CMP v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-07-13

Introduction

The applicant, CMP, has made an application, under s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), seeking administrative review of the decision of the respondent, the Children's Guardian, to refuse his application for a working with children check clearance (a clearance). The respondent refused the applicant's application for a clearance as she was satisfied, after conducting a "risk assessment", in accordance with ss 14 and 15 of the WWC Act, that he poses a risk to the safety of children: see WWC Act, s 18(2).
The applicant's application for review was heard by us on 13 July 2016.
Given the sensitive nature of proceedings such as these, when the applicant's application first came before the Tribunal, at a directions hearing, by consent, the Tribunal made an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal. Hence the pseudonym CMP is used. In this decision we refer to CMP as the applicant.
For the reasons that follow, we have decided, the correct and preferable decision is to refuse the applicant's application for a clearance as we are satisfied, on the material before us and the applicable law, that the applicant today poses a real and appreciable risk to the safety of children: see Administrative Decisions Review Act 1997 (NSW), s 63(3) and WWC Act s 18(2).

The WWC legislative scheme

The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows: "3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
Section 4 of the Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of the Act.
The word "children" is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
Subs 8(1) of the Act prohibits a person from engaging in "child-related work", unless: 1. the person holds the relevant working with children check clearance, or 2. there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subs 9(1) 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 working with children check clearance, or there is no current application by the person for such a clearance.
Sections 6 and 7 define what is meant by "child-related work." It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles. It is not for the Tribunal to determine whether the work for which the applicant seeks to obtain a clearance is child-related work. However, a clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
A "worker" is defined in s 5(1) of the WWC Act to mean: " … any person who is engaged in work in any of the following capacities: (a) as an employee, (b) as a self-employed person or as a contractor or subcontractor, (c) as a volunteer, (d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),"
Section 13 provides that applications for a clearance are to be made to the respondent.
Section 18 prescribes how the respondent is to determine an application for a clearance. Subs 18(1) deals with applicants for a clearance who are "disqualified persons." The subsection defines a "disqualified person" to be a person who has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Sch. 2 of the WWC Act, or has been charged with such an offence and the proceedings in regard thereto are pending. Where a person falls within this description, subs 18(1) provides the respondent must refuse that persons' application for a clearance. Such persons are presumed to pose a risk to the safety of children: see WWC Act, s 28(7).
The applicant in these proceedings is not a "disqualified person." However, because he was charged with an offence falling within cl 1 of Sch. 2 of the WWC Act, he was subject to an "assessment requirement": see WWC Act, s 14 and cl 1(1)(b) of Sch. 1. Subs 15(1) of the WWC Act requires the respondent to conduct that assessment and subs 15(4) sets out the matters the respondent may have regard to in conducting that assessment.
In regard to persons who are not "disqualified persons", but are subject to a "risk assessment requirement", subs 18(2) of the WWC Act provides that the respondent must grant a clearance to such a person unless she is satisfied, following a risk assessment, the person poses a "risk to the safety of children".
The Tribunal has accepted the word "risk" in the context of the WWC Act should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "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."
A person who has had his/her application for a clearance refused by the respondent under subs 18(2), has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
Section 30(1) of the WWC Act sets out the factors the Tribunal must consider in determining an application for external review. That section was amended in November 2015, by the insertion of an additional cl 18(1A): see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31. The amendment does not apply to this application: see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 46 savings provision cl 16.
Section 30(1) provides: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of … any matters that caused a refusal of a clearance …, (b) the period of time since those … matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the … matters occurred, (d) the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
The above matters are similar to those the respondent may have regard to when undertaking a risk assessment under subs 15(4).
Finally, the Tribunal cannot make an order granting a clearance that is subject to conditions. A clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27]. Evidence before the Tribunal
In support of his application the applicant filed and served an affidavit he swore on 17 June 2016. In his affidavit the applicant explained he has a 40 year career in primary and high school teaching and athletics coaching. He also explained the circumstances giving rise to the 1992 charge in regard to the alleged events of 1991. The applicant also attached a number of references, including references and letters of support he obtained, in 1992, in response to the 1991 allegation.
The applicant gave oral evidence at the hearing and was cross-examined by counsel for the respondent.
The respondent relied on the documents she obtained in the course of her risk assessment and determination to refuse the applicant's clearance: Administrative Decisions Review Act 1997, s 58. These documents included; statements the applicant had made and submitted during the respondent's risk assessment, references the applicant provided and the material the respondent obtained in the course of her inquiries (e.g. response from the Department, the Local Court, the Office of the NSW Director of Public Prosecution, the NSW Police Sex Crimes Squad and the Department of Family and Community Services).
The respondent also relied on a further small bundle of documents, which contained additional material the respondent received from the abovementioned agencies.
Written submissions had also been filed and served by the parties. We have dealt with these below.

Issues for determination

The primary issue for us to determine in these proceedings is whether, on the material before us, we can be satisfied the applicant poses a real and appreciable risk to children.
The applicant contends he is not a risk to children. He submits he has an unblemished criminal record, he is a person of good character and has worked with children for many years without any problems arising. In regard to the allegations, he points to the fact that these have at no time been found to have been proven.
The respondent, on the other hand, contends that based on the circumstances surrounding the allegations and the applicant's responses thereto, we can be satisfied the applicant poses a real and appreciable risk to children.

Consideration

We note the jurisdiction of the Tribunal in matters under the WWC Act 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 any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.
The term "safety to children" is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children's Guardian [2016] NSWCATAD 65 at [9] - [15] and [67] and BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30].
The approach to be taken in assessing risk where the applicant has no conviction or finding of guilt in regard to an allegation(s) of conduct that would fall within Sch 1 or 2 of the WWC Act, has been considered by the NSW Supreme Court in CFJ v Office of the Children's Guardian [2016] NSWSC 1625 at [68] and [69]; Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14] and BKE (supra) at [30].
In BKE (supra) at [30], his Honour Justice Beech-Jones said, when considering risk, significant guidance can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. At [33] his Honour said: "... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
In CFW, at [14], his Honour Justice Harrison explained that in determining risk the Tribunal first had to consider "whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had "no hesitation in rejecting the allegation as groundless". His Honour went on to explain, at [15], even if no "positive finding" can be made, "[the] court or tribunal is still obliged to consider the question of risk that may be indicated by all the facts, unless it is determined that the allegation is "groundless". At [16] and [17] his Honour said: "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. …"
In considering whether a positive finding can be made as to an alleged act of wrongdoing where there is no conviction for doing so, the Tribunal is to apply the civil standard of proof, on the balance of probabilities: see CFW at [14] to [17], BKE (supra) at [33]; BSR (supra) at [18]; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J. As the Tribunal is not bound by the rules of evidence (NCAT Act, s 38(2)), it has also been argued that the Tribunal's task in this regard is to act fairly, on the basis of relevant and probative evidence and seek "a comfortable level of satisfaction … commensurate with gravity of the charge": see CFJ (supra) at [66].

(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance

The acts and omissions the subject of the charge laid against the applicant concerning child A were that on a specified day he touched child A on her genitals with his hand and his foot. The incident is alleged to have occurred at school while child A was at and then under the applicant's desk. In her interview, child A said she was standing in front of the applicant's desk. She said she was showing the applicant a book and while she was standing beside his desk the applicant touched her with his hand on her genital area. She said that child C then told her to get under the desk so she did and that was when the applicant touched her with his foot. She said he had his shoes and socks on but he then took off his shoes. Child A went on to say that child G and child E would also sit under the applicant's desk at times and that she had seen the applicant touch child C with his foot while she was under the desk.
In her statement, child C said that when she and child A were under the desk the applicant touched her and child A on "the private" with his foot, with his shoes off. She explained that they were under the desk because she had wanted to tell child A something secret. She said that after the applicant had touched them they moved his foot away and got out from under the desk.
A similar complaint was made by child D and her allegation was supported by child E in her interview.
In addition to the touching, the children interviewed by police and DOCS also said the applicant would put his arms around them and touch them in the genital area; he would cuddle students, he would refer to student's by a nick name he gave them; he got very angry and smashed his hand against the black board, the wall and the door and he would slam books shut loudly beside a child's ear. It was also asserted the applicant told the class that child A was no longer his "girlfriend" and that he told her he would kiss her. Child H said the applicant had lifted her up and shaken her and that he spoke inappropriately to some girls. For example, telling child B to "sit on your fanny."
In their interviews a number of children said they were afraid of the applicant because of his behaviour. Child A said she did not wish her mother to tell anyone about what she had said as the applicant would get angry with her.
In his interview with police the applicant denied he had touched child A with his foot. He also denied he had cuddled the girls or acted inappropriately towards them as alleged.
The charge against the applicant was discontinued as the parents of child A and H said they did not wish to have their children participate in the court processes.
In his affidavit the applicant gave a detailed account of his short time at the school and the difficulties he said he encountered with the students in his class. He explained that the class consisted of 16 students of which two were under the supervision of DOCS and five were residents of a DOCS out-of-home care facility. The rest he said came from regular families. He noted that the statements obtained in the course of the investigation of the allegation made by child A only came from children who were under DOCS supervision or a resident within the DOCS facility. He said no statements were collected from non-DOCS controlled children. However, he did obtain numerous letters of support from the parents of a number of other students in his class and copies of these were included in the s 58 documents.
In his affidavit, the applicant named the children who had provided statements, including child A. He also provided considerable detail about the behaviours of the children, including information concerning their family situations and their bizarre and often sexualised behaviour. He said he reported his concerns about this behaviour to the principal of the school and other relevant officers. However, no record of any report was provided.
The applicant asserted child C would often drop her pants in class and expose herself. He said she was a "chronic attention seeker" and would often send him love notes. He said in the last week of term it was very hot. He said he was sitting on a chair next to his desk under "our one operating fan." He was wearing shorts and sweat was pouring down his legs when child C "asked if I would like my shoes off to be cooler." He said he thought about it and took them off. He said he usually kept his ankles crossed but because he was so hot he uncrossed them. He said on doing so, child C grabbed his right ankle with two hands and lifted herself up onto his right instep and started to rock back and forth. He said he picked her up and ordered her to her desk "to write out spelling words."
The applicant also said there were two occasions where child A and child C were under his desk. He said he did not see them crawling under the desk as he was marking students work. He said he was warned they were there on the first occasion but was not so warned on the second occasion. He said he only knew they were there when his right foot was "strongly bumped."
The applicant explained that he had told the class on several occasions that he had an 11 year old daughter and on one occasion he told a small group of the girls that he was teaching her how to do handstands. The applicant said child A wanted him to show her how to do handstands. The applicant said he asked child A whether she had shorts on and when she said yes he told her what to do. He said he would lift her feet up until her legs were straight. He said when he started to lift child A's feet up she hung onto her dress and when she said she had her "ballet shorts or scungies" on he lowered her back down. In our view, the applicant's conduct was highly inappropriate.
In regard to the allegations the applicant again denied he touched child A or any of the other girls as alleged. He denied he constantly cuddled the girls, or said rude words. In regard to his comment about being child A's boyfriend, he said this was a joking response to her comment to him that she had a new boyfriend. The applicant also acknowledged he gave a nickname to one of his students, as alleged. He said he asked her whether this was ok by her and she responded "yes". In our opinion the applicant's responses were inappropriate and indicative of an overly familiar relationship with the students, rather than a strictly professional one. .
If true, the alleged offending conduct of the applicant the subject of the charge concerning child A are serious. This is especially so as the interviews with the other children indicate it was not an isolated incident.
The respondent submitted there was sufficient evidence before us to make a finding that the alleged offending did occur. However, in our view, having regard to the material before us and considering the gravity of the allegation, there is insufficient evidence to make such a finding.
However, we are not at the same time able to find that the allegation and the alleged circumstances surrounding that allegation are groundless. As we have noted, in these proceedings the applicant acknowledged certain aspects of the alleged inappropriate conduct. In our opinion many of these concessions raised issues concerning the applicant's understanding and insight of appropriate professional boundaries between a teacher and students, especially children who to his knowledge had been exposed to and continued to be exposed to a range of inappropriate conduct and alleged serious abusive. In this regard of particular concern are the applicant's: (a) use of nick names and jokingly referring to being the boyfriend of a student are both indicative of inappropriate familiarity; (b) demonstrating headstands which can expose children to humiliation if not appropriately clothed for this activity; and (c) taking off his shoes while sitting at his desk, with the knowledge of children in the class having sat under the desk and his apparent failure to regard this as inappropriate - again this behaviour encouraged familiarity and lessening of boundaries. In a sense his behaviour could be viewed as provocative. However, we do not find that there was a deliberative motive in his conduct - it was a lack of insight and this was ongoing.
We are also concerned about the applicant's apparent lack of understanding of what is required of a teacher when he/she becomes aware that a particular child is at risk of serious harm.

(b) The period of time since those matters occurred and the conduct of the applicant since that time S

It is almost 25 years since the applicant was charged with the 1991 trigger offence.

The applicant was 41 years of age at the time of the alleged trigger offence.

(d) The age of the victim at the time the matters occurred and any matters relating to vulnerability of the victim

Child A was 10 years of age at the time of the alleged trigger offence. Child A was especially vulnerable - she was a child with learning difficulties and to the knowledge of the applicant possibly subject to abuse.

(e) The difference in age between the victim and the applicant

The difference in age between child A and the applicant was 21 years.

(f) Whether the person knew the victim was a child

The applicant knew child A was a child.

(g) The applicant's present age

The applicant is now 66 years of age.

(h) The seriousness of the applicant's total criminal record

The applicant has no criminal record other than having been charged with the trigger offence.

(h) The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

The respondent submitted the applicant has at no time addressed his conduct that gave rise to the risk assessment. Instead he has blamed the children and others for the situation he found himself in.
We understand the respondent to contend that given the nature and similarity of the allegations made by the children in 1992 and the further allegations made in 1998 and 2000 and his responses thereto there is a likelihood of the applicant repeating conduct of this kind in the future. The impact on children of conduct of this kind would be serious.
The applicant, on the other hand submits he has at no time acted inappropriately and is unlikely to do so in the future.
In our opinion, the applicant's response is indicative of his lack of insight and understanding of his behaviour in 1991 and how it might have contributed to the allegations that were made. In his evidence at the hearing, the applicant acknowledged he had not received any training in dealing with children with challenging behaviours and special needs. Nor has he sought to obtain any training or counseling in this regard since that time. Instead he has retained his very defensive approach and in our opinion has failed to address the more serious boundary issues that are apparent from his conduct at the time.
Hence, we find that in the absence of any real insight into his own behaviour, there remains a likelihood the applicant could engage in conduct as alleged if found in similar circumstances to that of 1991. As he said in his 1992 resignation letter "I cannot return to work teaching girls in a class room situation again". In this application, the applicant has failed to explain what has changed since that time.

(i) Any information given by the applicant

We accept there were parents of students in the applicant's class of 1991 who had a high regard for the applicant and how he taught their children. However, whether they also had knowledge of the allegations made against the applicant is not explained. We also accept the applicant is a much loved father by his daughter and his son and that he has a good relationship with his daughter's young child. That relationship is of course in a personal context and not in a working context.
We accept there have been no further allegations of inappropriate conduct made against the applicant during his more recent years of employment as an educator. Furthermore there have been no adverse reports about his role as an athletics coach.
And we accept the applicant has been fully frank and forthright in these proceedings.

(j) Any other matters the respondent considers necessary

It is the respondent's contention that the Tribunal should give considerable weight to the number, nature and similarity of the allegations that were made against the applicant. The respondent argued that in light of five complaints having been made against the applicant, this of itself created a risk. The respondent also submitted that in the absence of any independent expert evidence to assess the identified risks this demonstrates the applicant is not a safe person to engage in child related employment.
It is the role of the Tribunal to determine risk in applications made under part 4 of the WWC Act and while an independent expert report from a suitably qualified and skilled professional may assist the Tribunal in assessing risk, there is no statutory requirement for such an assessment, let alone a requirement that an applicant for review should provide such a report.

Conclusions

We reiterate, the principal issue for us to determine in this application is whether the applicant poses a risk to the safety of children in the sense of a risk to the safety of children, taking into account the matters enumerated in s 30(1) of the WWC Act.
In summary there are many factors in the applicant's favour. He has not been the subject of any complaints in his role as an educator or a sporting coach. His referees speak highly of him and he is supported by his children. However, while we have not found the conduct the subject of the 1992 charge to have been proven, we are not able to find the alleged circumstances surrounding the allegation to be groundless, as many are in effect acknowledged by the applicant. The allegations arose in the course of child-related work where the applicant was a teacher and the alleged victims were children between the age of 10 and 12. Furthermore, the children were especially vulnerable.
While the allegation concerning child A occurred 25 years ago, her allegation is not an isolated one. We accept there was no deliberative motive in the conduct we find to have been inappropriate - it demonstrated a lack of insight into maintaining appropriate professional boundaries, which were ongoing. The applicant has not undertaken any counselling in this regard. Instead he blames others for the situation he found himself. As a consequence we are concerned he continues to lack an understanding and insight into appropriate professional boundaries of behaviour and what steps need to be taken to protect children from harm. This does not mean the applicant is unable to address these issues through appropriate professional consultation and treatment. It is a matter for him as to whether he undertakes such consultation and treatment. If he does and is able to provide a report that satisfies one of the requirements of s 13A(2) of the WWC Act, the respondent may accept an application prior to the five year embargo set out in s 13A(1)..
However, on the material before us we are satisfied the applicant poses a real and appreciable risk to the safety of children if he were granted a clearance under the Act. Accordingly, the appropriate order is to affirm the decision of the respondent. 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: 07 December 2016

Child Protection Legislation Amendment Act 2015(NSW)

At a glance

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Decision date

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Judgment (17 paragraphs)

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Legislation Cited (5)

Cases Cited (12)