to this matter proceeding to disciplinary action in accordance with the Teaching Service Act, 1980. Noting Mrs Bond's casual status has been temporarily revoked, it would seem appropriate to maintain the withdrawal of her status.

The nature of the allegations and the evidence to support those allegations is such that it is suggested it is not appropriate to engage Mrs Bond to teach on a casual basis in schools, or otherwise be employed or engaged. It may be further considered that Mrs Bond's name be placed on the list of people not to be employed or engaged in any capacity in any New South Wales government school or Technical and Further Education institute, without reference to the Director of Staffing Services.

It is further recommended that a report to the CCYP is warranted in regard to this matter and that Mrs Bond's name be sent to the CCYP as a Category 1..."

That recommendation was ultimately accepted and adopted by the Department. Mr Moorhouse commented in his submissions that the actual decision to place Mrs Bond on the NTBE list was not Mr White's and the decision-maker was not called by Mr Brus as a witness in the hearing. But clearly Mr White's investigation was the basis of what action the Department ultimately took with respect to Mrs Bond. The fact that the actual decision-maker was not a witness in this hearing is of little consequence to me. 29 Mr Moorhouse has argued that there were procedural flaws in the investigation carried out by Mr White both as to the method he adopted and the logic of his conclusion. The failure of an employer to comply with its established procedure, to not apply that procedure properly or to not give a dismissed employee sufficient opportunity to answer allegations made against her when it dismisses her may point to an unfairness which, in the absence of compelling excuse, may justify reinstatement or other remedy under Part 6 [Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 at p.468, Forbes v. Boston (1999) NSWSC 1217, Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 at p.389 and Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 27 at p.118]. In my opinion, Mr White's investigation was not flawed, however. It was very comprehensive. Mrs Bond was given an opportunity to respond to the allegations and did so on several occasions both with legal representation and on her own. I see no procedural problems with Mr White's investigation. Nevertheless, my responsibility in this hearing is to form my own independent view of the evidence.

30 Mr Moorhouse has sought orders which he submits are consistent with orders already made in similar proceedings in the Commission. He has sought Mrs Bond's reinstatement to her former position of casual teacher with the Department and for that purpose to restore her approval to be employed as a casual teacher and remove her name from the NTBE list, preserving her continuity in employment from the ostensible termination of her employment and paying her an amount representing her lost wages during that time. In the alternative, he has sought the maximum amount of compensation available under S.89(5). That alternative submission can hardly be attractive to Mrs Bond since, as a casual teacher, she worked so little with the Department over the relevant period of six months prior to her ostensible dismissal, that it would provide very little real benefit to her and Mr Moorhouse acknowledged that position in his submissions.

31 The casual nature of Mrs Bond's employment with the Department was, in fact, raised squarely by Ms Brus as an issue going to jurisdiction. Mr Christopher Miles, a solicitor in the Department's employ who was called to give evidence by Ms Brus confirmed the very limited employment which Mrs Bond had with the Department - as distinct from her employment as a teacher in private schools. As I indicated earlier in this decision, during the five months of 2007 before she was placed on the NTBE list, she worked only a total of 9 days and 5½ hours with the Department. 32 S.83(2) and Reg.6 does exclude certain types of casual employment from Part 6. Reg. 6, among other things, excludes:

"…employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer…"

In Shop, Distributive and Allied Employees Association v. Librus Pty Limited (2001) 103 IR 390 the Full Bench of the Commission (Walton J - Vice President, Hungerford J, Patterson C) rejected the view that a casual employee with less than six months of employment would automatically be excluded from making an application under Part 6 by the operation of Reg.6. However, that appears to be the only clue as to what is meant by a "short period" in Reg.6 which remains essentially undefined.

33 Nevertheless, a casual employee may still have something in the nature of an ongoing relationship with a former employer to constitute a "dismissal" for the purposes of Part 6 when the employer unilaterally brings that contract of employment to an end [Killington v. News Limited (1993) 51 IR 307 at p.316]. Mrs Bond may not have been given much casual work from the Department but I still regard her as a long term casual employee with it, with a reasonable expectation of continuing employment. I do not believe that she would be excluded from jurisdiction under Part 6. 34 In Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 the Full Bench of the Commission (Bauer and Hungerford JJ and Murphy CC) gave as an illustration (at p.399) the following circumstances in which a casual employee may be "dismissed" and, as such, fall within jurisdiction under Part 6:

"…In principle, and using the technical terminology of contract, an enforceable contract may readily be drawn, namely - in consideration of a payment by X to Y, in accordance with the relevant award or enterprise agreement for work actually performed, X agrees to employ Y as a casual employee on work as mutually agreed as and when it arises from time-to-time pursuant to a weekly roster published by X at least seven days in advance of such work and Y agrees to make himself available to perform such work subject to the release of Y allowed by X for illness, holidays and other reasonable cause. Such a contract, in our opinion, would represent an appropriate common law contract of employment to give effect to an on-going or continuing enforceable contract of casual employment. It would not conflict with nor be contrary to the award there. We think that, if the employer to such a contract, X, declined during the course of its operations to offer further work to the employee, Y, then there would be a dismissal from employment of Y in the relevant sense within the meaning of Part 8…" 35 Nevertheless, what type of casual employment would Mrs Bond actually be reinstated to? The casual nature of Mrs Bond's employment, with the Department to call her in for teaching, or not call her in, at its discretion apparently, may provide her with no real benefit from her reinstatement, in my opinion. As I indicated in my unreported decision of Thursday, 30 March, 2000 in Markowski v. Catalina Country Club [Matter No. IRC 1810 of 1999 at p.15], viz:

"…There can be no guarantee of permanent employment or a consistent number of hours each week for a casual employee... Ryde-Eastwood Leagues Club v. Taylor is concerned with the severing of the contract of employment in a practical sense - the actual removal of a casual employee from an established casual roster even though that had never been spelt out in clear terms… It is the availability of the work which sets the pace in that respect and not the applicant's requests. Put simply, the club is not obliged to give her work if none is available…" Reportable Conduct

36 Pursuant to S.33 of the CCYP Act, the definition of "reportable conduct" includes:

"....any sexual offence, or sexual misconduct, committed against, with or in the presence of a child..."

"It is the duty of an employer to notify the (CCYP) of the name and other identifying particulars of any employee against whom relevant employment proceedings have been completed by the employer, other than proceedings:

(a) in which a finding is made that the alleged reportable conduct or the alleged commission of an act of violence, did not occur, or

(b) in which a finding is made that the allegation in respect of which the proceedings were brought were vexatious or misconceived."

"For the purpose of this Part, relevant employment proceedings are taken to have been completed when a finding has been made by the employer as to whether the alleged reportable conduct or the alleged commission of an act of violence, occurred or may have occurred, and a decision has been made by the employer as to what action (if any) is to be taken against the employee in respect of the finding."

Clearly, the obligation of the Department under S.39(1) follows from a finding by it that a certain offence/offences actually occurred (or may have occurred): it does not require the testing and confirmation of that finding in any subsequent litigation. As I see the position, it is not the same type of issue raised in the decision of Grayson DP in Cassis v. New South Wales Department of Education and Training or the appeal decision by the Full Bench in New South Wales Department of Education and Training v. Cassis , which do not touch on the obligations in S.39(1) at all but centres principally on S.44 and its relationship with S.5A of the Teaching Service Act.

38 The effect is that Mrs Bond's placement as a Category 1 employee as a result of the Department's report to the CCYP places her in a position that she may not be engaged in any employment involving children. She has not been charged with any criminal offence (eg incest). And that appears unlikely now since the police, whilst having been informed of the allegations, have apparently expressed no interest in them. But, I emphasise that such offences are not diminished by consent of the other party, particularly if that other party is a child. If particular acts are unlawful, in the sense of being by themselves criminal, it is plain that they cannot be rendered lawful because the person to whom they were done consents to them [R v. Donovan (1934) 2 KB 498 and R v. Starr (1969) QWN 23]. And as the matter currently stands, with her status as Category 1, reinstatement of Mrs Bond as a school teacher would not appear to me to be possible.

39 Nevertheless, S.43A of the CCYP Act provides: "(1) An employer may amend or withdraw a notification to the Commission under Ss.39 or 40 if the employer determines that the notification was incorrect or wrongly made.

(2) An amendment or withdrawal of a notification is to be made in the form directed by the Commission."

And Mr Moorhouse submitted that it was open to the Department to act under S.43A and withdraw the notification it made to the CCYP with respect to Mrs Bond. Ms Brus is not able to inform me of any instance where the Department has withdrawn or amended a notification to the CCYP under S.43A and she does not believe that has occurred. She suggested that it may still be open to Mrs Bond to make an application of that nature to the CCYP but it is less clear that she actually has that right. 40 By comparison, under the provisions of the 1998 Child Protection (Offenders Registration) Act persons actually found guilty of committing certain serious sex offences are required to register as a sex offender and pursuant to S.33C of the CCYP Act may not apply for, attempt to obtain, undertake or remain in child related employment. But S.33I(1) of the CCYP Act provides: "On the application of a prohibited person, a relevant tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence."

The Commission is by virtue of S.33I(2) a relevant tribunal in that context. One such application made to the Commission to which Mr Moorhouse referred in his submissions was the unreported decision of Haylen J of Friday, 17 October, 2008 in L v. Commissioner for Children and Young People [Matter No.IRC 1166 of 2008]. But otherwise, as I see the position, the Commission has no effective jurisdiction with respect to a finding by the CCYP that places any person on Category 1.

41 The question arises, therefore, as to the efficacy of these Part 6 proceedings to provide Mrs Bond with the remedy she is primarily seeking, ie her reinstatement in employment as a teacher. Whether or not Mrs Bond actually has a remedy in the ADT, as she was apparently told, remains unclear to me. But she has chosen not to explore that course, in any case. As I indicated earlier in this decision, Mr Moorhouse has submitted that I may give an order to remove Mrs Bond from the NTBE list (which I believe is open to me as an ancillary order to give effect to an order for her reinstatement) and to make a recommendation that the Department seek the CCYP to have her removed from Category 1 (which I do not believe falls under jurisdiction in these proceedings at all). Mrs Bond's status as Category 1 is primarily a matter for the CCYP. Whether any decision I make on the matter is influential to it, is a matter for it.

42 Mrs Bond has described her son Andrew as a "pervert", and implies by that assessment of her son that his evidence should not be believed when it conflicts with hers. She had spoken initially about reconciliation with her son, and informed the Department that had actually occurred. But that does not mean that the allegation against Mrs Bond evaporate. For his part, in a letter he wrote to Mr White on Thursday, 22 November, 2007 at the request of Mrs Bond and his grandfather, Andrew indicated: "....In relation to forgiving mum, I have done that some time ago. In regards to reconciliation with mum, the Collins Australian School Dictionary describes restoration as: '...to reconcile two things that seem to oppose one another, means to make them work or exist together successfully...'. Also '...if you reconcile yourself to an unpleasant situation, you accept it...'

Therefore, on the basis of accepting the unpleasant situation I now have with my mother, I accept I have reconciled my relationship with her... Regarding my allegations of abuse between the ages of 13/14 - 22, I simply cannot retract these comments as they are the truth..."

43 It appears that Mrs Bond's difficulties had first arisen when Andrew had approached Mr McMenamin and Mr Jones for a character reference to permit him to attend theological training at bible college, presumably as a prelude to his admission as a minister of the church. Andrew, who was called to give evidence in the hearing by Ms Brus, suggested in his evidence that he was pursuing that course of religious training not necessarily with the intention of his becoming a pastor of the church but, as I understand the position, for some spiritual support and for him to possibly take on a counselling role in the church. That was not Mr Jones's perception, however. He understood that Andrew was seeking to become a pastor like his father and grandfather before him. 44 In any event, Mr McMenamin and Mr Jones both considered Andrew to be unsuitable as a minister and refused to provide him with any references to support his theological training. They apparently believed that Andrew had anger issues in his life and had become aware that he had an unhealthy obsession with pornography and had been unfaithful to his wife with extra-marital affairs with various married women, some of whom were members of the church and some (but apparently not all) of which involved sexual intercourse.

45 Mr McMenamin, recognising that Andrew needed counselling, arranged a series of mentoring sessions or discussions, sometimes with Andrew's wife being involved and sometimes on his own. Mr McMenamin saw that role as essentially part of his pastoral responsibilities. And it was in those mentoring sessions, Andrew revealed first to Mr McMenamin and later to Mr Jones who was called in by Mr McMenamin, the allegations he had against his mother, expanding on them in some detail over time, presumably to make a clean breast of matters which had troubled him and, no doubt, provide some justification in his own mind for his current difficulties in obtaining a reference from Mr McMenamin and Mr Jones. Andrew also indicated in his evidence in this hearing:

"....I did not want to live a lie anymore..." The genie was out of the bottle and cannot now be put back. The allegations were brought to the attention of the police (who have subsequently taken no action with respect to the allegations), the Department of Youth and Community Services and the Department of Education. 46 There is some confusion over the sequence of events involving Andrew's disclosures. He recorded in an affidavit which formed the basis of his evidence in this hearing: "....Prior to 2006 I had not told anyone about the applicant's inappropriate sexual conduct with me that began when I was a child. By October, 2006 I was able to speak openly about what my mother did to me, and I was finally able to tell my wife Melinda what I had experienced as a child and its effect on me. As a result of my disclosure of the past events to my wife we as parents agreed to change the terms on which we would (permit) our three children see the applicant - their grandmother.

I remember specifically the first time I spoke to my mother about the inappropriate sexual contact she had with me. That conversation took place one evening on a weekday in October, 2006, shortly after I had told Melinda about the matter . I telephoned the applicant and asked if I could call on her to speak to her about an issue. I then visited my mother at her home for the purpose of speaking to her about her past conduct from my childhood. I commenced the discussion by saying words to the effect: 'Mum I have been thinking about stuff from my childhood. You used to nibble my ear and rub my penis.' My mother did not deny that she had any inappropriate contact of a sexual nature with me.

I then asked my mother words to the effect: 'Why did you do this? Do you know the effect it has had on my life? Why won't you admit it?' My mother responded by saying 'um', 'ur' as if she was going to apologise, but could not get it out. I then said to my mother words to the effect: I want you to know I am going to tell Tim McMenamin and Peter Jones.' My mother did not say anything in response to that straight away. After a couple of moments my mother said to me words to the effect: 'How did you finally realize this?' I then said: 'I have always known all the time.' My discussion with the applicant lasted between 15 and 30 minutes. At no stage during the discussion did the applicant deny what I was saying to her. I did not observe that the applicant was visibly upset or distressed. It was almost as if she was somehow expecting this conversation..."

My emphasis. The words I have highlighted had some significance to Mr Moorhouse because what Andrew wrote in his affidavit conflicts with his oral evidence given in the hearing. He claimed in his oral evidence that he first told Mr McMenamin before he communicated with his wife and then to his mother.

47 In any event, Andrew contacted his mother and went and saw her, confronting her with the allegations he made against her and informing her that he would no longer permit his children to be with her unsupervised. Therefore, it would have been no shock to Mrs Bond when Mr McMenamin and Mr Jones sought to interview her over the allegations - and she apparently did not express any surprise at the interviews when the allegations were raised with her.

48 There were three separate meetings. Those meetings were conducted in a local park at Mrs Bond's request, apparently to provide a neutral place for the meetings - an odd venue, I would think. Mr McMenamin and Mr Jones were called to give evidence in the hearing by Ms Brus. Mr Brad Simpson and his wife, who were present at the park as support for Mrs Bond, were called by Mr Moorhouse to give evidence in the hearing. Mr Simpson was present at two of those sessions. His wife was present at all three sessions. Mr Simpson and his wife know Mrs Bond through their membership of her church and because they lived close and would visit Mrs Bond at her home regularly. Mrs Bond therefore asked them to accompany her at the meetings and they agreed. Andrew attended the last of the three meetings and for a time had a separate discussions with his mother. 49 Mrs Simpson recorded in a written statement which formed the basis of her evidence: "....Despite the difference in ages (Judith Bond is about 20 years my senior), Brad and I have had friendship with Judith. I think this is partly because we have not been judgemental towards her as, I have observed or have become aware, have some other people in church. It appears to me that some people in the church had high expectations of Judith Bond as a pastor's wife and to my observation were not pleased that she did not attend church on Sundays. On occasion comments to the effect that Judith was aloof and standoffish were made to me. I often responded to the effect: 'In fact, Judith is a friendly person when you get to know her.'

(Mrs Bond's former husband) was a very busy man with priorities outside of the home but Judith Bond appeared to be there for her children. Judith was a committed mother. She seemed to manage her household well. She is a trained infant school teacher. When my children were young, Judith liked to share her ideas about how to manage young children. She would often say to me to the effect: 'Have you tried this? Have you tried that?'

I found Judith to be a responsible woman of high moral values. There was a time in our relationship with Judith where my husband and I trusted her to the point that Judith helped us out when we had a weekend away. On this occasions one of our children stayed with her family overnight..."

50 Mrs Simpson recalled in her written statement that at the counselling sessions: "....Mr McMenamin and/or Mr Jones related to the effect that Andrew had told them that Judith Bond had performed oral-sex on Andrew Bond when he was an adult. Throughout the meetings, Mr McMenamin and Mr Jones (especially Mr Jones) would repeat the allegation to Judith. Judith appeared disconnected in her response. She either did not reply or said to the effect: 'I do not recall'. She did not admit to any of the allegations. I remember Judith Bond was quiet during those meetings... Judith Bond was admonishing Andrew Bond over his extra marital affairs..." Mr McMenamin and Mr Jones apparently became somewhat frustrated by Mrs Bond's continued unresponsive attitude at the counselling sessions. She did not seem to them to be addressing the issues that they were raising and responded with words, such as "I have no recollection of that" or "I have no memory of that" or not responding at all, but referring instead to issues involving her former husband which were unrelated to the allegations made against her. In response to the allegation that she had oral sex with Andrew as an adult, Mrs Simpson apparently spoke to Mrs Bond encouraging her to speak more directly to address the questions asked of her. She did not reply.

51 Mrs Bond appears now to be suggesting that Andrew has been influenced by her former husband, whose pornographic material - magazines and videos - he had observed as a child. In discussions Mr McMenamin and Mr Jones had with Mrs Bond's former husband, he apparently denied that he had pornographic material in the house but the evidence before me refutes that assertion. For one thing, Andrew recorded in his letter of Thursday, 22 November, 2007 to Mr White:

"....I also have been asked to comment on my pornography addiction as a youth and I can confirm this is true, probably as a result of the history of what was occurring at that time in my life. Thankfully, this is no longer a burden in my life..."

And Mrs Simpson recalled in her evidence a conversation she had with Andrew when he was approximately 14 years old in which he told her that he had discovered some pornography in drawers on his father's side of the bed and he asked his father about it, being told that he had confiscated it at a counselling session (which Andrew at the time apparently did not believe).

52 The sleeping arrangements for Mrs Bond's children do not necessarily appear to have been particularly conducive to the secret liaisons between Mrs Bond and Andrew that is alleged against her. For a time Andrew shared a bedroom with his younger brother, Peter or his older brother, Jeffrey. When Jeffrey, left home after completing the Higher School Certificate, Andrew moved into his bedroom alone. Joanne at the relevant time had a separate bedroom. The bedrooms for the children were together in one part of the house with adjoining doors. Jeffrey and Joanne were summonsed to appear in the proceedings by Mr Moorhouse. (Peter was not.) Jeffrey and Joanne assert that until Andrew made the allegations against his mother, they were not aware of any unhealthy relationships between Mrs Bond and Andrew. (That apparently was also the view of Peter when he was interviewed as part of the EPAC investigation.)

53 Andrew indicated in his evidence that the incidents when his mother kissed him goodnight were conducted in a darkened room. The incidents were silent, brief and regular but, apparently occurred on occasions when he must have been sharing a bedroom with either of his two brothers. Yet neither brother apparently was aware of anything of a sexual nature occurring between Andrew and his mother, although in the hearing Jeffrey did not appear to me to be expressing any real surprise over the serious allegations made against his mother by Andrew. It would be difficult to accept as credible evidence that the incidents actually took place as Andrew described them in a shared bedroom were it not for the fact that Mrs Bond has to some extent provided some corroboration of the incidents when she claimed that Andrew encouraged sexual contact with her when she kissed him goodnight.

54 Also the fact that Andrew initially allowed his mother to mind his own children, stay overnight in her house, put them to bed and take one of them on a holiday interstate, only to later restrict her access to his children contemporaneously with his disclosures of his mother's sexual indiscretions, is an odd position for him to take if the allegations he now makes have any substance. He claimed that he had "suppressed" the issues he had with his mother up to that time - not blocked them out entirely from his mind. But the incidents which he alleges occurred would have certainly been known to him whether he chose to reveal them to other persons or not. And yet he did not put any embargo on Mrs Bond's unrestricted access to her grandchildren. Moreover, since the allegations came to light, Andrew, his wife and children had attended Mrs Bond's 60th birthday party. A photograph taken at that party shows an apparently happy occasion. For these reasons, and other reasons, Andrew's credibility has been challenged by Mr Moorhouse in this hearing.

55 And Mr Moorehouse referred in that respect particularly to comments made by Dean J of the High Court in Longman v. R (1989) 168 CLR 79 at pp.107 and 108, viz: "....The fallibility of human recollections and the effect of the imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollections of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine... No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely..."

56 I have to say that these essentially industrial proceedings - a claim under Part 6 for reinstatement of a teacher in the public education system - seems to have strayed somewhat into a very depressing domestic situation with an examination of family relationships which is not customary for the Commission. It is indeed a very sad story and all members of this family must suffer by the disclosures that have inevitably been made in this hearing and which I am called upon to assess. At no time has there been any request that any of the details and the identify of the persons involved be suppressed, however, and it in not customary for the Commission to do so.

57 And clearly if the allegations against Mrs Bond are confirmed, such conduct would be "reportable conduct" under S.39(1) of the CCYP Act and the Department would be obliged to notify the CCYP. In such circumstances, Mrs Bond's subsequent status as Category 1 and the Department's decision to place her on the NTBE list is an inevitable consequence of its findings following the investigation. It remains a question whether the findings of the Department's investigations are supported by the evidence before me, having particular regard to the provisions of S.5A of the Teaching Services Act. I believe they are.

58 As Mr Moorhouse submitted, since the allegations against Mrs Bond by Andrew were essentially denied by her, the onus of proof of those allegations rests on Ms Brus. As the Full Bench of the Commission (Cahill J - Vice President, Hill J and French C) indicated in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz:

"…The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw at p.362..."

59 I accept that, as Mr Moorhouse submitted, simply because Andrew has repeated the same story concerning his mother to a number of different people does not give it corroboration. A person cannot corroborate himself otherwise the simple repeat of the same allegation by that person 25 times would mean that the story is corroborated [R v. Whitehead (1929) 1 KB 99 at p.102]. And, as Mr Moorhouse indicated in his submissions, Andrew does not necessarily present himself as an entirely credible witness on some points. But those are to my mind minor issues which I do not regard as very significant in this hearing. He still impressed me as a forthright witness in the hearing who was prepared to give very detailed - and I believe for the most part honest - evidence on matters which clearly would have been very stressful and sensitive for him and much of which was against his interests - to "...bear his soul..." in these proceedings, as Ms Brus submitted. I do not believe that the discrepancies in his evidence diminish the central issues of concern in this hearing. I also note the comments made by Jeffrey when he was cross-examined by Ms Brus. The transcript records him saying: "....Andrew is someone who - he has always been straight and honest. Sometimes he will push the boundaries but Andrew is the real deal, you know, if there's a situation, he'll bring it up: he'll tell you, listen, I don't like the way you did this with my kids and you can work with that..." 60 In any event, I do not believe that Mrs Bond presents as a credible witness. Jeffrey indicated in his evidence under cross-examination:

"....With mum, you're ducking, you're dodging, you're weaving. You don't know where you stand. Unfortunately you don't know with mum - sorry, you don't know the accuracy of what mum is saying and yes, there's the difference between (Andrew and his mother) is between night and day..."

That has also been my experience in the hearing, and apparently also the opinions of Mr McMenamin, Mr Jones and Mr White. 61 I have also been particularly influenced in my opinion of Mrs Bond's evidence by the following factors:

Whilst Mrs Bond has now denied many of the allegations in these proceedings, her initial response to the allegations when they were raised with her in meetings with Mr McMenamin and Mr Jones - and later in interviews with EPAC - was far from convincing as support for her innocence of the serious allegations made against her. In her sessions with Mr McMenamin and Mr Jones, when confronted with the allegations, Mrs Bond used the expressions: "I do not recall", "I have no recollection of that" or "I have no memory of that". Not an unqualified denial, I would think. Mr Simpson and his wife suggest that Mrs Bond often spoke in such vague terms and it does not surprise them that she would be less than emphatic when confronted with the allegations. But words like "I do not recall", "I have no recollection of that" or "I have no memory of that" when confronted with the serious allegations is to me a lukewarm response and, to my mind, not really a denial at all. That is the assessment of Ms Brus in her submissions and I agree with her.

It is Andrew's evidence that on occasions when she kissed him goodnight, Mrs Bond aroused him sexually with her kissing and he put her hand directly on his penis. But it was, he claimed, Mrs Bond who actually rubbed his penis, making it hard. That would not have happened if Mrs Bond had pulled her hand away and, if she rubbed his penis, she was, in fact, the instigator of the action and Andrew merely responded to it.

Whilst the night-time visits allegedly happened on occasions when Andrew was sharing a bedroom with Jeffrey or Peter, Mrs Bond claimed that when Andrew was seeking to have him rub his penis, she said to him: "No Andrew. No more." Jeffrey or, apparently Peter do not recall the incident Andrew describes but neither it would appear do they recollect Mrs Bond speaking to Andrew either, and telling him no. That would be likely to remain in their memory, I would think, if it had occurred at all. In fact, to my mind, it would be more likely that, if Mrs Bond had spoken to Andrew in the manner she claimed, they would have heard it and remembered it. That suggests to me that Mrs Bond remained silent when she visited Andrew at night.

Mrs Bond's letter of Wednesday, 13 June, 2007 to EPAC is confusing. She indicated in that letter that "... once Andrew sat next to me in the family room. He took my hand and put it on his leg, moved my hand to his groin then his penis..." but then stated that "...the second time I knew it was wrong...". Why did it take a second time for the incident to be considered to be wrong? The solicitor who had initially represented her subsequently explained what Mrs Bond had meant in that letter, ie that, as she indicated in the passage in her letter to which I have highlighted in this paragraph, the incident only happened once . What she apparently meant in the letter was that in that one incident her son had placed her hand on his leg (to which she did not object) and then on his groin area (when she knew it was wrong and told him to stop). But, in my opinion, there remains some ambiguity in the letter to suggest that Mrs Bond was not altogether blameless over the incident. I also note from her evidence in cross-examination in the hearing that she was prepared to concede that the incident actually occurred twice .

In that letter of Wednesday, 13 June, 2007 Mrs Bond indicates that her "...driving record of forty years still stands clean with no police record because my driving has been right...". It is not Mrs Bond's driving record at issue in these proceedings, however, and not something which weighs in her favour, in my opinion.

According to Mrs Bond's evidence, on Wednesday, 13 June, 2007 Andrew attended her home and exposed his genitals in front of her, asking her to play with him. Since at the time Andrew was an adult, the incident was not "reportable conduct" as Category 1. But to my mind the incident she does describe still suggests some earlier indiscretions by Mrs Bond. Why would Andrew simply appear at her house and make that offensive request unless there was some history of an unhealthy sexual relationship between the two of them already?

Andrew seems to be suggesting in his evidence that it was another incident entirely to which he was referring when Mrs Bond gave him oral sex (and he allowed it to continue because, as he indicated in his evidence, he was enjoying it). His evidence on that point was very emphatic. Mrs Bond does not appear to be addressing that incident at all in her evidence. I accept that much of the evidence in this hearing is speculative and circumstantial but it leads me inevitably to conclusions adverse to Mrs Bond, even on the higher standard of proof demanded by Briginshaw v. Briginshaw (if not according to the criminal standard of proof - beyond reasonable doubt) - and certainly, having regard to the obligations on the Department under S.39(1) of the CCYP Act, the Department's findings concerning Mrs Bond's conduct with Andrew was such as to require the Department to notify the CCYP as "reportable conduct". 62 What has disturbed me the most in this hearing is that, on the basis of Mrs Bond's own evidence, she has taken such a passive role with her own child who was clearly troubled and needing counselling over his aberrant sexual behaviour. She seems to believe that Andrew's attitude was adolescent fantasy which he would simply grow out of without any intervention as a parent. That was not going to happen, as the evidence before me in this hearing has so clearly revealed. Andrew presented as still a troubled young man who is working through his problems with the assistance of his wife. He conceded in his evidence that he encouraged his mother in the sexual acts which he allegedly committed with her, saying that he had enjoyed it. But he was a child for much of this time and clearly it is the parent in such situations on which the guilt must primarily fall. Whilst I do not propose to intrude any further into the unhealthy domestic situation which has been described in this hearing anymore than is strictly necessary for me to resolve the issue before me, I have to say that I would expect any teacher to take a considerably more active role with any child in her care to arrest such unsatisfactory conduct.

63 As I indicated earlier in this decision, I believe that the investigation carried out by the Department concerning this issue has been thorough and the findings that were made by it are, in my opinion, sound and open to it. I had indicated as much in my preliminary decision of Thursday, 18 December, 2009 (at p.11) to which I referred earlier in this decision and which I repeat here:

"...I do accept that the allegations against Mrs Bond have already been the subject of apparently very detailed investigation within the Department and by an external, independent body. It may therefore be the case that Mrs Bond's Part 6 application does no more than rake over dead coals. That would not be in her interests any more than it would be in the interests of the Department..."

64 The emphasis of Mr Moorhouse's submissions, as I see it, is placed on a risk assessment of Mrs Bond to determine whether such allegations as are made against her would be such as to justify her not being employed teaching children. That is certainly the task of the Commission in cases like L v. Commissioner for Children and Young People which concern whether or not a "prohibited person" within the meaning of S.331(I) of the CCYP Act may be returned to work in child-related employment or whether that person represents a risk to the safety of children [S.33J]. As Mr Moorhouse suggested in his submissions, the reasoning of the Full Bench in New South Wales Department of Education and Training v. Cassis supports the contention that the conclusion that an employee is guilty of sexually inappropriate conduct with a child does not automatically mean that they should be excluded from employment with children as a risk to them. I note also that Mrs Bond appears to have an otherwise unblemished record as a casual teacher. A comprehensive assessments of Mrs Bond by Mr W John Taylor, a psychologist, whose reports were admitted into evidence by Mr Moorhouse without Ms Brus requiring him for cross-examination, confirms that in his view Mrs Bond represents no threat in a return to the teaching service. Mr Taylor's assessments are not really challenged in these proceedings but I consider that the issues he raises were not explored in sufficient detail for me to comfortably rely on Mr Taylor's assessments.

65 And it must still be of concern to the Department that it is facing not one isolated incident with Mrs Bond but a series of incidents over a lengthy period of time. Also, whilst Mrs Bond has not been emphatic in her denial of the serious allegations against her by Andrew, she still does deny them. I believe she has not come to terms with them. To use Andrew's words, she is continuing to live a lie. 66 Furthermore, in my opinion, the question of risk assessment arises in Part 6 proceedings only when I am considering the prospect of reinstatement in employment of Mrs Bond. Mr Taylor's assessments are directed to the question of recidivism. As Ms Brus submitted, the primary task before me remains to determine whether or not the placement of Mrs Bond, as a casual teacher, on the NTBE list ( ie the effective termination of her services) was unfair, ie "harsh" "unreasonable" or "unjust" within the meaning of S.84(1). In my considerations in that respect I should have particular regard not only to the obligations on the Department by virtue of S.5A of the Teaching Services Act but also the obligations placed on the Department by S.39(1) of the CCYP Act. It is trite to say that Mrs Bond's continued engagement as a casual teacher by the Department must be dependent upon her meeting all of the requirements of the teaching service currently imposed by those legislative provisions. If there were discrepancies in the investigation carried out by the Department, it may open the door for a review of the position with Mrs Bond but I am satisfied that there are none.

67 I therefore conclude that the Department has acted fairly to Mrs Bond in that context. I regard her conduct over a lengthy period of time with her child to be such as to be totally incompatible with the teaching profession and to make her unsuitable for it. I therefore see no ground for my intervention in support of her in this hearing. I decline to do so and I dismiss her Part 6 application.

Bond, Judith applicant Bond, Andrew second son Bond, Jeffrey first son Bond, Joanne daughter Bond, Melinda daughter-in-law Jones, Peter pastor McMenamin, Timothy pastor Miles, Christopher solicitor Simpson, Brad school teacher Simpson Lisa diagnostic radiographer Taylor, W John* psychologist White, Steven investigator

*Evidence admitted without the witness being required for cross-examination

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.

[2007] NSWIRComm 158

At a glance

Court

Decision date

Source

Judgment (139 paragraphs)

Cases Cited (15)

Cited By (1)