The applicant's evidence as to the circumstances of the workplace misconduct
The applicant acknowledged in cross examination that the Principal told him in the course of 1992 not to have students alone in the classroom with him. He says that he did not interpret that comment as being specifically directed to him but rather a statement of what the policy was at the school.
The applicant's evidence in relation to the conduct at the netball games referred to in Departmental Charge 1 above was that he had attended the first game in the capacity as a "private person" and not as a teacher because he had an interest in coaching and umpiring netball. He said that he had given a "congratulatory pat on the shoulder" to the Year 6 female student and not acted inappropriately. The applicant said that the girls on the netball team had "begged" him to attend the other game because they thought he had brought them good luck. The applicant stated in his response to the respondent's outline of submissions:
I will continue to defend myself against the inaccurate and embellished accounts of the student involved in the alleged incidents at the Netball games. There are serious concerns in her version of events that have never been tested through cross examination. I do not believe she and the other members of the team that I congratulated, felt uncomfortable when I patted them on the back of the shoulder and stand by my previous denials of ever having touched her stomach. The following question has never been put to these students and in particular the complainant, that question is this: if these girls were so concerned and uncomfortable in respect of my actions, then why is it that they were so eager for me to attend the next two games? And further to this, why did they not make a complaint at first instance instead of several weeks later?
The applicant agreed under cross examination that the note he gave the Year 6 female student referred to in paragraph 37 crossed personal boundaries. He told the Tribunal that writing the note had been "very foolish". The applicant stated in his evidence that he "had not planned to write it, it was rambling" and the student "made up the story" about him hugging her at the netball game after she had received the note. In his submissions, the applicant states:
I move to the note. This was a grave error in judgement on my behalf. I have shown remorse for writing it and regretted it as I have maintained since this first came to light. I have never lied about or hidden the fact that I wrote it. It was written at a time of turmoil in my life, and at a time in my life where I was depressed and grieving after a student from my class died after being hit by [a] car on the way home.
In relation to Departmental Charge 2, the applicant denied there was any inappropriate contact between him and members of the female student dance troupe. He told the Tribunal that on one occasion he put his hand on the shoulder of a student to console her because she was upset. He said he took evasive action with respect to any contact students tried to initiate with him. The applicant submits:
I did not touch any student in an inappropriate manner when I was involved with the Dance Group. It was the students who had initiated the contact. I will continue to argue this point as the directive states that I am not to touch students unless their safety was at risk
…
The directive does not say anything about having to remove myself from a situation and nor does it say that a student is not allowed to touch me. To clarify this, the touching of my arms and or shoulders is not inappropriate. The touches were fleeting.., the student concerned did not stroke my arms and did not make contact with me. She did weave her arms up and down and it may have looked from where the female teacher was standing as if she was stroking my arms but at no stage did she touch me.
…
I could only think of one occasion which was where I touched the daughter of a friend who had asked me to make sure her daughter was ok and kept warm after a performance...My friend's daughter was crying and I, out of concern for her welfare, put my hand on her shoulder, she told me what happened and I reassured her that everything was fine and not to worry. It was a simple caring gesture that any normal person would see no harm in doing.
The applicant also denied that the content of Departmental Charge 3, other than to state that he may have given the student at the athletics carnival a pat on the shoulder. The applicant submitted that:
For the record I did not say to this student "If she trained well she would have to kiss me on the cheek". This is totally wrong. She has stated that I told her this at the Athletics Carnival. This is also incorrect. I had a conversation with her during the bus trip to the carnival. What was said during this conversation was the following: "that I would miss her and some of the other Year 6 students and would love to coach a couple of them" as they were talented athletes and they were moving to High School… I firmly believe that she has not been able to hear me clearly due to the noise from the traffic outside of the bus along with the noise of the students inside the bus. When asked about what I had said she has obviously guessed at what I said.
In his evidence and submissions, the applicant expressed his dissatisfaction with the GREAT decision including the fact that the evidence of the relevant students was not tested by GREAT. He was also dissatisfied with the manner with his legal representative had represented him the matter and presented his case. He stated in his evidence that he would have appealed the decision but was unable to afford legal representation.
The applicant was in a position of authority and trust as a teacher of primary aged children and is alleged to have engaged in improper conduct towards young female students as well as wilfully disobeying a direction from the Director General not to touch students unless their safety was at risk. The Tribunal is satisfied that the matters that 'triggered' refusing the applicant a WWCC clearance (being the commencement of proceedings against the applicant in 1993 for indecent assaults against a girl aged 9 to 10 years and a finding of workplace misconduct) fall within the upper end of seriousness for such matters.
[2]
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred
A period of 21 to 25 years has elapsed since the alleged conduct the subject of the 1993 charges and the conduct the subject of the GREAT decision.
The applicant has engaged in some child-related employment since he was dismissed from the teaching profession including as a photographer's assistant, in a disco business, coaching with two athletics clubs and as a school bus driver.
The respondent submitted that during the time the applicant has continued to seek and obtain employment in child related areas, he has not sought any counselling or engaged in training or education concerning child safety.
[3]
(c) the age of the person at the time the offences or matters occurred
The applicant was aged 31 to 36 years at the time of the alleged conduct the subject of the 1993 charges and the conduct the subject of the GREAT decision.
[4]
(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
The alleged victims were all primary aged females aged over 9 years old. The applicant was in a relationship of authority, power and control with each victim in his capacity as a teacher, sport coach or carer. The Tribunal is satisfied there was an imbalance of power in the relationship between the applicant and the victims that made the victims inherently vulnerable.
[5]
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person
The applicant was 20 to 26 year older than each of the students the subject of the conduct giving rise to the various allegations. As stated above, the applicant was in a relationship of authority, power and control with each victim in his capacity as a teacher, sport coach or carer.
The applicant suggested at times in his evidence that he shared a 'friendship' with the students. The Tribunal rejects the characterisation of the relationship in this way given the imbalance of power in the relationship and the context within which the applicant knew the students.
[6]
(f) whether the person knew, or could reasonably have known, that the victim was a child
The applicant knew that each victim was a child.
[7]
(g) the person's present age
The applicant is currently 56 years of age.
[8]
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The applicant does not have criminal record. In his submissions, the applicant placed emphasis on the fact that he does not have a criminal record and that the most serious allegations against him (the 1993 charges) did not lead to criminal convictions.
The applicant was the subject of detailed findings by GREAT as to his improper conduct and disobedience in relation to the three Departmental charges. The applicant challenges the GREAT findings as being flawed: particularly on the basis that the evidence of the relevant students was not tested.
There was no evidence presented by the applicant that he has engaged in counselling, training or education about child safety since he was dismissed from teaching.
[9]
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The respondent made the following submission with respect to this consideration:
If the applicant were to repeat his conduct of touching students inappropriately that conduct would likely give rise to complaints and allegations and may give rise to criminal charges and/or disciplinary action.
The conduct complained of is very serious, being conduct which caused immense distress and discomfort to the applicant's students, many of whom experienced that distress and discomfort at school, which is a place where the students should have been able to feel safe and secure and where the students should have been able to feel safe and secure with their teachers.
If the applicant were to repeat the conduct complained of, students as young as primary school age would suffer serious emotional/and or psychological harm.
The school bus being an extension of the school environment and the applicant posing a real and appreciable risk of repeating his conduct which has been found to constitute improper conduct as a teacher, students would be at real and appreciable risk of suffering emotional and/or psychological harm.
The applicant denies that the conduct that led to the 1993 charges occurred and disputes the findings of fact in the GREAT decision. He relies upon the fact that 20 years has elapsed since the conduct that triggered the risk assessment and there have not been any allegations made against him about his conduct around children during this time.
The applicant in his evidence said that in hindsight, he would not have written the note he gave the female Year 6 student and if he was engaging with students again, he "now would do something less imposing" when he was congratulating students such as giving them a "high five" rather than patting them on the shoulder. He also stated under cross examination that if he had the opportunity to go back to teaching he
…wouldn't pat them on the back or congratulate them; would not get involved in certain things; I would not written notes. Female [teachers] could get away with everything. I would have to change my whole style to fit in with the perception of other people..I would have other people around and not do certain things.
The applicant tendered into evidence and relied upon a psychological assessment dated 5 June 2016 from clinical psychologist. The applicant was assessed under the Static 99 risk assessment tool as being in the Low range with a risk of offence between 3% and 6%. The clinical psychologist stated that the applicant had few dynamic risk factors and stated "perhaps the only specific dynamic risk factor was little awareness that what he did could have been perceived as having been in any way damaging. In combination, the above places [the applicant] in a generally low risk category".
The applicant requires a WCCC clearance so that he can drive a bus that would be at times transporting school children. The applicant stated in his evidence that if he was given a direction by his employer not to talk to children while driving them on his bus, he would comply with the direction. He also indicated that "kids like being on my bus because I am friendly" and "bus drivers don't have time to get out of their seat; there are cameras so anything I do could be video-ed".
[10]
(j) any information given by the applicant in, or in relation to, the application
As stated above, the applicant submitted significant written material in relation to his application and the Tribunal has taken it into account in making its decision. To the extent that the applicant relies upon some of that material as illustrating examples of how some teachers have physical contact with students and that he has been unfairly treated and singled out by the Department of Education, the Tribunal finds this material to be irrelevant to the matters before it for consideration.
[11]
(k) any other matters that the Children's Guardian considers necessary.
The Tribunal took into account the written submissions filed by the respondent as well as the oral submissions made on 31 August 2016.
[12]
Tribunal's consideration and determination
The Tribunal has carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons.
In addition to the written evidence and submissions that were before it, the Tribunal put weight on the applicant's evidence in chief and under cross examination. The Tribunal acknowledges that the applicant was not legally represented at the hearing. This does not explain, however, the lack of awareness, insight or reflection the applicant displayed as to how his conduct (to the extent that he agreed it occurred) could have been interpreted by or adversely impacted on the female students involved in the allegations. The applicant's concern was largely focussed on his feelings of persecution by the Department of Education; that his efforts as a teacher had been underappreciated; the loss of his teaching career; his disappointment that he was not adequately legally represented before GREAT and his distress that his past actions are relevant to his desire to work as a bus driver. This view is supported by the psychological assessment dated 5 June 2016 relied upon by the applicant where the clinical psychologist identifies a specific dynamic risk factor in the risk assessment as being the "little awareness" the applicant had into what he did being perceived "having been in any way damaging".
The applicant displayed a sense of indignation that some teachers (especially females) were able to touch students to comfort or congratulate them whereas his conduct had been unfairly misinterpreted. This was demonstrated by the applicant tendering into evidence photographs from publications of teachers touching students in ways that he alleges were more inappropriate than what he had done. It was only when pressed in cross examination as to what he would like to say to the students he agrees he had physical contact with, the applicant replied he would say "sorry if I upset you". Again, under cross examination, when asked what he would feel if he knew that he made the particular female students feel uncomfortable, he said that he would feel "very sorry for them as I wouldn't want anyone to feel uncomfortable. I do not prey on young people. They showed no sign of being uncomfortable". The applicant stated in his submissions, that the students who were the subject of his conduct may have subsequently displayed distress about what they said had occurred because they were lying. The applicant's evidence and demeanour suggested that he considered himself the victim in how his teaching career had ended.
The applicant submitted that the reason he does not display insight or remorse into the conduct alleged to have occurred in 1993 because he denies the conduct occurred. Furthermore, he submitted that with respect to the Departmental charges, some of the conduct alleged against him either did not occur or was misinterpreted.
The most insight the applicant displayed into his behaviour was in relation to the handwritten note he gave a female student. The applicant's regret over the incident, however, appeared to be focussed more on the foolishness of his actions and that he had been having personal difficulties at the time rather than any insight into the impact that receiving such a note from a teacher may have had on the Year 6 female student.
The applicant displayed a lack of insight into the imbalance of power that exists between a teacher and primary aged students and that it is not the responsibility of the child to show they do not welcome or are distressed or uncomfortable with the particular conduct of a teacher. The applicant only appeared to show some insight or remorse for his conduct when he was pressed in cross examination.
The applicant also failed to display insight into how the events from his past might influence his behaviour in the event he was able to drive buses that transport children. He suggested that children might approach him because he was friendly and that he would be under surveillance by CCTV cameras. He did not volunteer the characteristics or behaviour he would exhibit in order for his conduct not to be misinterpreted.
As outlined above, the primary issue for the Tribunal to determine is what the correct and preferable decision is having regards to the material before the Tribunal in relation to granting a WWCC clearance to the applicant. The jurisdiction of the Tribunal under section 27 is protective of children and not punitive of the applicant. There is no requirement for the applicant to show that the original decision maker's decision was wrong (Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88). There is also no onus on the applicant to show that he is not a risk to children.
The Tribunal is required to determine whether the applicant poses a "risk" to the safety of children. The Tribunal has to determine if "there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children" (Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]).
Applying the propositions recently summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406, the Tribunal should first consider if positive findings about the allegations can be made on the balance of probabilities or if the Tribunal rejects the allegations as "groundless" (at [14]).
The Tribunal is not satisfied there is enough evidence before it to reject the allegations contained in the 1993 charges or the Departmental charges as being "groundless". The 1993 charges may not have proceeded to trial but that does not result in the Tribunal being able to find there were groundless.
With respect to the conduct referred to in the 1993 charges, the Tribunal is not able to make a positive finding that the conduct occurred. It still needs to consider, however, questions of risk that may be indicated by all the facts given that it is not of the view that the allegations are groundless. In the overall context of the course of conduct alleged against the applicant, the Tribunal finds there is a "lingering doubt or suspicion" that the alleged conduct may have occurred. However, this is not fatal to the applicant's efforts to obtain a WWCC clearance: see Office of the Children's Guardian v CFW at [16].
With respect to the conduct alleged in the Departmental charges, the Tribunal takes into account that the applicant rejects some of the allegations contained in those charges. The applicant does admit, however, that he wrote and gave the note to the Year 6 female student; patted a student on the back at the netball game; patted a member of the dancing troupe on the shoulder and gave a congratulatory pat on the shoulder to a student at an athletics carnival. The applicant agrees the last two matters occurred after he had received a Direction from the Director General (though he disputes that all those actions contravened the wording of the Direction). The Tribunal makes a positive finding on the balance of probabilities that this conduct took place. As stated in Office of the Children's Guardian v CFW, such a finding "will generally have a 'decisive impact' on the outcome of the application" (at [14]).
With respect to the conduct alleged in the Departmental charges that the applicant denies, the Tribunal does not find these allegations to be groundless. Even if the Tribunal is unable to be satisfied that on the balance of probabilities that the relevant conduct occurred, the Tribunal "must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material" before it in determining if the applicant poses a real and appreciable risk to children (Office of the Children's Guardian v CFW at [17]).
The Tribunal is satisfied that the applicant does pose a risk to the safety of children. In addition to the conduct that it finds did occur on the balance of probabilities and the other allegations, the Tribunal was satisfied that there is a likelihood or possibility of similar events occurring given the lack of genuine insight the applicant displayed in his evidence as to his conduct towards his students being inappropriate despite receiving counselling about his conduct and being formally directed not to have physical contact with children unless their safety was at risk.
The Tribunal finds that on the balance of probabilities a repetition of the applicant's conduct that led to the risk assessment would cause serious emotional and/or psychological harm to students.
The Tribunal is satisfied that the applicant poses a real and appreciable risk to children that is greater than the risk any adult would pose. During his teaching career, the applicant was on notice that he needed to be vigilant as to his conduct around students as well as receiving a written direction not to have physical contact with students unless their safety was at risk. Despite this, the applicant had physical contact with students. The fact the applicant disputes that there was any intention or motivation behind this conduct other than wanting to support, congratulate or comfort students is irrelevant.
A considerable period of time (21 to 25 years) has elapsed since the alleged conduct the subject to the 1993 charges and the conduct the subject of the GREAT decision. The applicant does not appear during this time to have gained personal insight into the impact that his conduct had on the students. Furthermore, he has not sought any counselling or professional support that may have assisted him to gain that insight. Rather the applicant is more focussed on his concern of the impact that his dismissal from teaching has had on him during the intervening period.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30(1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.
[13]
Orders
The order of the Tribunal is that:
1. The decision of the Children's Guardian dated 20 November 2015 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2. The application for review of the decision of the Children's Guardian filed 18 December 2015 is otherwise refused and dismissed.
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
[14]
Amendments
10 November 2016 - Removed details from [36]
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: 10 November 2016
Parties
Applicant/Plaintiff:
CJI
Respondent/Defendant:
Children's Guardian
Legislation Cited (7)
whether the applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 NSW) Child Protection (Working with Children) Act 2012(NSW)
The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The Act states:
The object of this Act is to protect children:
1. by not permitting certain persons to engage in child-related work; and
2. by requiring persons engaged in child related work to having working with children check clearances.
Section 4 of the Act provides that the 'safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
It follows that 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 a person who is refused a WWCC clearance but to eliminate possible risks to the safety of children.
'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning.
Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both.
'Child related work' includes transport services especially for children, including school bus services (section 6(2)(l) of the Act).
The Act contains a similar prohibition on an employer, employing or continuing to employ a person in 'child related work' where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant WWCC clearance or there is no current application by the person for such a clearance.
Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).
Risk to children
The test to be applied by the Tribunal in considering the application, is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:
One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…
In M v M (1988) 166 CLR 69, the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. The two propositions have been recently summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14] to [17] as follows:
The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application.
The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
"… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare."
Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].
A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.
Onus and standard of proof
Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. The standard of proof applied is the civil standard, that is, the balance of probabilities.