Background Information and assessments
1. In interview CJF expressed sexual interests in peer aged and older males as well as peer aged and young adult females. She did not express any paedophilic or hebophilic interests in males or females. She reported that she has never engaged in sexual activity with an underage child and she denied a history of or interest in any deviant or otherwise non-mainstream sexual behaviours.
2. CJF described her sexual drive as low and it seems that she is not particularly sexually driven.
3. CJF said that she does not feel a need to have any form of sexual outlet in her life as sexual contact is not important to her. However she believes that she should make an attempt to explore relationships with others includes connecting sexually with people.
4. CJF demonstrated a satisfactory understanding of consent and sexual boundaries and did not endorse attitudes consistent with sexual abuse.
5. CJF demonstrated some insight into the possible impact of abuse on victims.
6. CJF's account at interview suggests that substance abuse is not an area of concern for her.
7. CJF said that prior to the trigger matters coming to light she had not experienced any significant mental health concerns. In 2009 and 2010 she experienced symptoms of depressed mood and initiated treatment with Dr Borenstein.
8. CJF reported that the treatment undertaken with Dr Borenstein was beneficial in achieving a better understanding of herself and reducing 'self-loathing' as well as helping her to learn from her experiences and to better understand the importance of seeking help when she needed it.
9. CJF reported that she had not consulted with a mental health professional at any other time, though she had attended a family session recently with her sister and her mother to address family dynamics and to improve communication. She did not report a need for further intervention.
10. CJF's responses to a personality inventory resulted in a profile that was "within normal limits with no area of notable pathology identified". However the results suggest that some caution should be applied to interpreting the results of the assessment because CJF's response set was somewhat defensive in that she appeared to have minimised personal vulnerabilities and to have denied even minor shortcomings about which most people are honest. However such defensiveness is common in these types of assessments.
11. Based on the results of the personality assessment, CJF is likely to be optimistic and confident and to live her life by a clear set of goals and principles. This in combination with her large social support network bodes well for her and indicates that she is likely to be a resilient person. She is best described as warm, empathetic and engaging. However it is likely that she would be uncomfortable with confrontation and interpersonal conflict.
12. Based on the personality profile CJF appears to be happy with herself and does not see the need to make changes in her life through therapy. However if she were to engage in treatment she presents with a range of emotional and interpersonal strengths that would assist her to engage in and profit from such intervention.
[2]
The Trigger Matters
1. By way of context CJF explained that she had spent many years coaching sporting teams and that as she aged she continued to coach school-based teams with children who were the age that she was when she started coaching. She had developed friendships with people she had coached and their families and had developed a practice of allowing those people to contact her personally and when necessary to seek emotional support from her. She believed this to be part of her role as coach but has now realised that she had blurred the boundaries regarding the role of a coach and that of a friend. She said that she developed this pattern of relating to her players over time and in the context of relative immaturity as she had been young when she started in the coaching role.
2. CJF reported that through her coaching role she developed a friendship with a teenaged girl who was having personal difficulties. She said that though this girl was attending the school where the trigger matters occurred she knew her before commencing work at that school. It was through that girl that she came to know the student who was the victim of the trigger matters.
3. CJF said that over time she began spending increasing amounts of time with the student victim and engaged in personal communication with her. She said that she questioned some of her decisions at the time but ignored her concerns because she wanted to be the person to help people and that "their problems became my problems".
4. CJF said that over time she developed feelings for the student victim and became attracted to her sexually. She was unsure if she loved the student victim but did feel that she was in a relationship with her. In that context she engaged in sexual contact with the student victim over about a six-month period. At the time she thought that it was "mutual" but in hindsight acknowledged the abuse of her position and that she was responsible for distorting the relationship and initiating sexual contact.
5. CJF is aware of how she distorted her thinking at the time and acknowledged that she blurred boundaries in her relationship with the student and ignored her responsibility as the adult and the authority figure.
[3]
Opinion
1. CJF has no criminal history and does not impress as anti-social in her attitudes or behaviour.
2. CJF's educational and work history suggest that she is hardworking and has positive future goals and a prosocial connection to the community.
3. CJF's lifestyle seems to be stable. She has good friendships and an active social routine and people on whom she can call for support. She has no history of substance use or mental health concerns though she had some reactive depression after losing her job as a result of the trigger matters.
4. The most notable issue in the assessment is CJF's lack of relationship experience. She has never had a long term relationship and "her experience of mature sexual intimacy is limited, if not absent. She lacks confidence in this regard and seems quite isolated and at times lonely". However she has a low sex drive and sex is not a priority in her life. She reported no hypersexuality or sexual deviancy.
5. CJF seems to be a stable, prosocial, capable and resilient individual. However her lack of relationship experience means that she is immature regarding her capacity for mature intimacy. This issue is the single most significant contributor to her inappropriate behaviour regarding the trigger matters. Her personality and experience result in her wanting to be there for others to her own personal detriment and she struggled to negotiate boundaries which resulted in poor practices and allowing others to become more personally involved than was appropriate. Within this context she developed the relationship with the student victim and over time increased contact and sexualised and distorted the relationship because she felt a connection to the student victim. She failed to recognise the inappropriateness of the situation because of her immaturity with respect to relationships and intimacy.
6. CJF has learned valuable lessons in recent years which will stand her in good stead to manage any future risks.
[4]
Risk Management
1. CJF demonstrated an understanding of the need for child protection and affirmed a commitment to keeping children safe and learning from her mistakes and respecting her role as an adult and an authority figure. She said that she has "massively" changed her practices since losing her job following the trigger matters and the changes reflect her commitment to risk management. Her changed practices are:
1. She has friendships with adults only.
2. She does not make friends with any young person who she knows or is involved with through her coaching.
3. She does not give out her personal contact details to people with whom she is involved professionally.
4. She rejects any requests for friendships, including on Facebook, from young people.
5. She is committed to maintaining professionalism in her work.
6. She does not socialise in her home with people known to her professionally.
7. She does not associate with young people at events such as sporting dinners and similar events without adults being present.
8. If a lone child is waiting to be picked up after coaching she will ask another adult to stay back so that she is not alone with the child.
9. If a girl reaches out to her for support or offers her a hug she does not reciprocate.
10. If a young person approaches her to discuss personal matters she encourages the child to discuss the problems with someone else such as a friend, family member of counsellor.
11. She does not place herself in any role of mentor or support person for a young person.
12. She maintains transparent work practices with her manager from whom she can seek guidance if concerned.
13. She said that she would seek professional support if she was ever concerned about her own functioning.
14. She is aware of and maintains her knowledge of relevant legislation and guidelines with respect to child protection.
[5]
Risk Assessment
1. Actuarial risk assessment instruments for sexual reoffending have been validated for use with male offenders and their applicability for female offenders is not known. Rates of reoffending for females are typically "far lower" than for males. It is therefore not possible to provide a statistical expression of the risk of reoffending by CJF. The analysis undertaken is based on consideration of factors that Dr Seidler understands to be related to CJF's risk of reoffending taking into account existing literature and risk assessments with male offenders.
2. Issues identified as protective against the future risk of sexually abusive behaviour by CJF are:
1. She has never been charged with a criminal offence.
2. She has not come under the notice of authorities at any other time other than for the trigger matters.
3. She does not present as anti-social.
4. She does not have a history of significant substance abuse.
5. There is no reported history of serious or entrenched mental health concerns.
6. She did not endorse a history of hyper sexuality or entrenched sexual deviancy.
7. She did not endorse attitudes consistent with sexual abuse.
8. She did not report any concerns with sexual self-regulation.
9. She appears to be socially skilled and to have positive peer connections.
10. Her lifestyle in the community has been stable and productive.
11. She was not the victim of child sexual abuse.
12. She does not present with any psychopathic traits.
13. She does not appear to identify emotionally or socially with children.
14. Her lifestyle appears goal directed.
15. She does not have a history of difficulties relating to dealing with authority.
1. The factors that would elevate the risk of repeated behaviour are:
1. She did not engage in sexually abusive behaviour with a male.
2. Her relationship and intimacy experience is lacking such that she remains immature in relation to those matters.
[6]
Conclusion
1. Overall "it is not suggested that CJF is a generalised risk to children and young people in a sexual manner or otherwise. The risk factors that contributed to her inappropriate behaviour remain although she now has more insight into them" and her "plan for risk management and safety appears to be reasonably sound and successful to date".
2. Any future sexually inappropriate behaviour is likely to be of a similar nature where CJF would distort and sexualise a relationship with a young person, more likely a female adolescent within the context of a close personal connection. This highlights the need for CJF to "maintain respectful, appropriate and professional boundaries in her dealings with children and young people".
3. CJF's risk appears to be well managed on an ongoing basis especially taking into consideration the risk management plan she has developed and the insight she has gained through experience and as a result of psychological treatment. It is important that she maintains her commitment to child safety and she should be encouraged to maintain work practices and to seek professional advice and support as needed She would gain from psychological treatment regarding her relationship/intimacy difficulties but that would be primarily for the purpose of wellbeing and life satisfaction rather than reducing risk.
In respect of Dr Seidler's report, in its record of the reasons for refusing CJF's application, the Children's Guardian:
1. States that the report of Dr Seidler was "weighted heavily" when making a final recommendation in relation to the application for a WWCCC.
2. Cite Dr Seidler's report as follows:
Doctor Seidler concludes that you are not a generalised risk to children and young people in a sexual manner or otherwise. However, of concern, Doctor Seidler notes that the "risk factors that contributed to her inappropriate behaviour remain, although she now has more insight into them". Doctor Seidler further notes that "any future sexually inappropriate behaviour is likely to be of a similar nature where [you] distorts and sexualises the relationship with a young person, more likely a female adolescent, within the context of a close personal relationship".
1. States that "(W)hilst it is acknowledged that the report is primarily favourable, Doctor Seidler's identification of current risk factors is of significant concern. Due to the seriousness of your workplace record, the Office of the Children's Guardian is not satisfied "that you do not pose a risk to the safety of children given that Doctor Seidler identified that the risk factors associated to your workplace record, currently remain".
During the hearing Dr Seidler gave evidence in chief and under cross-examination. In addition to the matters outlined above and which were canvassed in her report, her additional evidence was to the following effect:
1. Her questioning of CJF in respect of her risk protection strategies was because it part of her usual practice to question clients about their risk protection strategies and was not because she was of the view that CJF particularly needed such strategies. The strategies proffered by CJF were devised by CJF independently, not in consultation with Dr Seidler and were considered by Dr Seidler to be "exemplary".
2. A recently published paper by academic author Dr Franca Cortoni suggests that the overall risk of reoffending of female sexual offenders is 2% so therefore all female sexual offenders should be considered to present a low risk of reoffending. Dr Cortoni's view is consistent with Dr Seidler's clinical experience, though the statistics could be affected by under-reporting of sexual offences by females.
3. In Dr Seidler's view, the risk posed by CJF is low, even discounting the view of Dr Cortoni, because CJF's risks are well managed. If CJF were a male she would still assess CJF as a low risk of reoffending because the assessment she conducted was independent of gender.
4. At the time of the trigger matters CJF's emotional maturity may have been close to that of the student victim. In her view CJF was, and remains, immature with respect to emotional issues and issues of social intimacy. However she now has a better understanding of social relationships and of the public's view about the appropriateness of friendships between people aged 30 and those aged 16.
5. Her view that CJF would benefit from psychological treatment about her relationship and intimacy difficulties is based on her belief that this would make CJF happier, not because it is necessary due to the risk of repeating the behaviours involved in the trigger matters.
6. In her view, CJF is willing to engage in further therapy if she were at risk of transgressing relationship boundaries.
7. The reference to a risk factor being that CJF did not engage in sexually abusive behaviour with a male is because sexual offences committed by females are most often committed by the female as a co-offender with a male. The absence of the male co-offender negates the possibility that the behaviour was as result of coercion by a male and suggests rather that it was a wilful action.
8. It is not possible to ascribe a risk level lower than "low risk" because all people pose some sort of risk. In her view CJF does not pose a real and appreciable risk taking into account:
1. The trigger matters are the only matters recorded against her.
2. CJF has used her experience resulting from the trigger matters correctively.
3. CJF does not present with a large number of objective risk factors.
4. In her view the situation is more akin to a person doing something stupid and learning from it and never doing it again.
In a letter addressed to CJF and dated 7 December 2015 (the "addendum report") Dr Seidler comments on the views expressed by the Office of the Children's Guardian about her report, to the following effect:
1. Regarding her comment that the risk factors for CJF's inappropriate conduct remain present, Dr Seidler comments:
This is not unusual, as many risk factors are chronic and at times, unchangeable. The presence of risk factors themselves does not mean that you will go on to engage in further inappropriate behaviour, especially when my assessed level of risk in your case was Low. Rather than the presence of the risk factors themselves, what is important to me in being concerned about risk is the person's insight into the risks and their capacity to manage these, as ostensibly everyone lives at risk every day of engaging in inappropriate behaviour. In your case I commented that you are more aware of your risks than you were previously and although your lifestyle has not changed, your attitude and awareness has and you have a solid plan in place for the management of those risks. Which gives me confidence that they will not exert a powerful influence over your behaviour in the future.
1. Dr Seidler also states that in outlining future scenarios in which CJF's risk might manifest in inappropriate behaviour:
This is common practice in risk assessment, indicating that (is) 'best practice' to outline the circumstances of any future risk. This does not mean that risk will eventuate, it is simply to highlight the nature of someone's possible behaviour if the risk is unmanaged"
On 21 January 2016 Principal Member Higgins remitted the decision of the Respondent for reconsideration based on the material then before. In addition to Dr Seidler's addendum report, the additional material which had not previously been considered comprised:
1. Correspondence from the Association of Heads of Independent Girls Schools NSW to the effect that CJF had been contracted for nine weeks in 2004 and nine weeks in 2006 as a hockey umpire and there was no record of complaint or concern about her.
2. Correspondence from the Department of Education Probity Unit to the effect that CJF was screened in 2007 for an external organisation and returned a "clear outcome" and that the Department of Education does not hold relevant personnel files about CJF.
In its record of decision in refusing the WWCCC following the reconsideration, the Office of the Children's Guardian expresses the view that there was insufficient information to warrant a change in the determination that CJF poses a risk to the safety of children and young people.
During the hearing Dr Seidler's evidence in respect of the matters raised in the addendum report was to the following effect:
1. Risk factors identified with respect to sexual offending do not usually go away. The relevant issue is the ability of the subject person to manage these factors.
2. In listing possible scenarios of risk associated with CJF she was following standard procedure for such assessments. Her consideration of possible risk scenarios does not mean that she considers these to be likely scenarios for CJF.
3. In her view CJF has learned from her mistakes and has good strategies in place to promote professional behaviour.
During the hearing CJF gave evidence in chief and was cross-examined. Her evidence in respect of matters going to the risk of repeated behaviours such at the trigger matters was to the following effect:
1. CJF outlined protective strategies similar to those listed by Dr Seidler in her report and added the following additional strategies:
1. If she were responsible for training at venues where children were to be picked up by parents, as well as ensuring other adults were present with her, she would ensure that other coaches had another adult present.
2. If it were not possible for other adults to be present she would ensure that parents were advised and consented to the situation.
3. If issues arose regarding acceptable professional conduct she would seek the advice of the Office of the Children's Guardian as well as her manager. If issues arose regarding her personal life she would seek the assistance of Dr Borenstein.
4. She has updated the privacy settings on her social media accounts and vetted her "friendship" list to ensure that it is suitable.
1. She is now of the view that the issue about relationships with children is a "black and white" issue, with no "grey" areas.
2. If granted a WWCCC she would like to coach junior sporting teams.
3. It was put to CJF in cross examination that whilst she has now developed a set of rules to guide her behaviour, at the time of the trigger matters she was bound by the rules of the school code but that did not prevent her engaging in the trigger matters. CJF responded to the effect that since that time she has learned the importance of maintaining boundaries between her personal and professional life and has confidence in her ability to do so because she has done so since the trigger matters.
4. CJF also said that in addition to the set of rules she has established, her social circumstances have now changed. Whereas at the time of the trigger matters she was socialising in clubs, her friends are now older and her socialising is in keeping with the activities of 30-40 year olds rather than 21 year olds. Whilst she is involved with a University sporting team including players aged 18 -22 she does not "party" with them.
5. CJF said that prior to Dr Seidler commenting on her lack of relationship experiences she had not considered that as an issue but she is now aware of the issue. However her experiences in relation to the trigger matters have made her reluctant to explore relationships.
[7]
Any information given by the Applicant in, or in relation to, the application
As noted in the preceding sections of these Reasons, CJF provided a statement dated 16 March 2016 as well as references from work colleagues. These have been reviewed in preceding sections of these Reasons.
The Tribunal is of the view that CJF was an honest witness. Her testimony was consistent, she did not attempt to excuse her behaviour and she appeared genuine in acknowledging the harm done to the student victim by the trigger matters.
[8]
Any other matters that the Children's Guardian considers necessary.
In her submissions Counsel for the Children's Guardian submits that "there is evidence to suggest that the applicant had also been involved with the student's friend in a personal relationship of some nature but the girl's parents had put a stop to the continuation of that relationship" and that CJF has "engaged in a close personal relationship with at least one student, possibly a second student". The Tribunal assumes this is reference to CJF's relationship with ES.
[9]
Conclusion
Taking into account the totality of the evidence, the Tribunal reached the following conclusions on the matters set out is s. 31 of the Child Protection (Working with Children) Act:
[10]
The age of the student victim and her vulnerability, the difference in age between the student victim and CJF and the relationship between the victim and CJF and whether CJF knew that the student victim was a child
Whilst the student victim was not below the age of consent, she was still a child and was in a student- teacher relationship. The age difference was approximately ten years. CJF was well aware of the age and of the status of their relationship. The student victim was in a role that required her to have frequent contact with CJF.
The student victim was in a vulnerable position due to her youth relative to CJF as well as the student/teacher relationship and in particular her frequent contact with CJF as a result of her role as Sports Captain.
[11]
The seriousness of the trigger matters,
The matters represent a breach of professional responsibility and involved a sexual relationship which posed serious risk to the vulnerable young person. They are therefore serious matters.
[12]
The period of time since those offences or matters occurred and the conduct of the person since they occurred, the age of the CJF at the time of the trigger matters, the seriousness of CJF's total criminal record and the conduct of the CJF since the offences occurred, CJF's present age
CJF has no criminal record. CJF has now admitted that the relationship was a sexual one and had police continued to investigate the matter it is possible that a successful criminal prosecution might have eventuated. However in considering the facts presented the Tribunal has accepted that the relationship was sexual and there are no other criminal matters alleged against CJF and no record that she has come to police notice except for this matter.
Taking into account the evidence of the Applicant, Mr Borenstein and Dr Seidler, the Tribunal is satisfied that since the trigger matters the Applicant has undertaken appropriate treatment to address issues that contributed to her behaviour and that led to the trigger matters.
Taking into account the totality of the evidence, including the reports and evidence of Mr Borenstein and Dr Seidler as well as the evidence of the Applicant and contrary to the views of the Children's Guardian, the Tribunal is of the view that CJF does recognise the impact of her behaviours on the student victim.
Whilst CJF is assessed by Dr Seidler as remaining emotionally immature relative to her age, and inexperienced in respect of personal relationships she is now 7 years older than she was at the time of the trigger offences. Her social circumstances and friendship groups have also changed reflecting that she is now aged 34 and not 26-27 as she was at the time of the trigger matters. Taking into account CJF's current age, her conduct and attitudes since the trigger matters and all of the evidence, including the evidence of Dr Seidler that she did not express any paedophilic or hebophilic interests, there is little likelihood of any repeated behaviour in respect of a young person.
The trigger matters indicate that a code of behaviour was, at the time of the trigger matters, insufficient to prevent CJF from breaching her professional responsibility and behaving in way that caused harm to a child. However the Tribunal is satisfied that CJF's maturation, her experience following the trigger matters, including her loss of employment, personal distress, concern for the student victim and new learning resulting from counselling is such that she will in the future comply with limits of acceptable behaviour.
Whilst the Children's Guardian views it as significant that CJF continued the relationship with the student victim during the workplace investigation, the Tribunal is satisfied that the matters referred to in the foregoing paragraphs also apply in respect of her understanding of the inappropriateness of the relationship as a whole.
Taking into account all of the evidence including the professional references tendered by CJF and the oral evidence of her employer, the Tribunal is satisfied that despite the Applicant's resumption of working with children following the granting of a WWCCC in 2011 and subsequent work in sports related employment, there is no record of any concerns about her behaviour.
Based on Dr Seidler's addendum report and her oral evidence, and contrary to the view of the Children's Guardian, the Tribunal is satisfied that in referring to the ongoing presence of risk factors and in describing possible risk scenarios, Dr Seidler was not suggesting the CJF was at risk of repeating the behaviours but was utilising professional best practice in establishing the parameters of any hypothetical risk. The Tribunal accepts the evidence of Dr Seidler that CJF's current circumstances are protective against the risk factors and the possible emergence of the hypothetical risk scenarios.
The Tribunal is satisfied that since the trigger matters CJF has engaged in therapy that has assisted her to better understand her behaviour and to develop strategies to overcome the risk factors and to avoid the scenarios described by Dr Seidler.
[13]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The Tribunal is of the view that repetition of the trigger matters would seriously impact on a child victim.
The Tribunal notes the opinion of Dr Seidler that CJF presents as a low risk of repeating the trigger matters and accepts that assessment as being consistent with the evidence before it.
[14]
Any information given by the Applicant in, or in relation to, the application
The Tribunal formed the view that CJF was a credible witness who remains valued by her employer.
[15]
Any other matters that the Children's Guardian considers necessary
Whilst in her submissions Counsel for the Children's Guardian states that there were no further submissions, the Tribunal notes that in her submissions she refers to the possibility that the Applicant had a personal relationship with another student, probably ES.
The Tribunal is of the view that the evidence of Mr Borenstein, Dr Seidler and CJF supports a conclusion that around the time of the trigger matters CJF blurred boundaries of professional and social relationships. The Tribunal accepts that this may have been the case with respect to her relationship with ES.
However, no specific allegations have been raised with the Tribunal regarding CJF's conduct with ES and the Tribunal has been provided with no information about any investigation into, or conclusions about, the relationship.
The Tribunal is of the view that it is likely that CJF's relationship with ES was a manifestation of the blurring of boundaries that resulted in the trigger matters and, as outlined above, the Tribunal is of the view that CJF has addressed that issue. In the absence of specific allegations or investigation about CJF's relationship with ES the Tribunal is of the view that it does not of itself, add to the risk posed by CJF.
[16]
Conclusion
Taking into account the conclusions noted above and the views of the Tribunal as expressed throughout these Reasons, the Tribunal is of the view that CJF has addressed the matters that resulted in the trigger matters and that the totality of the evidence does not establish that CJF poses a real and appreciable risk of harm to children that is greater than the risk posed by any other person.
It follows that the orders of the Tribunal are:
1. The decision of the Children's Guardian dated 8 February 2016 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.
2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
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: 22 November 2016
On 27 March 2014 the Applicant, who is referred to in this decision as CJF, applied for a Working with Children Check Clearance (WWCC) from the Respondent, the Children's Guardian.
On 5 September 2014 the Respondent imposed an interim bar preventing the Applicant from working with children. On 4 September 2015 the Respondent imposed a second interim bar.
On 10 November 2015 the Respondent refused the Applicant's application for a WWCCC.
On 8 December 2015 the Applicant applied to the Tribunal for review of the decision of the Children's Guardian to refuse to grant the WWCCC.
On 21 January 2016 Principal Member Higgins remitted the decision to the Respondent for consideration of the material then before it.
On 8 February 2016 upon reconsideration, the Respondent decided to refuse the applicant a WWCCC.
Section 14 of the Child Protection (Working with Children) Act 2012 establishes that an "assessment requirement" arises where any of the matters specified in Schedule 1 of that Act apply.
Schedule 1 of the Child Protection (Working with Children) Act includes circumstances in which a person has been the subject of a finding by a reporting body that he or she engaged in sexual misconduct committed against, with or in the presence of a child, including grooming of a child.
The matter that triggers the assessment requirement in respect of CJF is a finding of sexual misconduct made in 2009 concerning conduct occurring in October 2008 to June 2009 (the "trigger matter"). Following a workplace investigation the Applicant was found on the balance of probabilities to have established and maintained an improper relationship with a year 11/12 student at the school at which the applicant was employed.
Section 18(2) of the Child Protection (Working with Children) Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
There is no dispute that the Tribunal has jurisdiction to hear and determine the application.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian. (section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]).
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal or of information that would lead to the identification of those persons.
Child Protection (Working with Children Act) 2012
The Child Protection (Working with Children) Act, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance.
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 the Act.
The Act was amended by legislation that came into force in November 2015. However CJF's application for a WWCCC was made prior to the commencement of the amended legislation and the Tribunal applied the legislation as it stood at the time of that application.
The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children.
The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration.
The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows:
"the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."
Section 4(1) of the Family Law Act 1975 defines "abuse" as including:
"causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence"
The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant:
"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."
The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).
Taking into account all of these matters, it is our view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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.
Part 3 of the Child Protection (Working with Children) Act 2012 provides for the determination of applications by the Children's Guardian.
Subsection 15(4) sets out the factors that the Children's Guardian may consider when making the assessment. At the time of CJF's application these were:
1. The seriousness of any matters that caused the assessment in relation to the person,
2. The period of time since those matters occurred and the conduct of the person since they occurred,
3. The age of the person at the time the matters occurred,
4. 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,
5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person,
6. Whether the person knew, or could reasonably have known, that the victim was a child,
7. The person's present age,
8. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred,
9. 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,
10. Any information given in, or in relation to, the application,
11. Any other matters that the Children's Guardian considers necessary.
The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application in respect of an application made prior to the commencement of the amendments in November 2015. These are:
1. The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar
2. The period of time since those offences or matters occurred and the conduct of the person since they occurred,
3. The age of the person at the time the offences or matters occurred,
4. The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person,
6. Whether the person knew, or could reasonably have known, that the victim was a child,
7. The person's present age,
8. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
9. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
10. any information given by the Applicant in, or in relation to, the application,
11. Any other matters that the Children's Guardian considers necessary.
The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an Applicant but to minimise possible risks to the safety of children.
In this administrative review, neither party bears the onus of proof. There is no presumption that the Applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if she were a "disqualified person".
The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account:
1. the nature of the cause of action or defence, and
2. the nature of the subject-matter of the proceeding, and
3. the gravity of the matters alleged.
In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of evidence of risk in the context of an application under section 28 of the Child Protection (Working With Children Act) 2012 as follows at [29], and [31]-[33]:
[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).
[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):
"It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case."
[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78).
[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.