CMD v Children's Guardian

Relevant Law

1. On 28 September 2015 the Child Protection Legislation Amendment Act 2015 ("the Amendment Act"), which in Schedule 2 sets out amendments to the Act, was assented to. It provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because the application for a clearance was made in 2013 before any of the amendments applied.
2. Accordingly the relevant parts of the Act applied as before the Amendment Act amendments and the following discussion proceeds on that basis.
3. Section 4 of the Act provides: "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."
4. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act.
5. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar".
6. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
7. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
8. Section 12 provides that there are two classes of Working with Children Check Clearances which are: 1. Volunteer - authorising workers to engage in unpaid child-related work; and 2. Non-volunteer - authorising workers to engage in paid and unpaid child-related work.
9. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
10. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". Section 4 defines "conviction" as including a finding that the charge for an offence is proved, even though there is no conviction.
11. The Act defines an "adult" as "a person who is 18 years of age or older".
12. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. The Children's Guardian asserts that the trigger for an assessment falls within clause 1.1(b) of schedule 1, which provides: "for an offence specified in clause 1 of schedule 2, if the offence was committed as an adult, and the person is not, because of those proceedings, a disqualified person".
13. The offences of indecent assault of a person under 16 years of age and procure a child for unlawful sexual activity are within the list of offences specified in clause 1 of schedule 2.
14. The Children's Guardian described the trigger matters in its letter of 25 February 2016 as follows: Your trigger records pertain to indecent assault and procure child for unlawful sexual activity from 2012 to 2013 occurring over a period of approximately 7 months. At the time, the complainant was 14 years of age. Your alleged conduct included messaging the child, attempting to kiss the child, taking the child's shirt and bra off, and touching the child's breasts. The offences allegedly occurred at both your home residence and church where the complainant was being tutored. Although the charges were dismissed, not guilty after hearing and a criminal court was not satisfied beyond reasonable doubt the conduct occurred, the jurisdiction of the. Office of the Children's Guardian is protective in that the paramount consideration is the safety of children, The Children's Guardian does not make decisions relating to guilt. The Children's Guardian makes decisions relating to risk. The nature of the criminal proceedings commenced mean there remains the existence of a risk that has not been dispensed. Furthermore, sexual harm was substantiated by JIRT as the child had made clear disclosures in relation to the allegations. The matter is considered serious as the charges relate to sex offences involving a. child. You were also in a position of trust and authority; having been-the school maths teacher-. Further, you also held the trust of the complainant's parents and it is reported that you had made an arrangement with the child's parents to tutor the child outside of school.
15. The Children's Guardian undertook an assessment.
16. Under Section 16 the Children's Guardian may request further information from an applicant for a clearance related to an offence or other matter related to the application or clearance and may terminate an application if an applicant, without reasonable excuse, fails to provide such further information within 6 months of the request.
17. The Children's guardian requested CMD to provide further information, which CMD provided.
18. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children's Guardian may apply to this Tribunal for a review of the decision of the Children's Guardian. Subsection 27(4) of the Act provides: "An applicant must fully disclose to the Tribunal any matters relevant to the application."
19. Subsection 30(1) of the Act applies to reviews. It provides: 1. The Tribunal must consider the following in determining an application under this Part: 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 CMD in, or in relation to, the application, 11. any other matters that the Commission considers necessary.
20. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63 Determination of administrative review by Tribunal 1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law. 1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 2. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: 1. to affirm the administratively reviewable decision, or 2. to vary the administratively reviewable decision, or 3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. A literal interpretation of "a risk assessment … to determine whether CMD ….poses a risk to the safety of children", is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.
2. In Commission For Children and Young People v V [2002] NSWSC 949 Young CJ in Eq was considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section (at [41]-[42]): "[O]ne must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". "[O]ne does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, 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 'risk' with the words that follow, namely, 'to the safety of children'.
3. In Office of the Children's Guardian v CFW [2016] NSWSC 1406 Harrison J, in discussing the role of the Tribunal in matters such as this, held: (14) 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. (15) 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." (16) 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]. (17) 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. An Applicant must fully disclose to the Tribunal any matters relevant to the application: s. 27(4).
4. In determining an application for review, the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s. 63(1), Administrative Decisions Review Act 1997).
5. Neither party bears an onus in an application for review under s. 27 of the Act. BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CSR 1 at [39]-[40]. The Tribunal has previously held that in an application under s. 27 a clearance may not be granted subject to conditions: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65; CDX v Children's Guardian [2016] NSWCATAD 17 at [36]
6. It is important to note that the scheme of the Act is protective and not punitive (Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]).

Seriousness of the matters that caused a refusal of a clearance

1. The matters relied upon by the respondent were allegations of 2 assaults, an indecent assault, and procurement of a child for unlawful sexual activity alleged to have occurred over a period of about 7 months. Child M was the alleged victim.
2. Child M sent a letter to one of her teachers at the K Christian School, Teacher A. She received the letter from child M on 17 September 2014 and reported it to her superiors at the school on 18 September 2014. The police were notified and detectives attended the school.
3. The letter to the teacher stated: "I'm sorry I'm not there right now…. I tried to do my assignment but I couldn't deal with everything. I'm going to tell you the truth because you are one of the closest teachers I have, and I trust you a lot. The truth is, I have been both physically and sexually assaulted for the past few years. Today is the day where I can't handle everything. I'm sorry, please don't tell. I feel so broken and lost sometimes …. Please forgive me. I will give my project on Wednesday / Thursday. Like you teach us in Christian studies, I tried to forgive those people…. but I can't. It's so hard".
4. When Teacher A reported the matter to the Deputy Principal, child M was seen by the Deputy Principal and reported to her that CMD had "assaulted" her.
5. Child M was interviewed on 26 September 2014 by members of a JIRT team. Her parents were present and the interview was electronically recorded.
6. The summary of her interview contained in the records of the Department of Family & Community Services states: In 2012, [child M] was in year 8. In the latter half of 2012 [child M] and another school friend were helping [CMD] clean his classroom. During this time [child M] sustained a graze and bruise to her leg by hitting it on furniture. [CMD] said to have felt bad for [child M] sustaining her injury that he "wanted to make it up to her", [CMD] had a conversation with the [child M]'s mother telling her of the injury sustained to [Child M] in the classroom. [CMD] offered to tutor [child M] after school. After much discussion, [child M]'s mother allowed [CMD] to tutor [child M] at their family church. The tutoring commenced a short time after. In June 2013, whilst the school was still in term, [CMD] attended the home residence of [child M] at [address] after school in his small black motor vehicle and collected her for tutoring for the half yearly exams. At this time [child M]'s mother was home. This tutoring session occured at the home residence of [CMD] [address of CMD]. This was the first time [CMD] collected [child M] from her home residence and conveyed her to his home residence. [Child M] entered [CMD]'s motor vehicle and sat in the front passenger seat. As they drove away from [child M]'s house, he told [child M] to lay down, [child M] laid her seat back and laid down. [CMD] explained to [child M] that he wanted her to be hidden as they were driving through an area with lots of school people. Upon arrival at [CMD]'s residence, he led [child M] into the lounge room and she noticed there was no one else at the residence. [child M] removed her text books from her bag and commenced studying. [CMD] was sitting in the lounge room next to [child M], they were studying and talking. [child M] stated she did not like her body because she feels like she is overweight. [CMD] rubbed the side of her torso and said 'You're good don't worry", [CMD] stated he was going for a shower as this day was rather hot. [child M] continued studying whilst [CMD] was in the shower. When [CMD] finished his shower he walked into the lounge room wearing a t-shirt and beige shorts and instructed [child M] to have a shower. [child M] was reluctant to do so but because he was an adult she listened to what he said. [CMD] escorted [child M] into the bathroom. [child M] closed the door and began showering [child M] was in the shower for a short period of time before [CMD] said from the outside of the bathroom knocking on the door "You're taking too long. If you don't hurry up I will come in". [child M] said "No". [Child M] explained that she barely had the shower running when [CMD] was telling her to hurry up. [Child M] was scared and wiped down her body with a towel and quickly got dressed in her uniform. When [child M] exited the bathroom [CMD] was sitting on the lounge in the lounge room. [Child M] walked into the lounge room and sat beside [CMD], who was on his laptop and she began studying. [CMD] asked [child M] for a massage which [Child M] agreed to. [Child M] massaged his shoulders on top of his clothes for a short time before returning to her studies. This made [child M] feel uncomfortable. [CMD] said for [child M] to have a break. [CMD] instructed [child M] to lay down on the floor, which she did. [CMD] also laid on the floor. [CMD] asked [child M] to move closer to him however she refused. [CMD] asked [child M] to move closer to him several times but [Child M] refused on each occasion. After a period of time, [CMD] got up and said he needed to make food for his son who was at childcare. [CMD] and [child M] went into the kitchen to make food for his son. [CMD] instructed [child M] to sit on the kitchen bench, which she did. [CMD] then hugged [child M] however she did not respond. [CMD] then told [child M] to hug him, which she reluctantly did because she felt forced. [CMD] hugged [child M] and a few more times in the kitchen. [CMD] put food into the container and they left his residence and collected his son from childcare. When [CMD] picked up his son from childcare, [child M] sat in the back seat of the car feeding [CMD]'s son, [CMD] complemented [child M] on how good she was with is son. [CMD]'s mobile phone rang and it was his wife. [CMD] told [child M] to be quiet. [CMD] had a conversation with his wife on the phone. [CMD] dropped [child M] back at her home. Approximately 1- 2 weeks later, in the last week of the July school holidays, [child M] remembers this being a weekday, possibly Wednesday 10 July 2013, [CMD] contacted [child M]'s mother and asked whether he would be able to tutor [child M] on this day. [CMD] told [child M]'s mother they would be studying at a park with other students. [child M]'s mother agreed. About 2:00pm [CMD] attended the home residence of [child M] in his small black 4 door car, possibly a Toyota and collected her. [child M] was wearing a green t-shirt and jeans. [Child M] entered the front passenger seat of [CMD]'s vehicle, [CMD] turned on the air conditioner as it was a hot day. [CMD] said "maybe we should go to the beach and study there". [CMD] instructed [child M] to lay her seat back and stated that she needed to lay down because he wanted her to be hidden as they were driving through an area with lots of school people. When they arrived at [CMD]'s residence, he made a comment about the mess of his house / yard due to weeds. Once entering the residence [child M] realized that no-one else was home. [CMD] escorted [child M] into the lounge room where she commenced studying. About 10 minutes later [CMD] complained of a sore back and asked [child M] for a massage. [child M] agreed. [CMD] laid face down on the lounge room floor fully clothed. [child M] was sitting beside [CMD] massaging him. After a moment [CMD] told [child M] that her massaging was uneven and instructed her to sit on his lower back / bottom with her legs on either side of his hips, in a straddling position. [child M] reluctantly did this and continued to massage for a short period. After [CMD]'s massage was complete, he said "now it's your turn". [CMD] laid [child M] on the floor face down. [CMD] straddled [child M] and began massaging her back on top of her clothes. [CMD] massaged her shoulders, went down to her bra and lifted up the bottom of her shirt. [CMD] Instructed [child M] to remove her shirt which she did. [CMD] continued massaging [child M] on her back and asked whether he could remove her bra. [child M] did not say anything. [CMD] then unclipped her bra leaving her back exposed. This action made [child M] feel violated. [CMD] said whilst massaging [child M]'s back and the side of her breasts "You don't know what I could possibly do to you". After this comment, [CMD] left the room. [child M] quickly got up and got dressed. [CMD] walked back into the lounge room and sat down next to [child M] and put his hands up to his face to hold his head. [Child M] knew [CMD] felt he did something wrong. [CMD] apologised and said "you don't know what I could have done to you", [CMD] tried to kiss [child M]. [child M] told him to stop and said "No I don't want to". [CMD] said "Why don't you want it" he learned forward and attempted to kiss [child M] but she moved her head backwards, [CMD] said "Don't you want it?" [child M] said "No". About 3:00pm, [CMD] and [child M] left the house and picked his son up from childcare. [Child M] was in the backseat of [CMD]'s motor vehicle feeding his son. [CMD] kept saying I'm sorry. I'm sorry for what I have done". [Child M] states [CMD] kept apologising. [CMD] dropped [child M] back to her home. When they arrived [CMD] got out of the car and had a conversation [child M]'s parents. At no time did [child M] tell her parents about either incident occurring, however after this incident [CMD] ceased tutoring [child M]. When school returned the following week, [CMD] also had a conversation with [child M] apologizing for what he had done and told her not to tell another otherwise he would get into a lot of trouble. [Child M] said she wouldn't tell anyone. She did not want him to get into trouble and she didn't want people to talk. Early 2014, [child M] disclosed these incidents to her school friend. On 14/10/14, [DOCS Officer] made phone contract with the POI [CMD]. [CMD] declined to speak with Community Services until he sought legal advice from his solicitor. On the following day 15/10/14, [CMD] made telephone contact with [DOCS Officer] and advised, based on legal advice, he would not speak with Community Services in relation to the allegations. [CMD] was subsequently informed that he would be listed as a PCH on the CS database. There is sufficient evidence for this matter to be substantiated.
7. During the interview [child M] drew a plan of the layout of the interior of [CMD]'s home including plans of the layout of the kitchen and living room and bathroom.
8. As a result of the complaints made by child M, the police applied for an Apprehended Violence Order restricting the contact of CMD for the purpose of protecting child M.
9. The criminal charges were made by the police against CMD were 2 of common assault, one of indecent assault in respect of the allegation that he massaged her back, took off her bra, and touched her on the breasts; one for conduct alleged to be to procure child for unlawful sexual activity.
10. These charges were laid on 14 October 2014 and as a consequence of the charges, CMD's employment with the K Christian School was terminated.
11. The criminal proceedings against CMD were heard at Liverpool Local Court in October 2015, and on 9 October 2015 the Magistrate dismissed all the charges at the end of the prosecution case on the basis that the prosecution case would not prove any of the charges beyond reasonable doubt.

The period of time since the matters occurred and the conduct of the person since they occurred

1. It is 3 ½ years since the matters are alleged to have occurred.
2. For the last 2 ½ years CMD has not been working with children. Initially when the allegations were raised with the school, he was suspended, but subsequently when he was charged by the Police his employment was terminated.
3. There is no report of any criminal act or other problem behaviour by CMD since September 2013, when the matters were alleged to have occurred.

The age of the person at the time the matters occurred

1. CMD was 39 years of age.

The age of each victim at the time of the alleged conduct and any matters relating to the vulnerability of victim

1. At the time of the alleged conduct, child M was 15 years of age. She had turned 15 in the previous month.
2. She was a pupil in the school in which CMD taught. He had taught her mathematics for at least 1 year previously and had commenced tutoring her 1 month or so before it is alleged the conduct occurred.
3. Child M was particularly vulnerable because of her age, the fact that CMD had been her teacher and was still a teacher at her school, and the fact that CMD had been authorised to have child M in his care for the purposes of tutoring.
4. In the circumstances where the subject conduct is alleged to have occurred, child M was particularly vulnerable because it was not a public place, and there was no other person present.

Difference in age between the victim and the person, and the relationship between the victim and the person

1. CMD had been child M's Maths teacher, and at the time of the alleged matters was her Maths tutor. It was alleged that the matters occurred in CMD's home when there were no other persons present. The difference in age was that CMD was 24 years older than child M. This is a significant difference and involves significantly more life experience and knowledge on the part of CMD than the child had. CMD had been trusted to take child M in his car for tutoring.

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

1. CMD knew the victim was a child.

The person's present age

1. CMD is now 43 years of age

Seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The criminal charges raised as a result of the complaints of child M were dismissed. CMD has no criminal conviction. There is no evidence of CMD committing any other criminal offence. That accords with various character references that he relied upon.
2. There is no evidence of any problematic conduct since September 2013, when the matters were alleged to have occurred.

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

1. The impact on a child of offences such as those alleged and the long term are very serious. It may involve long term trauma, depression and distrust of people. It may prevent or impede the victim forming intimate relationships. It could lead to emotional and psychological disturbance and even suicidal thoughts or suicidal conduct.
2. CMD has provided no psychological or psychiatric assessment of himself or of the likelihood of him committing such offences in the future.

Any information given by CMD in or in relation to the application

1. In his statement of November 2015, CMD stated that he has worked with children "extensively over a period of close to 20 years". He said that "in addition as a youth pastor, I have been heavily involved with my church's youth group (approximately 150 young people) for over 15 years….".
2. He also said that prior to Child M's allegations; he had never "had any complaint from any of my students at [K Christian School], or children under my care at my youth group".
3. CMD relies upon 3 Character references. One is by a registered nurse who has known him since 2000 through their church, from 2004 was a youth leader "under his guidance" and is close to him and his family. Another is by a 24 year old former student of CMD who was tutored by him when she was in year 12, and knows him through their church. And the other is by a pastor who is Vice President of his church. The references are positive, but only the nurse purports to have any detailed knowledge of the allegations raised by child M. She says she has read the Police Facts document. None of the referees has any disclosed expertise in the area of psychology or psychiatry or some other field of assessing people as regards their propensity to abuse children or their likelihood of reoffending.
4. There are also references provided by CMD provided to the children's Guardian. One is by the principal of the K Christian School, who is also a minister of his church. It is a glowing reference portraying him as a model teacher, employee and youth worker. He says that the police charges were "thrown out of court". Another is by the nurse referred to earlier, and there is a statutory declaration by a Minister of Religion who has known CMD for more than 10 years. Again these are very positive references. Again none of the referees has professed to have read any document detailing any of the complaints by child M and none of them has disclosed any relevant expertise in identifying adult child abusers or assessing the likelihood of a particular offender reoffending.

Any other matters the Children's Guardian considers necessary

1. The material relied upon by the Children's guardian is extensive and includes the following evidence:
2. Child M, then aged 16, alleged that she had been assaulted physically and sexually in a letter to one of her teachers, Teacher A, written on 15 September 2014. She did not identify the alleged perpetrator in that letter, but did identify CMD in a meeting with the Deputy Principal subsequently that day.
3. She had already made disclosures to 4 of her school friends previously generally relating to some of the conduct which is the subject of these proceedings.
4. Over the next 2 years until the conclusion of the criminal trial in October 2016, Child M had interviews with the Deputy Principal of the school, 2 electronically recorded interviews with police, a lengthy recorded interview with the Joint Investigation Response Team, and, no doubt, questions by family members, fellow students, relatives and others.
5. Then at the criminal trial against CMD in October 2015, she was in the witness box for the best part of 2 days (6 & 8 October) and her cross-examination was extensive.
6. At the end of the Crown case, the Magistrate held that there was a prima facie case, but the evidence for the prosecution could not establish any of the charges beyond a reasonable doubt, and all the charges were dismissed.
7. The Magistrate in his reasons found that Child M's statements of what happened, including her evidence at the trial, was seriously flawed with vagueness, inconsistencies, and falsities.
8. Obviously the fact that Child M's recollection of events more than 2 years prior, at a time when she was only 15 years of age, the extensive range of the allegations and disclosures she had made, and the numerous and lengthy interviews she had experienced could have contributed to that.
9. The Magistrate found that her evidence was not sufficiently reliable to establish that an AVO should be made, and he dismissed that application.
10. By comparison, though, CMD had a different experience and different exposure in terms of giving evidence. He declined to be interviewed by police or make a statement. He declined to be interviewed by the Officers of the Department of Family & Community Services. He declined to be interviewed by the JIRT team. He was not required to give evidence at his criminal trial, and he was not cross-examined in those proceedings.
11. The school requested answers by CMD to about a page of questions arising mainly from Child M's allegations. He denied any allegation. He denied knowingly breaching the school Staff Code of Conduct by not giving the principal the required notice that he was going to tutor students outside the school.
12. He provided the Children's Guardian with a 4 page statutory declaration dated 15 November 2015. That responded to the allegations made by [Child M] against him and said "they are entirely fabricated and unfounded". At all times I maintained my innocence, and on 9 October 2015 I was found not guilty of all charges". He referred elsewhere to having "been found innocent". He appears to not understand the difference between civil and criminal onus of proof.
13. The remainder of the document is about his working history and his belief that the decision of the Children's Guardian to refuse him a clearance is wrong.
14. The hearing of these proceedings occurred on 10 & 11 October 2016. It was not until 7 October 2016 (3 days before the hearing) that CMD filed a 9 page substantive affidavit addressing the allegations. The document had been sworn on 15 June 2016, nearly 4 months before.
15. CMD then gave some oral evidence-in-chief at the hearing and then was cross-examined for less than 3 hours.
16. CMD's case does not include any evidence of an expert in psychology or psychiatry.
17. CMD alleges that he took child M to his home on the 4th and 5th tutoring occasions and no adult or child other than his infant son was present. He did not have or ask for the consent of either of her parents.
18. CMD in oral evidence said he stopped tutoring because he considered child M to be "needy" and he was too busy. He conceded that he had previously said that he had stopped the tutoring because she was already well prepared for the exam. But it is possible that he stopped the tutoring because of conduct by him that she later alleged occurred on the 4th and 5th Tutoring occasions.
19. The Staff Code of Conduct includes a requirement: "Teachers should inform the principal of any outside tutoring of students enrolled in the school".
20. CMD's evidence is that he was not aware of that requirement. The Staff Code of Conduct also has a prohibition on staff being "involved in acts of physical contact …. towards children". CMD's evidence in his affidavit is that on the 3rd occasion of tutoring, he told the child that he was tired. He said that she then attempted to massage his shoulders. He said "I immediately manoeuvred myself from Child M…" and then he told her he was going to the toilet and did so.
21. CMD did not report that alleged conduct of child M to her parents or to the school. Nor did he record what had happened. Nor did he warn her that it was inappropriate and should not occur. In his affidavit filed 3 days before this hearing he said that when on the 3rdth occasion child M tried to massage his shoulders he "did not think much about it at that time, and I did not think there was anything too out of the ordinary about what had occurred".
22. He said "I did not encourage it in any way. I did not think about it being so inappropriate that it warranted me saying something to her mother or cease the tutoring. Furthermore, I did not interpret [child M's] attempt to massage my shoulders in any sexual or indecent way. She had just mentioned that she massaged her father's back and shoulders when he was tired, and that's how I interpreted it". "Of course, in hindsight, and particularly having regard to what's occurred since, I should have ended our tutoring sessions".
23. At the time CMD had more than 10 years' experience as a school teacher and he was aware of the prohibition of physical contact with students in the Staff Code of Conduct. But he didn't recognise the conduct as problematic. He didn't inform either of the parents. He didn't inform the school. He didn't seriously caution the child. He didn't cease tutoring child M.
24. His responses to questions about why he did not say no to the child, he did not tell her that such conduct should not occur, and he did not take steps to ensure that professional boundaries were maintained between her and himself, were inadequate and not credible. In cross-examination he said that if in gym activities a student grabbed him from behind he would "move off". When asked if he would tell the student the conduct was inappropriate, he said he would. But he conceded he did not tell child M her conduct in attempting to give him a massage was inappropriate.
25. He appeared to think that because the school community involved friendships between staff and parents, that was an excuse for him not to do what otherwise would have been perceived as appropriate to maintain professional boundaries. The complaints of Child M about his conduct on the 4th and 5th tutoring occasions include allegations about massaging each other.
26. It appears that even in October 2016, 2 years after the allegations were first raised with the school and he was suspended, and 18 months after his criminal trial, he does not have a good understanding of what is involved in professional boundaries for teachers and the reasons for them.
27. The Magistrate found there was a prima facie case at the end of the prosecution evidence. The Department of Family & Community Services upon their investigation had found that some of the allegations were "substantiated". The JIRT team investigation was concluded without any interview or statement by CMD. The team found that some of the allegations by child M were substantiated. These are matters relevant to whether CMD presents a risk.
28. Section 27 of the Act applies to a review of this matter. Sub-section 27(4) of the Act provides: "An applicant must fully disclose to the Tribunal any matters relevant to the application".
29. The Tribunal considers that given the extent of the allegations and the seriousness of them, CMD has not fully complied with the sub-section in that his 9 page affidavit was very late and provided very limited disclosures, and explanations.

Breach of professional boundaries

1. There are the following matters raised by the evidence in the Children's Guardian's case: 1. His offer of providing free tutoring following what had been a very minor mishap in which the complainant sustained a small graze and / or bruise; 2. He persisted in offering to provide tutoring notwithstanding the resistance of Child M's mother; 3. He claimed Ignorance and breach of the school policy regarding private tutoring; 4. His breach of the school policy (of which he was aware) regarding physical contact with a student; 5. His failure to report to the child's parents her attempt to massage him; 6. He transported a student in a private vehicle without any other person except his preschool aged child present; 7. He took the student to his home without obtaining the permission of either of her parents; 8. Having the student in his home with no other person present; 9. In his affidavit of 7 October 2016 he said that he had been teaching with the school for more than 10 years and had privately tutored numerous students but he "didn't realise or appreciate that I was breaking school policy by not informing the principal"; 10. 25/09/14 - CMD missed call to child M's mother on her mobile. 26/09/14 - text message from CMD to child M's mother saying "sorry I cannot tutor today". 11. The Department of Family & Community Services recorded in its "contact record". Police informed the Department that CMD had been removed from duties at the school. It was also recorded in the police call: "however, the teacher was informed that he had been accused of being inappropriate to a student and he appeared to know who it was and he said that he had stopped meeting with her as he 'felt it was getting inappropriate', and he said his wife would be devastated'. The teacher said [child M] said to him that someone else had abused her and he felt she was only saying this and he had not reported this. The teacher said he stopped contact 1 month or so ago, and that Child M had sent a letter to him this week, and he said he had destroyed it. The letter said that [child M] needed to speak with him". There was no evidence offered by CMD raising or addressing this allegation of the child alleging someone else had abused her. The issue was not raised in these proceedings by or on behalf of CMD, nor did he offer any further detail. It appears that such allegation was not raised in the cross examination of child M in the criminal proceedings. It does not appear that CMD raised it anywhere other than to the source who gave the information to the Department. 1. In reply to a letter from the school requesting answers, CMD wrote a letter on 7 June 2016 and alleged that he took child M in his car "with the knowledge of her mother". But in her evidence child M's mother denied she consented to the child being taken to his home. The evidence is that he informed the mother that they would do the tutoring "in a park or somewhere". He did not tell her that he was taking the child to his home. 2. On 18 September 2014 there was an interview of CMD with the Deputy Principal of the school recorded as: Deputy Principal: Sorry to get you out of class in that manner [CMD]. I have received a formal complaint against you from a student [child M] in Year 10. She is saying you were her tutor and that you have been inappropriate to her in relation to sexual misconduct. CMD: I did tutor her, but I stopped it because she was needy and wanted to talk about her issues with her mother all the time. 1. On 19/09/2014 - Further interview - Deputy Principal, Principal, applicant and 1 other. The Deputy Principal informed CMD that they were there to check "that you are OK, to make you aware that we can help you seek counselling if you need this, and to provide you with a letter that outlines that you will be put on paid leave from school till further notice". 2. CMD was provided with the letter. It was read through and he signed it. The Deputy Principal asked him: 3. "is there anything you would like to say or make us aware of?" CMD responded: "no, I really don't have anything to say". 4. 08/04/2015 - Deputy Principal made a written statement for the police. In that statement she testified regarding the removal of CMD from his classroom when she became aware of the allegations. She testified in that statement: "[CMD] asked me which student I was referring to and I told him [child M] and he would be having no contact with her. He said something like 'I don't even tutor her any more, she was too needy'. [CMD] informed me that she had written a letter to him saying how bad her home life was. I asked [CMD] to produce the letter. Still to this day I have not received this letter. I asked him why he did not make us aware that he was tutoring Child M as it was part of the policy and he just apologised. He did not suggest that he was unaware of the policy". In items 13 to 15 CMD did not raise any denial of any misconduct by him with child M.
2. Child M alleged that subsequent to the last tutoring occasion, in the week when school resumed after the September vacation period, CMD came to a classroom where she was being taught and asked to see her. She alleged she was taken out of the class and he spoke with her privately, apologising for what he had done and told her not to tell anyone else, otherwise he would "get into a lot of trouble". The teacher of the class has no recollection of such an incident, but is unable to say that it didn't occur.
3. CMD in his statutory declaration of 24 November 2015 provided to the Children's Guardian in support of his application for a clearance, did not deny or refer to that allegation. Nor did he do so in his affidavit dated 16 June 2015 filed in these proceedings. Nor did he do so in his oral evidence.
4. There needs to be some further context acknowledged.
5. It was about December 2012 when Child M, while assisting CMD move books at the school, suffered a bruise of her thigh when a table holding books collapsed. Subsequently, CMD approached Child M's mother and offered to give free mathematics tutoring to Child M. Child M was present when he made this proposal.
6. CMD had been teaching at the school for about 10 years.
7. Child M's mother said that the bruise was "not a problem" and "will disappear". She said "it's not a major thing". But CMD persisted and said he wanted to coach Child M in mathematics. The mother then agreed.
8. The mother suggested that the coaching occur in the school library. CMD rejected that. She testified "he said that maybe some other kid will approach him the same and he doesn't want to do it".
9. Although he had been teaching at the school for about 10 years, CMD's evidence is that he was unaware that the staff Code of Conduct required a teacher to inform the principal of any outside tutoring. He did not inform the principal in relation to any of the children he tutored, including child M and her brother.
10. When CMD rejected the school library as a venue, child M's mother suggested the [Local] Public Library. But CMD rejected that option for the same reasons.
11. Eventually the mother proposed that the tutoring occur at her church. She had keys to the church. It was about 2 - 3 km from the home of child M's family and about 8 - 9 km from the school.
12. Then in about August 2013, child M's mother spoke with CMD and elected to take up his offer for tutoring for child M.
13. The first 3 occasions of tutoring occurred at the church of the mother and she drove the child to the church and used her keys for them to have access to tutoring in the church. She collected child M from the church at the end of the tutoring.

Different Versions of the 4th and 5th Tutoring Occasions.

1. On the 4th occasion, child M's mother was not available to transport child M to and from the church for tutoring as she had the care of a nephew child. Child M's mother agreed to the tutoring occurring in a park close to the day-care centre where CMD's son attended and agreed to CMD driving child M to the tutoring and then driving her home to the family home.
2. Regarding the 4th and 5th tutoring occasions, there are significant differences between the version of child M and the version of CMD.

4th Tutoring Occasion - Child M's Version

1. Child M says that this occasion occurred "possibly just before the school holidays". She said she was wearing her school sport's uniform so she thought it was a Tuesday or a Friday.
2. She says that she went home after school and that CMD collected her in his car from there. Her evidence is that when her mother asked where they would be doing the tutoring, CMD told her that "they would go to a park".
3. There is no evidence that at any time CMD obtained or sought the permission of child M's mother or father to take her to his home or told either of them that he planned to take her there.
4. Child M's version is that it was only when she was in the car and they were driving that she was told by CMD that they were going to have the tutoring at his home. Her evidence is that they drove directly there, and that CMD's son was not in attendance with them at the home.
5. Her evidence is that CMD's son was not collected until after they had been at CMD's home. She said they first drove directly from her home to his home.
6. Child M alleged that at his home on that occasion CMD touched her on the torso, she massaged him on the shoulders and neck, his shirt came off, he had her massaging him, he had a shower and he directed her to have one (which she did). He hugged her from behind.
7. After they left his home they collected his son from day care and then drove to child M's home.

4th Tutoring Occasion - CMD's Version

1. CMD says that the 4th tutoring occasion occurred on a Tuesday in mid-September. A staff meeting after school that afternoon had been cancelled. The School vacation was from 20 to 30 September. So the remaining Tuesdays in September are September 3, 10 and 17. The only remaining Tuesday in "mid-September" is Tuesday 17 September 2013.
2. He says he was aware that the Staff Code of Conduct prohibited staff from having physical contact with students. His evidence is that on the third tutoring occasion, which was in the church of child M's family, he had told her he was tired because of the large amount of marking of assignments and test papers he was doing while tutoring her. Child M said that she massaged her father when he was tired, offered to give CMD a massage and approached him and attempted to massage his shoulders. He says he "manoeuvred" himself away from her and said he had to go to the toilet, which he then did. He then continued the tutoring. He did not speak to the child about what he perceived as the inappropriateness of her conduct. He did not report this conduct to either of her parents.
3. CMD says in his affidavit of 7 October 2016 that on the 4th occasion he collected child M after school hours and took the child to the park about 1 minute from his son's day-care, where the son was attending that day. They had about 45 minutes only for the tutoring, which occurred in the park. CMD testified that it is a 15 - 20 minute drive from child M's home to the park. In answer to questions from a panel member he said he knew by 2.00pm of the cancellation of the staff meeting and he met child M and her mother and left at about 3.15 pm to drive to the park. If he collected Child M at about 3.15pm drove for 15 minutes to the park and spent 45 minutes tutoring, then he would be free to go to collect his son by 4.15pm. His evidence is that the day care his son attends is 1 minute from the park.
4. He said he collected his son from day care after the tutoring in the park and they went to his home on the way to return child M to her home.
5. In oral evidence on 10 October 2015 CMD said he had to collect his son that day from childcare and he "asked if [child M] could be dropped off at the park that day" but child M's mother, because of other commitments could not do this, so he collected child M. His evidence in his affidavit is that they had a limited time for tutoring as he had to collect his son from day-care and the tutoring lasted only about 45 minutes.
6. He said in oral evidence that because he had to collect his son early from the day-care, they could only spend 45 minutes on the tutoring.
7. He did not give in his documents any explanation about why he had to collect his son early from day care. He did, in his oral evidence, testify that on that 4th occasion he had "arranged to pick up my son at 3.30pm at the end of child care". He did not give a reason. There seems to be inconsistency in his evidence that he picked up the child "early" and that he collected him "at the end of child care". There is also evidence in the records of the child care facility that the child care service was open till at least 4.30 pm and often his child was not collected till after 4.30.
8. It is inconsistent with his other evidence, that he could have completed the tutoring and been free to collect his son before 4.15pm.
9. CMD's evidence is that when he collected his son the child was crying and he believed it was because the child was hungry. So instead of proceeding to deliver child M to her home, he went to his home to get food for his son. But if he had collected the child at 3.30 pm it would not be likely that the child would be hungry, assuming that he had lunch at day care. And according to the day care records he often was not collected till 4.30pm or later.
10. He said that after he collected his son from the day-care, he drove with his son in the child seat in the rear and child M sitting in the rear beside the son.
11. He said that when he arrived at his home he told child M to stay in the car and he went into the house. He said he was in the house for not more than 5 minutes. He said he was in the house for "a very short time" when child M came into the house. His son was still in the car and alone. In his affidavit he said he "quickly got some snacks and drinks and returned to the car".
12. In his oral evidence CMD testified that on the 4th occasion when child M left his son alone in the parked car and came into the home, he did not ask her to go back out to the car and mind the child. He did not go to check the child himself. He did not go to bring the child inside with them. He left the child alone in the car. This appears to be a very unlikely response of a parent.
13. Then, with his son in the car, he drove Child M back to her home.
14. The childcare records of the day-care centre show that he collected his son on Tuesday 17 September 2013 at 4.30pm, which is consistent with child M's version of what happened and not consistent with his. The Child was collected at 4.40pm on Tuesday 3rd, and 4.30 pm on Tuesday 10th, the earliest the child was collected in September was 4.00pm on Tuesday 24th, which was during the vacation.
15. The Tribunal does not accept that CMD collected his son from day care on the 4th occasion before 4.30 pm. The Tribunal is satisfied on the balance of probabilities that CMD and Child M went directly to CMD's home from Child M's home, they did not go to the park and they did not collect CMD's child till after they went to CMD's home.

5th Tutoring Occasion - Child M's Version

1. It is common ground that the last tutoring occasion occurred in the September vacation of the school which was from 20 - 30 September 2013. Child M thought it was a Wednesday.
2. The only Wednesday in that period is Wednesday 25 September 2013.
3. CMD's evidence is that he collected Child M at about 12:00pm from her home. Again, he told her mother that they would "go to a park or something". But Child M alleges that after they left her home CMD told her they were instead going to his house. She alleges that when they arrived at his home there was some tutoring and then she massaged his shoulders and neck, he massaged her shoulders and back, he lifted the back of her shirt, he undid the back of her bra, he took off her bra, he massaged her and touched one of her breasts, he tried to kiss her, and she told him several times to stop, and he subsequently stopped and apologised to her. They then packed up and left the home at about 3:00pm. They then collected his child from the day-care centre and drove Child M to her home with his child in the car.

5th Tutoring Occasion - Applicant's Version

1. CMD recalls the occasion as being 24 September 2013, a Tuesday.
2. In his affidavit he alleges he collected Child M from her home at about 12:30pm and drove to the same park and tutored Child M.
3. In his affidavit filed 7 October 2016 he said "I was due to pick up my son from day-care at about 3:00pm". He said that after the tutoring he collected his son from day-care. In oral evidence he said he had "arranged to pick up my son at 2:30pm at the end of day-care". But in cross examination he said he picked up his son at "about 3 o'clock, 3.30, 4 o'clock, 4.30 …"
4. His inconsistency with the time he says he had to collect his child from day care is particularly concerning.
5. He said they were at his home for a maximum of 10 minutes, and in that time child M minded his child in the lounge room and "he was walking / running around"..
6. When asked about why he went to his home rather than return child M to her home when they left day-care and he said he "had to collect" his son from day-care. He said his son was crying when he collected him and he believed that he was hungry, so he went home for food for his son.
7. CMD's evidence is that on the 4th and 5th occasions he had collected his son from day care and the reason he then drove to his home was that he thought his son was hungry and he went to his home for food for his son.
8. But it is unlikely that the child would have been hungry at 2.30 pm or 3.00pm because it is more likely than not that the child would have been fed lunch at day-care, and the centre's records show that of 15 days that the child attended the centre in August / September 2013, there were 13 days when he was not collected until 4:20pm or later. It appears that there were arrangements in place for the child's food needs to be met up to 4.30pm.
9. If it were likely that the child might be hungry when he collected him then he could have prepared or bought a drink and snacks before going to collect the child, so as to take child M home directly from the day care centre and avoid going to his home. But he did not do so.
10. It seems unlikely that the child would be crying with hunger at 2:30pm or 3:00pm when he usually was not collected till after 4.00 pm and often not till 4.30 pm. It is unlikely that CMD would have interpreted the child crying at 2.30 pm or 3.00 pm as being a result of hunger.
11. It is common ground that this session occurred in the school vacation. CMD says it was a Tuesday 24 September 2013. The childcare records show that his son was collected on that date at 4:00pm. The vacation for the school was from 20 - 30 September 2013. The childcare records for that period show that CMD's son attended and was collected as follows: 1. 20/09 - absent; 2. 23/09 - collected 4:30pm; 3. 24/09 - collected 4:00pm; 4. 25/09 - absent; 5. 26/09 - absent; 6. 27/09 - absent; 7. 30/09 - collected 4:40pm,
12. There is no record of the child being collected from the centre before 4:00pm on any day in the September vacation. The Tribunal does not accept CMD's evidence that on the 5th tutoring occasion he collected his son at 2:30pm or 3:00pm, or at any time before 4:00pm. His evidence in that regard is false.
13. The Tribunal also does not accept his evidence that on the 4th and 5th tutoring occasions he took Child M to his house because he believed his son was hungry.
14. CMD gave evidence at the hearing that his tutoring sessions are usually 1 or 1.5 hours in length and child M's house is 15 - 20 minutes from the park. His evidence was that on the 5th occasion they went to the park at 12:30pm. Child M said they left her home at 12:00pm.
15. If one allows 90 minutes for travelling to the park and then the tutoring, on CMD's evidence, he would have been free before 2:00pm to collect his son from day-care. Even if he had taken 90 minutes with the tutorial, on his times, he would have had time to collect his son from day-care before 2:30pm.
16. But the range of time that his son (according to the child care records) was collected during that vacation period was 4:00pm - 4:40pm. On that basis, depending on which day it was and whether the tutoring was for 60 or 90 minutes, he had a range of 90 minutes to 150 minutes of additional time from when he completed the tutoring to when he collected his son from day-care.
17. The Tribunal finds on the balance of probabilities that CMD took Child M to his home on both occasions before he collected his son from day-care.

Conclusions

1. If the Tribunal was satisfied on the balance of probabilities that none of the alleged conduct of CMD occurred, then there is limited evidence of conduct of CMD that would be of concern in considering whether he poses a risk to the safety of children.
2. Findings substantiating any of the conduct the subject of the complaint would support a finding that CMD does pose a risk to the safety of children.
3. There may also be a situation where the Tribunal is unable to make a finding on the balance of probabilities that any of the alleged conduct occurred and not able to find on the balance of probabilities that any of it did not occur, but the evidence may still support a finding that CMD poses a risk to the safety of children.
4. Given the problems with child M's credibility, the tribunal is not able to find on the balance of probabilities that any of her complaints about conduct of CMD towards her are proved on the balance of probabilities.
5. But the credibility problems with CMD are also serious, particularly with the false evidence he gave about the sequence of events on the 4th and 5th tutoring occasions. He has not offered an explanation as to why he lied about those matters. Because of his credibility problems and the finding that he did take child M directly to his home on both occasions without telling either of her parents and it was a significant period that passed on both occasions before they collected his child from day care, the tribunal is not able to find that any of the allegations of child M about his conduct at his home on those occasions are, on the balance of probabilities, false.
6. The Tribunal has concluded that there is a strong possibility that some of the conduct child M alleged occurred on the 4th and 5th tutoring occasions in CMD's home did in fact occur.
7. On all the evidence the Tribunal finds, on the balance of probabilities, that CMD does pose a real and appreciable risk to the safety of children.
8. The correct and preferable decision is that CMD should be refused a Working With Children Check Clearance. The decision of the Children's Guardian should be affirmed.
9. There should also be a non-publication order to protect child M and any other child mentioned in the reasons.

Orders

1. The orders of the Tribunal are; 1. The decision of the Children's Guardian of 25 February 2016 refusing to issue CMD with a Working with Children Check Clearance is affirmed; and 2. Publication or broadcast without the leave of the Tribunal of the name or other identifying information of any child referred to in the proceedings is prohibited.

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: 12 May 2017