BPE v Children's Guardian

The working with children legislative scheme

1. The object of the Act is to protect children by requiring persons engaged in child-related work to have working with children check clearances and by not permitting disqualified persons to engage in child-related work: the Act, s 3.
2. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (the Act, section 4 ).
3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the OCG for the relevant working with children check clearance. A breach of section 8(1) is an offence.
4. The definition of "child related work" includes a "worker engaged in work in a child related role." (the Act, subsection 6(1) ). Section 6(2) of the Act provides that the work referred to for the purpose of section 6(1)(a), is work for, or in connection with any of the activities, as listed in section 6(2)(a) to (m), and which are declared by the regulations, to be child related work. Included in the activities is work in schools, other educational institutions and private tutoring colleges. (the Act, paragraph 6(2)(g) .)
5. Two classes of clearance can be granted, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work: (the Act, section 12).
6. Section 14 of the Act defines an "assessment requirement" as a circumstance where any of the matters specified in Schedule 1 of the Act apply to the person. Schedule 1 details the "assessment requirement triggers" of which section 2 relevantly includes where a person has been the subject of a finding by a "reporting body" that the person has engaged in sexual misconduct committed against, with, or in the presence of a child, including grooming of a child. Subsection 35(4) of the Act defines "reporting body" to include a NSW Government Agency or Department.
7. Subsection 15(1) of the Act states that the OCG must conduct a risk assessment of an applicant for a working with children clearance (or the holder of a working with children clearance) if the OCG becomes aware that the applicant is subject to an "assessment requirement". The purpose of the risk assessment is to determine whether the person poses a "risk to the safety of children". Subsection 15(4) sets out the matters which may be considered by the OCG when conducting a risk assessment.
8. Subsection 18(2) of the Act provides that the OCG must grant a clearance to a person who is subject to a risk assessment unless the OCG is satisfied that the person poses a risk to the safety of children.
9. Section 27 of the Act makes provision for administrative review, by this Tribunal, of decisions of the OCG, including a refusal to provide a working with children check clearance (the Act, subsection 27(1)).
10. Subsection 27(4) of the Act obliges the applicant to "fully disclose" any matters relevant to the application to the Tribunal.
11. Section 30 of the Act sets out how an application for administrative review is to be determined by the Tribunal. It is in essentially the same terms as the matters contained in subsection 15(4), and is in the following terms: 30 Determination of applications and other matters (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.
12. In BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [49] it was held that on review, the Tribunal should consider both the factors as set out in subsection 30(1) and the matters set out in section 15(4) which the OCG may consider. The factors in both subsections address the same considerations expressed in slightly different language.
13. In determining the application under section 27 of the Act the Tribunal is to make the correct and preferable decision, having regard to all the material before it, including material which may not have been before the OCG. (Administrative Decisions Review Act 1997 (NSW)) section 63

Nature of the proceedings

1. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]

Burden of Proof

1. There is no legislated onus of proof in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
2. An application under section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
3. There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order under s28 of the Act. To affirm the decision under review the Tribunal must make a positive finding that the person poses a risk to the safety of children.
4. Although the applicant has no legal burden he does have a practical or forensic onus (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53) and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.

Risk to the safety of children

1. In this application, the primary issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. As stated earlier, the Tribunal must have regard to the matters contained in subsection 15(4) and subsection 30(1) of the Act in deciding this issue.
2. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) 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". ...'
3. These remarks of His Honour were cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: ADV v Commission for Children and Young People [2012] NSWADT 8 and RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10].
4. The remarks have continued to be cited with approval in reference to the current legislation, in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

The Issue

1. The primary issue before the Tribunal in this application is whether Mr BPE poses a risk to the safety of children. Unless the Tribunal is satisfied that he does pose such a risk, he must be granted a working with children clearance. The Tribunal's job is to make the correct and preferable decision in relation to this by having regard to the material in evidence, and with regard to the essential matters for consideration set out in subsection 30(1) (and subsection 15(4)) of the Act.

The Evidence and Consideration of the Evidence

1. The applicant relied upon the following documents: (a) Large bundle of material with tabbed documents up to 10(i) filed on 26 February 2015, including a report from Forensic Psychologist, Mr Bradley Jones dated 26 February 2015 (untabbed). (Exhibit A1)
2. The respondent relied upon the following documents: (a) Bundle of Documents filed pursuant to section 58 of the Administrative Decisions Review Act 1997 on 7 January 2015. (Exhibit R1)
3. The respondent also provided a written submission filed on 12 March 2015.
4. At the hearing, the applicant was sworn, gave oral evidence, and was cross examined. Mr Jones also gave evidence under oath during examination and cross examination.
5. Shortly after the hearing Mr BPE contacted the Tribunal and requested that he be allowed to provide a further written submission as he did not feel that he had satisfactorily expressed his case at the hearing. He had already sought and received the agreement of the Respondent to make this submission. The Respondent confirmed they had no objection, provided they were able to respond to Mr BPE's submission. A timeframe was proposed, with final submissions from the Respondent due by 2 June 2015. As Mr BPE had been unrepresented at the hearing, was clearly unfamiliar with what was expected of him, had not previously filed a final submission and as the Respondent had no objection, the Tribunal agreed to this request, and the matter was adjourned until 2 June 2015.
6. Mr BPE filed a further submission dated 6 May 2015, and also filed further evidentiary material on which he wished to rely. The Respondent objected to this evidentiary material and submitted that the Tribunal ought not accept it as this was not the purpose of the adjournment. The Respondent submitted that if the Tribunal were to accept the material into evidence, then they would require a further hearing to cross examine the professionals who had written the reports Mr BPE had now submitted.
7. The Tribunal determined not to accept the further evidentiary material Mr BPE had submitted, as this was not the purpose of the adjournment. The Tribunal therefore did not consider this material in making its decision. The Tribunal did have regard to Mr BPE's submission of 6 May 2015 in making the decision, but did not have regard to any reference he made to the additional evidentiary material he had provided after the hearing.

Mr BPE's Conduct

1. The Respondent's submission outlined the following conduct by Mr BPE which was regarded as posing a risk to the safety of children. Despite the initial notification by DEC being for "Sexual misconduct- Grooming, the Respondent did not submit that Mr BPE's conduct was sexually motivated.

2004 allegation

1. Mr BPE was casually employed for two days at a Sydney Public School, where it was alleged that he:

• Touched a student's forehead with his fingers;
• Slapped a female student across the face twice, touched her on the face a number of times and repeatedly called her "the happy girl";
• Grabbed the same girl's hair and told her he would like to cut it off.

1. This was not found to be "reportable conduct" and although it was regarded as inappropriate professional behaviour, it was considered to be trivial or negligible and no disciplinary action was warranted.

2008 allegation

1. Mr BPE was employed casually at a Sydney Public School. It was alleged that he patted students on the head and made comments which made them feel uncomfortable. Again the conduct was sustained but was not found to have reached the threshold of misconduct.

2012 allegations

1. On 15 and 22 August 2012 Mr BPE was employed as a casual teacher in a year 6 class at a Sydney Public School. Allegations were made against him, summarised as follows. That he: 1. Referred to 1. female students with descriptors such as "baby", "honey bee", "long lashes" "beautiful eyes" and "beautiful smile" rather than using their names, which caused the students to feel uncomfortable; 2. referred to male students with descriptors such as "cool hair", "Justin Bieber hair", "eftpos" and "cutie" as opposed to using their names which caused the students to feel uncomfortable; 1. Touched 1. female students on their heads, faces and arms (stroked and patted); 2. Stroked a male student on his head with an open hand saying "good boy"; 1. Drew a picture of a female student's face and his face on a work sheet and said "there's beautiful X and handsome Mr [BPE]," and leant over her with his arms on either side of her touching her head with his chin which caused the student to feel uncomfortable; 2. Used Facebook and messaged third parties during class; 3. Inappropriately 1. Showed the class pictures of females on his Facebook account; Checked his Facebook page; Invited students to "friend" him on Facebook; and sent email and MSN messages to and received messages from unknown females which were displayed on the smart board; 1. Used school library computers himself and assisted students to view inappropriate images of females and images of females generally and commented on those photos; and 2. Had inappropriate/conversations with male and female students as to his own personal/intimate relationships.
2. During an investigation of these allegations by the DEC Mr BPE admitted to some of this conduct, explaining that his actions were innocent or inadvertent. He denied other allegations.
3. The DEC investigation found each of the allegations sustained, and those allegations as numbered above at a(i), b(i), d, e and f were considered to be both reportable conduct and misconduct. The other matters were not considered to be reportable conduct. The reportable conduct was considered to be "grooming behaviour" and was therefore "sexual misconduct". Mr BPE appealed to the IRC, and the findings remained in place that the conduct occurred. Subsequent to the IRC appeal, the notification from the DEC to the OCG was amended to "sexual misconduct/crossing professional boundaries."
4. On 5 September 2013 DEC notified Mr BPE that approval for casual teaching had been withdrawn. He was advised that consideration was being given to placing him on the "not to be employed" list and invited him to make submissions. On 30 October 2013 DEC notified Mr BPE that approval for casual teaching was withdrawn and that his name had been permanently placed on the "not to be employed" list.
5. There have been no reports of adverse conduct since 2012. Mr BPE has not taught in a DEC school since 2013.
6. In relation to the allegations found by DEC to be misconduct or reportable conduct, Mr BPE has responded as follows:

• He concedes that he referred to female and male students at times using aspects of their physical appearance or terms personal to them. For example, he called a student called Melissa "honey bee" because this is what the word "Melissa" means in modern Greek. (Mr BPE is of Greek heritage). He explains that he used these terms to praise children, to encourage them or to be "lighthearted", and that his use of these nicknames was well intentioned. Given that Mr BPE has agreed to this conduct the Tribunal is satisfied that Mr BPE did engage in this conduct as alleged.
• He concedes that he patted three students on the head, back or shoulder, (two girls and a boy) whilst making positive comments to them, in order to encourage them and thank them for excellent behaviour in what he felt was a "challenging class". He denies allegations that he "stroked" children, although he states that he originally conceded that he did so because he believed that this conduct was no different to the patting he had conceded. In relation to the allegation that he leant over a student from behind, (although this was ultimately not found to be misconduct), he said that any touching was inadvertent, though he admitted to the picture as alleged and that he leant over the student. Given that Mr BPE has conceded some of this conduct the Tribunal is reasonably satisfied that Mr BPE did engage in the alleged conduct of patting children on the head, back and shoulder and leant over another student with his arms on either side of her.
• He concedes that he showed his Facebook page to the students, and has provided copies of the photographs that were witnessed by the students. He said that when he agreed to do this (in response to repeated requests from the students) he was "trying too hard to gain acceptance from a difficult class". He concedes that his display of Facebook was for a brief period only and that there were no explicit or offensive images displayed. He denies that he asked the students to "friend" him or that he messaged third parties during class. He acknowledges that his decision to do this was unprofessional and that he should not have done this. Given that Mr BPE has agreed to this conduct the Tribunal is satisfied that Mr BPE did show the students his Facebook profile, and some photos as alleged. However the Tribunal is reasonably satisfied that he did not ask the students to "friend" him, nor did he message third parties in class. The Tribunal is also reasonably satisfied that the images that were shown were not offensive, or inappropriate for children to see, but that it was professionally inappropriate for Mr BPE to have shown these to his students.
• He concedes that during the library lesson he searched for images of a celebrity, Grace Park, to show the students, as they had been asking who his favourite celebrity was. He used Google to find images and had not previously vetted the images such a search would produce, and an image was displayed of Grace Park in swimwear. He said that he recognised that this was inappropriate, closed the image immediately and apologised to the students. He denied that he assisted the students to access images themselves and denied that he intended to search for inappropriate images. The Tribunal is satisfied that Mr BPE did engage in the conduct he has admitted to, but not to deliberately searching for inappropriate images or assisting students to search for inappropriate images.

1. The consistent picture in these allegations and in Mr BPE's admissions is that of a teacher who is out of his depth in managing a class and has a very limited range of strategies, many of which are inappropriate, to deal with this. The Tribunal is satisfied that his conduct was unprofessional, and crossed professional boundaries. The Tribunal is also reasonably satisfied that there was no sexual motivation in Mr BPE's actions.
2. The Tribunal considered the conduct under each of the subheadings of sections 15(4) and 30(1) of the Act.

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 Respondent submitted that Mr BPE's conduct with children was unprofessional and inappropriate and that he therefore poses an unacceptable risk to the safety of children. The Respondent submitted that "the significance of the conduct, especially in 2012, is that over an extended period, it could operate to diminish a child or young person's understanding of appropriate boundaries which could expose them to a greater risk of sexual abuse, assault or grooming behaviours." As stated earlier, the Respondent did not submit that Mr BPE had any sexual intention towards children himself.
2. The Respondent submitted that Mr BPE engaged in similar conduct over a period of a number of years, and that the seriousness of the conduct escalated over that time, demonstrating his lack of insight and that the behaviour was entrenched.
3. The Respondent asserted that there have been reports of similar behaviour in the private tutoring centre where Mr BPE has worked for many years, leading to Mr BPE being spoken to by the Principal of the Centre. Mr BPE clarified that he was not singled out to be spoken to by the Principal of the Centre, but that she addressed issues about conduct with students at a meeting with all the teachers.
4. Mr BPE does not dispute that he touched children on their heads, back and shoulders, used nick names which referred to their physical characteristics, and accessed his Facebook page and images of celebrities on the school library computer. However he maintained that this was never with any sexual or improper motivation. Instead he submitted that he wanted the children to like him, that he is a tactile person and that he found that praising children and agreeing with what they asked him to do (ie. show his favourite celebrity and his Facebook page) was an attempt to make them behave in class. He conceded that this since these complaints were made and have been upheld, he has learnt a great deal about why this behaviour is not a good way to manage a class and the potential harm it can cause children.
5. The Tribunal notes that the Respondent does not assert that Mr BPE had any sexual intentions or motivation towards children, but that the risk he posed to the safety of children was that his conduct may lead to increased vulnerability to children being groomed or abused by other people. The Tribunal noted that the DEC had initially found that Mr BPE was guilty of Sexual Misconduct - Grooming, but that this was subsequently amended to Sexual Misconduct - Crossing Professional Boundaries. The Tribunal noted the definitions of sexual misconduct and crossing professional boundaries in the Practice Update 2013:1 Defining Reportable Conduct. produced by the NSW Ombudsman which states: "Sexual misconduct includes behaviour that can reasonably be construed as involving an inappropriate and overly personal or intimate: - relationship with; - conduct towards; or - focus on; - child or young person, or a group of children or young persons. In the area of 'crossing professional boundaries', particular care should be exercised before making a finding of sexual misconduct. For example, an employee who, on an isolated occasion, 'crosses professional boundaries' in a manner that involves little more than poor judgement could not be said to have engaged in sexual misconduct. Also, in cases where an employee has 'crossed boundaries' in terms of their relationship with a child, if there is evidence which clearly shows that the employee did not seek to establish an improper relationship with the involved child, then this does not constitute sexual misconduct. However, persistent less serious breaches of professional conduct in this area, or a single serious 'crossing of the boundaries' by an employee, may constitute sexual misconduct, particularly if the employee either knew, or ought to have known, that their behaviour was unacceptable."
6. On two occasions (2004 and 2008) Mr BPE's conduct was found to be inappropriate but did not cross into misconduct. In the terms of the definitions above, that conduct may well have shown poor judgement. Given the above definition, the repetition of similar conduct in 2012 is likely to have played a part in the finding of sexual misconduct. The Tribunal is satisfied from Mr BPE's evidence and the Respondent's own submission that there is no evidence that Mr BPE sought to establish an improper relationship with the children.
7. The Tribunal notes the Respondent's submission that "on their own the conduct complained of is on the lower end of seriousness, the risk of harm to a child or young person through ongoing exposure to such conduct is significant."
8. Inappropriate conduct towards children is always a serious matter, however on balance the Tribunal considered that Mr BPE's conduct was on the less serious end of the scale. The repeated nature of the conduct elevates its seriousness.

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

1. The conduct occurred on three occasions spanning over a number of years between 11 and 3 years ago.

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

1. At the time of the 2004 matters Mr BPE was 29 years of age. At the time of the 2008 matters he was 33 years of age and at the time of the 2012 matters he was 37 years of age.

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. The children involved were all students in classes taught by Mr BPE of upper primary school age. This would likely make then around 11 or 12 years of age. They were vulnerable by virtue of the fact that they were children under the care and control of Mr BPE who was their teacher at the time.

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

1. As stated above,

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

1. There is no dispute that Mr BPE was aware that the people subjected to his conduct were children.

The person's present age,

1. Mr BPE is presently 39 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred,

1. Mr BPE has no known criminal record.

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

1. As stated earlier, the assertion is that the impact of repeated behaviour of the same kind by Mr BPE would be to increase the vulnerability of children to abuse by others.
2. The Respondent's Risk Assessment and Section 20 Notice observes that during the course of the investigation by the Respondent or DEC Mr BPE has shown little capacity for insight regarding the inappropriateness of his behaviour. Instead he has sought to deflect blame for his conduct onto the children, and to criticise the way in which the DEC (and the Respondent) conducted investigations. The Respondent has submitted that Mr BPE consistently failed to take responsibility for his conduct, and that he has provided no evidence of professional growth and development. The Respondent therefore considered that Mr BPE poses an unaddressed and ongoing risk to children.
3. In submissions to the Tribunal, the Respondent acknowledges that more recently Mr BPE has accepted that he "overstepped the mark" and has taken steps to address this since March 2014 by undertaking courses and counselling. However the Respondent questions whether Mr BPE will be able to translate his theoretical insight gained from these interventions into practice and also whether his insight is genuine given his submission to the Tribunal which again focus on DEC process.
4. Mr BPE submitted two Statutory Declarations dated 21 February 2014 and 4 June 2014 and a final statement dated 7 September 2014 during the Respondent's investigation. Over this period, the focus of his submissions shifted from critiquing the process of the investigation by the DEC to a clearer understanding of the problems with his conduct in the classroom. He consistently asserts that his actions were innocently intended, and that he has learned from his experiences. His commitment to this is less convincing in his earlier documents than it is in the September statement, consistent with developing insight and awareness.
5. In his final submission to the OCG, Mr BPE states that he now recognises that whatever the explanation for his behaviour, he should not have touched students, made personal comments which could have caused them embarrassment, shown them his Facebook profile or Googled celebrities with them. He referred to now having many other strategies at his disposal which are good and appropriate for encouraging and rewarding students and that he will use these from this point forth. He refers to the insight he has gained from a number of resources, including books called Boundaries by Dr Henry Cloud and Dr John Townsend and Classroom Management Help for the Substitute Teacher by Barbara Pressman as well as the DEC Code of Conduct. He states that he has learned from past mistakes, particularly his desire to always be liked by the students. He states that he now has no interest in making excuses for his past mistakes; that he accepts he alone is responsible for past mistakes and that this has helped him grow as a teacher.
6. He provided certificates of courses he completed in 2014:

• Play by the rules- Child Protection - Harassment and Discrimination (completed 28 March 2014)
• Child Protection Awareness Training by Professional Learning and Leadership Development Directorate (completed 27 March 2014)
• Induction Child Protection Family Day Care (NSW) and Essential Child Protection (NSW) by In Safe Hands, Educators in Safety (completed 16 and 17 June 2014)

1. He provided numerous statements from other people which will be discussed later in this decision.
2. At the hearing Mr BPE acknowledged that he had not previously understood the implications of his conduct in exposing the children to potential "grooming" behaviour by others. Asked what he understood was "wrong" with what he had done, he said that he had not respected the rights of children and had encroached on their personal space, and made them uncomfortable. He said that he understood that this could also expose them to bullying or teasing by others if his behaviour made it seem like he was favouring them. When prompted about whether there were any other potential problems caused by his behaviour, he said that if he pats children or shows them Facebook (etc) it lowers their protective boundaries. He confirmed that he has developed insight because he does not want to upset children with his behaviour, and not simply because he is 'in trouble'.
3. Mr BPE told the Tribunal that he felt that the students would accept him more if he did what they asked him to do (show them pictures of his girlfriend on Facebook, and his favourite celebrity). He thought that this would show that he was 'one of them'. Class control can be difficult for a casual teacher and his approach was to try and keep the kids happy. He didn't realise there was anything wrong with being Mr Nice Guy.
4. He has sought help from a psychologist, his GP, who is also a counsellor, and his Pastor and has fully informed them of the allegations. He has also openly discussed his situation and sought the views of his employer and the Principal at the Tutoring College, other experienced teachers he respects, some parents of students he has tutored and some friends.
5. He said that he understood that he'd done the wrong thing from the time he was told about the allegations, though he conceded that his feelings at that time were also influenced by his bitterness about his sense that he was being treated unfairly by DEC. However he stated that he had a "lightbulb" moment where he realised that his conduct was wrong whether or not there was any explanation for it. He variously said that this "lightbulb" moment occurred within a couple of months of starting to see a psychologist, or closer to the time when he wrote his final submission in September 2014. The Tribunal noted that the statements from his psychologist and his pastor both indicated that this revelation occurred into the second half of 2014, and not earlier.
6. Mr BPE's submission of 6 May 2015 restates his evidence at the hearing. He refers to a number of other teaching resources he has used recently which have helped him understand the need for clearer boundaries between the teacher and students and have given him better strategies for class control as a casual teacher. He is also adopting a personal rule to always keep clear space between himself and students and will no longer touch them at all, nor use nicknames.
7. The Tribunal considered the report from forensic psychologist Mr Bradley Jones dated 25 February 2015. Mr Jones conducted a number of different psychometric tests to assess Mr BPE's personality and his risk of offending with children. Mr Jones states that the test results show Mr BPE has some narcissistic personality traits and a tendency to over identify with children and may have an inordinate interest in childhood behaviour and interests. He tends to construct the world in terms of rules, regulations, time schedules and social hierarchies. Mr BPE's desire for acceptance and recognition and his self enhancing behaviours are likely to have caused him to engage in the subject behaviour.

• Mr BPE's Psychologist, dated 15 September 2014 who states she has been seeing him for over a year, that he has recently been proactive, completing child awareness programs and professional development around setting boundaries with children. She says that he has realised that all forms of touching are completely off limits, that he does not need his students approval to be an effective teacher, and that his past behaviour needed to be modified. She states he now recognises that his job is to set appropriate boundaries both verbally and physically and keep order in the classroom. She considers that he presents no risk towards children.
• Mr BPE's Pastor dated 18 February 2014, who states he has had deep conversations and prayer sessions with Mr BPE throughout 2013 and 2014, they have discussed expected behaviour and alternate strategies for classroom management. He believes that Mr BPE will no longer engage in the behaviour as he has a better understanding of acceptable boundaries.
• Mr BPE's Pastor dated 10 September 2014 in which he states he has continued to have discussions with Mr BPE and can see and hear real differences regarding his attitude to past behaviours. He no longer tries to justify his unprofessional behaviour, but talks instead about the boundaries he will put in place to avoid any repetition.
• Mr BPE's GP dated 28 February 2014, who advised that Mr BPE developed anxiety and depression as a result of these allegations and that he has provided counselling which has helped Mr BPE to educate and analyse the predicament in order to modify his "creative coping mannerism". He describes Mr BPE as a "basically timid and quiet person" who presumes that others around him are being good and peaceful, because this is what he is like. The GP has assisted him to reflect on this and learn to be more cautious. He states that Mr BPE has demonstrated that he is capable of learning from his mistakes and that is eager to move forward so that he can teach again.
• Principal of the Tutoring Centre, dated 16 February 2014 who states that she is aware of the allegations against Mr BPE, and noted that there had been occasions in 15 years of him patting a child's head/shoulder, which was not sexual, but was to acknowledge good work. She has spoken to him about this in the context of the current legislation, explaining that it could be construed as favouritism, and that verbal comments/acknowledgement would be preferable. He stopped this behaviour. She does refer to him having a "certain naivety" when dealing with children.
• Teacher from the Tutoring Centre, dated 12 May 2014. She is supportive of his being cleared to teach again, confirms his conduct towards students is not sexual, but that she has spoken with him a number of times to encourage him to avoid praising children's physical appearance and avoid touching children.
• Assistant Principal of a Catholic Primary School where Mr BPE had taught casually dated 19 February 2014. She is aware of the conduct, and refers to his actions as demonstrating poor judgment but states that as a casual teacher he may have missed some professional development regarding the required standards for professional conduct. She believes that he has now learnt his lesson and understands the full implications of his actions and the required standards. She states that he has been a dedicated and conscientious teacher at her school.

1. The Tribunal gave careful consideration to all of this evidence, and noted that Mr BPE has experienced a very great change in his circumstances as a result of his conduct in 2012. He has been unable to work in his chosen profession which has been very challenging for him on a number of levels and a significant catalyst for change. He has sought professional help from his GP, a psychologist and spiritual guidance from his Pastor over an extended period. He has talked with numerous other people about his situation and has been open with them about the conduct in question He has attended a number of awareness raising and training programs regarding child protection and conducted his own research about how to improve his skills as a teacher.
2. The Tribunal does not doubt that this experience has had a significant impact on the way that he intends to behave in the future.
3. The Tribunal was mindful of Mr Jones' assessment that Mr BPE's approval seeking behaviour was entrenched and would be difficult to change, and that he lacked insight into his own behaviour. Consistent with Mr Jones' assessment, the Tribunal did observe Mr BPE to be somewhat lacking in insight, to highly value the students liking him, and to be generally anxious to please. The Tribunal also observed Mr BPE to be somewhat literal and rule focused in his approach which is also consistent with Mr Jones' assessment. His progression in understanding is evidenced from the volumes of written material and the testimony of professional colleagues and practitioners who have known him over an extended period and who are familiar with his work and personal style. These consistently express the view that he has changed and will no longer behave in the same way again.
4. On balance the Tribunal preferred Mr BPE's own evidence and the evidence of the professionals with whom he has a longer association, who have seen progression in his awareness over a period of time. The Tribunal is reasonably satisfied that as a consequence of his reflection and the assistance he has received, he has developed a greater insight into why his conduct was inappropriate and the ways in which it poses a risk to children. The Tribunal accepts his evidence regarding the additional strategies he has developed for classroom management, as well as the "rules" he has set for himself which will ensure that he does not engage in the same kind of conduct in the future. The Tribunal was reasonably satisfied that it was highly unlikely that Mr BPE will repeat the kind of conduct in question.

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

1. Mr BPE provided a number of other professional and personal references in support of his being granted a working with children clearance and returning to teaching. These letters are:

• Employer reference dated 24 February 2014 from the owner of the Tutoring Centre where Mr BPE has worked since 1999, in which she states she has seen him teach, and he is happy, friendly and popular with students, has never hurt a student, and he has tried to improve.
• Teacher at a school in southern Sydney who has used Mr BPE as a casual teacher for her class and has also worked with him briefly. She said that he is popular with the children, has a humorous and kind manner and that she has never witnessed any inappropriate behaviour.
• Parent of a child Mr BPE tutored in 2011 and 2012. She states that he has told her all about the allegations and that she fully trusts that he will never do it again, as he understands that patting is wrong.
• Friend from church dated 12 September 2014. He states that initially Mr BPE focussed on proving he was innocent but that he had more recently accepted responsibility for overstepping the mark.

1. These references are of significance primarily because they indicate that Mr BPE's skills as a teacher are valued by the owner and Principal of the Tutoring Centre and they support his return to work, even though they have been made aware of his conduct. They are operating a business for profit, and have a duty of care towards the students who attend the Centre. It is reasonable to assume that they would not wish to expose this business to any risk, and so the confidence they express in Mr BPE goes to their clear belief that he poses no risk to children.

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

1. The matters referred to in the Respondent's written submission under this factor (Mr Jones' assessment and the risk assessment) have been addressed under earlier factors regarding the likelihood of Mr BPE repeating the conduct in question.
2. In summary the Respondent notes that although the conduct is on the less serious end of the scale of sexual misconduct, the behaviours have been present for many years and appear to be entrenched. Mr BPE has only recently developed insight into why his behaviour was wrong, but has not yet had an opportunity to demonstrate changed behaviours in practice. His psychological profile suggests this might be difficult for him to achieve, meaning that past conduct is likely to be repeated. If this is the case then there is a risk that children in his care will be embarrassed and may also become more susceptible to grooming behaviours from others, and so the continuation of the conduct presents a significant risk of harm to children. The Respondent submits that the correct and preferable decision is to refuse the working with children clearance.
3. The Tribunal has already found that whilst serous, the conduct Mr BPE engaged in was at the less serious end of the scale, and that it is highly unlikely that Mr BPE will engage in similar conduct in the future. As such the Tribunal is not reasonably satisfied that Mr BPE poses a risk to the safety of children and that he should be granted a working with children clearance.
4. The Tribunal therefore orders as follows: The decision of the Respondent dated 15 October 2014 to refuse to grant the Applicant a working with children check clearance is set aside and a decision substituted that the Respondent grant the Applicant a working with children check clearance authorising the Applicant to engage in paid and unpaid child-related work. 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

Amendments 14 August 2015 - Typographical error 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: 14 August 2015