BQU v Children's Guardian [2015] NSWCATAD 121 | Case summary

NCAT Administrative and Equal Opportunity|2015-04-02

The applicant's present age (s 30(1)(g))

The applicant is 53 years of age.

The seriousness of the applicant's total criminal record and the applicant since the offending conduct occurred (s 30(1)(h))

The applicant does not have a criminal record. His claim that his conduct since mid-2005 has been exemplary and did not involve any inappropriate conduct with children is supported by character references provided by colleagues and supervisors to the Guardian, and is uncontradicted. On the available evidence I could not be satisfied that as alleged the applcinat had invited a student to follow him on Instagram.

Likelihood of repetition

The parties disagree on the likelihood that the conduct will be repeated. Mr Packer argues that there is no appreciable risk of the conduct being repeated citing in support the opinion of Dr Baron. Ms Mahoney on the other hand contends that the risk is real. She asserts that even to this day the applicant seeks to minimise his conduct. Ms Mahoney contends that the applicant's testimony indicates that he is reluctant to admit to the offending conduct unless confronted with clear documentary evidence. She contends this is consistent with his reaction when initially presented with the allegations and sought to portray his conduct as an attempt to develop rapport with students and denied providing his contact details to, or initiating contact with, students.
In addition, she submits that even on his own case the risk of the applicant reoffending turns on his ability to continue to implement the risk management strategies he has developed.
I will return to consider the question of the likelihood of the offending conduct being repeated.

The impact on children of any such repetition (s 30(1)(i))

There can be no argument that if the offending conduct were repeated any child victim would probably suffer harm. The impact on individual children is likely to vary. Some would be traumatised and deeply upset; others might shrug off the conduct and see it as pathetic. Even if assumed that the conduct did not lead to anything more sinister, as Dr Baron pointed out it might have a "normalising effect" and result in students being more vulnerable to future approaches from predatory adults.

Any information given by the applicant in or in relation to the application (s 30(1)(j))

Mr Packer points to the evidence given by the applicant of the substantial changes he has undergone since 2005 and the risk management strategies he has implemented throughout that period. He points to the references provided by employers and colleagues which support his self-report about those strategies, and to his claim that he has not acted in an inappropriate way since 2005.

Any other matters that the Children's Guardian considers necessary (s 30(1)(k))

None raised.

Does the applicant pose a risk to the safety of children?

In arriving at the correct and preferable decision, the key issue to be decided is whether the applicant now poses a risk to the safety of children. In answering that question I must have regard to the matters listed in s 30 of the Act together with any other relevant matters. That assessment must be made having regard to the paramount consideration of the Act: the safety, welfare and well-being of children and, in particular, protecting them from child abuse. Unless satisfied that the applicant poses a risk to the safety of children, the decision under review must be set aside.
The assessment of whether the applicant poses a real and appreciable risk to the safety of children involves having regard to both the probability of reoffending and the nature of the apprehended conduct. The risk of reoffending requires conscientious consideration to be given to all relevant facts including the nature, frequency, incidence and recency of any relevant conduct, together with the available evidence about the implementation of risk minimisation strategies and rehabilitation undertaken, both demonstrated and prospective. It also requires consideration of any expert evidence. In practical terms, unless the evidence provides a real satisfaction that a person's past offending conduct was atypical and most unlikely to be repeated, there will always be some apprehension that the person may re-offend.
In assessing the seriousness of the applicant's conduct I have borne in mind that not all of the matters the subject of the misconduct findings made by the Office could be said to have, or the potential to have, put the safety of children at risk. Many of the findings relate to matters which may reflect poorly on the applicant's judgement and pedagogical style, but could not be said to indicate that he poses a "risk to the safety of children" within the meaning of the Act. Examples include his actions in misrepresenting his qualifications on references provided on behalf of students, permitting students to use their phones and ipods during class and making derogatory comments to students about other members of staff.
There can be no argument that during the latter part of his time at the College, the applicant posed a risk to the safety of children. Even if, as claimed, he did not intend his out-of-school contact to progress to anything more sinister, that contact, in particular that involving Students A and B, nonetheless posed a relevant risk. Whether or not as Mr Packer contends the Office incorrectly characterised the conduct as "grooming" in my opinion is somewhat beside the point. Whatever the applicant's intentions might have been the conduct that did occur was serious. In any event, given the nature and frequency of the applicant's interactions with Student A, it is difficult to resist the finding that had she been more receptive to his overtures there was a real risk that contact might have progressed to something more insidious.
Of concern is the fact that at the time of the offending conduct the applicant was not a young teacher whose conduct might arguably be the result a combination of youth, lack of experience and proximity in age to his victims. He was in his early 40's and had been teaching for about two decades.
Also of concern is the duration of the offending conduct. The conduct involving Student A took place in April and May 2005; with Student B between December 2005 and May 2005; and with Students C and D throughout 2004.
Weighing against those factors is the positive evidence of rehabilitation. The applicant's claim not to have repeated that conduct since mid-2005 is supported by the opinion of supervisors and colleagues. Apart from the Instagram allegation there is no material to suggest otherwise. Significantly, not only is there the absence of adverse reports but the available material contains a number of positive and highly favourable reports about his interaction with students since returning to teaching in 2008.
Dr Webster believes that the applicant has learnt from his experience, undergone "substantial personal changes" and put in place durable and appropriate risk management strategies. In his opinion, the applicant has addressed the constellation of factors which led to the offending conduct: immaturity, depression, excessive alcohol use and significant stress.
Dr Webster's opinion is of course reliant on what he was told by the applicant. As he points out the psychometric assessment tools he employed together with his clinical judgement, mitigate to some extent the potential unreliability of self-reporting. Nonetheless his assessment (as is mine) relies heavily on the history given. The applicant's account of having successfully implemented a range of risk management strategies, while consistent with the evidence that he has acted appropriately since returning to teaching in 2008, is nonetheless largely unsupported. For example, there is scant evidence to support his claim that over the past decade he has reconnected with friends and family and enjoys age appropriate relationships. This is of concern given that Dr Baron and Mr Webster believe that the offending conduct was motivated in part by the applicant's need for "emotional connectedness". Dr Baron identified social isolation, interpersonal detachment and lack of support networks as areas of potential future vulnerability. Similarly, as pointed out by Ms Mahoney, the evidence that the applicant consistently abused alcohol throughout 2003 to 2005 but no longer does is largely unsupported.
The hypothesis that the offending conduct was caused by a combination of stressors together with immaturity explains but does not explain away that conduct. While some comfort can be taken from the opinion of Dr Baron and Mr Webster that there is no indication of personality pathology or clinical disorder, it remains troubling that a constellation of stressors resulted in the the applicant reacting in the manner he did.
As Dr Baron pointed out there are a number of potential risk factors relevant to the likelihood of the applicant reoffending. Dr Baron is confident that the applicant has put in place adequate measures to guard against relapse and the re-emergence of those risk factors. Whether the applicant will not repeat the offending conduct depends, among other things, on his ability to maintain the personal discipline he has apparently been able to maintain since 2005. It also depends upon the degree of confidence with which the applicant's claim of having addressed the factors which caused him to reoffend can be accepted. Having given conscientious consideration to these issues, on balance I am not positively satisfied that the applicant will not repeat his offending conduct. I am satisfied that the applicant poses a risk to the safety of children and must therefore affirm the decision under review. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2015

Child Protection (Prohibited Employment) Act 1998(NSW)

Statutory scheme

The object of the Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances (s 3). Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act. "Children" are defined as persons under the age of 18 (s 5).
The Act makes it unlawful for a person to engage in "child-related work", unless they hold a "working with children check clearance of a class applicable to the work" or a current application has been made by the worker to the Children's Guardian for a clearance (s 8(1)). "Child-related work" is defined to include work in schools that involves "direct contact" with children (ss 6(1), (2)(g) of the Act; r. 10 of the Child Protection (Working With Children) Regulation 2013 (NSW)).
Part 3 of the Act deals with the granting and refusal of clearances. A person may apply to the Children's Guardian for a working with children check clearance (s 13(1)). If the Children's Guardian becomes aware that the applicant is subject to an "assessment requirement", the Children's Guardian must conduct a risk assessment to determine whether the applicant poses a risk to the safety of children (s 15(1)). A person who is the subject of a finding by a "reporting body" that they have engaged in sexual misconduct committed against, with or in the presence of a child, including the grooming of a child, is subject to an "assessment requirement" (cl. 2(a) of Schedule 1 to the Act). A reporting body is defined to include an employer or professional or other body that supervises the conduct of an employee (s 35(4)).
Section 15(4) provides that in making a risk assessment the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
Section 18 states: 18 Determination of applications for clearances … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
A person who has been refused a working with children check clearance is generally not entitled to make a further application for a clearance until five years after being given notice of the refusal (s 21(1)).
A person who has been refused a working with children check clearance by the Children's Guardian may apply to NCAT for an administrative review under the Administrative Decisions Review Act (s 27(1)).
Part 4 of the Act deals with reviews and appeals. An applicant must fully disclose to the Tribunal any matters relevant to the application (s 27(4)). Section 30 prescribes the matters that NCAT must consider in determining an application for review of a decision made by the Children's Guardian to refuse to grant a working with children clearance. Those matters mirror those listed, in s 15 of the Act, that the Children's Guardian may consider in conducting a risk assessment: 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.
The Act creates a presumption that a "disqualified person" - broadly, a person convicted of, or charged with a prescribed offence - "poses a risk to the safety of children" (s 28(7)). No such presumption is created in respect of a person, such as the applicant, who is not a disqualified person.
It is settled that the word "risk" in the Act should be construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following explanation given by Young CJ in Eq. in Commission for Children and Young People v V [2002] NSWSC 949 at [42] concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): What one is looking for is whether, in all of 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 children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of the children'.

The seriousness of the matters that caused a refusal of the clearance (s 30(1)(a))

The parties agree that, of the conduct found proven by the Office, that involving Students A and B was the most serious. They disagree however about its proper characterisation. Counsel for the applicant, Mr Packer, submits that, while inappropriate, the conduct fell at the lowest end of the spectrum of the type of conduct that would cause a person to be subjected to a working with children assessment.
Mr Packer contends that from Day 1 there has been a live issue about whether the conduct involving Students A and B constituted "grooming". Pointing to the definition of "grooming" contained in guidelines produced by the Children's Guardian, Reporting certain misconduct involving children (April 2014): '[B]ehaviour should only be seen as "grooming" where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and that there is no other reasonable explanation for it (emphasis added). Mr Packer submits that the applicant has proffered a reasonable explanation for his conduct that is inconsistent with a finding of grooming: emotional immaturity, alcohol abuse and unmet emotional needs. He points out that both Dr Baron and Mr Webster expressed concerns about characterising the conduct as being sexually motivated. He urges me to adopt the approach taken in BLU v Children's Guardian [2015] NSWCATAD 41, where the Tribunal (differently constituted) accepted at [94] that there was a reasonable explanation for BLU's behaviour that was inconsistent with grooming the child for sexual activity.
Counsel for the Children's Guardian Ms Mahoney submits that the conduct was significant pointing to the overtly sexual nature of the emails sent to Student A, especially those sent on the evening of 17 May 2005. Ms Mahoney contends that read as a whole, the messages sent over the course of that evening plainly constituted an invitation to Student A to engage in sexual activity. She argues that the evidence reveals a course of conduct with heavy sexual overtones which escalated over time.
Some of the messages sent by the applicant to students could be characterised as gross immaturity or, as described by Mr Webster, "transparently awkward attempts to mimic adolescent jargon". However, that involving Students A and B was plainly of a different character. Over a four-month period the applicant repeatedly sent Student B messages urging her to meet up with him and calling her "sexy babe". The conduct involving Student A was even more sexually overt.
While the conduct did not progress to physical or sexual contact and was not at the high end of the scale in terms of seriousness, that involving Students A and B was nonetheless serious. It was repeated, it continued over a period of some months and it was overtly sexual.

The period of time since those matters occurred and the conduct of the person since they occurred (s 30(1)(b))

Over ten years have elapsed since the conduct which triggered the investigation undertaken by the Office occurred. Since that time the applicant has taught in four different schools for a period totalling about six (school) years. Apart from the allegations relating to the School 6, there is no evidence to contradict his claim that the offending conduct was not repeated. That claim is consistent with the information given to the Commission by the deputy principal of School 3 (where the applicant taught between March 2008 and late 2011), the principal of School 4 (where the applicant taught between late 2011 and late 2013) and the principal of School 5 where the applicant taught in the first half of 2014. It is also consistent with character references provided by former colleagues. The principal and colleagues of School 4 attested that they had worked closely with the applicant and saw no evidence of the applicant acting in an inappropriate manner with children. They were well placed to observe the applicant given that it was a four teacher school.
The allegations relating to School 6 are significant to the assessment of whether there has been a repeat of the offending conduct over the past ten years. The deputy principal of the school accepted the applicant's benign characterisation of his comments after investigating the stripper and bus comments complaint. No disciplinary action was taken and the applicant continued to teach for the remaining five weeks of the school year without incident.
More concerning is the Instagram allegation given the applicant's history of inappropriate use of social media to initiate and maintain contact with students. Counsel for the Children's Guardian concedes that, on the available evidence, I could not make a positive finding about that allegation but contends it is nonetheless relevant to the assessment of risk, citing in support M v M [1988] HCA 68; (1988) 166 CLR 69.

BQU v Children's Guardian

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Judgment (8 paragraphs)

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Cited By (7)