EMN v Children's Guardian

EMN v Children's Guardian - [2022] NSWCATAD 210 - NSWCATAD 2021 case summary — Zoe

[3]

Does the applicant pose a real and appreciable risk to the safety of children?

To engage in child-related work in NSW, a person must hold a working with children check clearance. The Children's Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. (s18(1) of the Child Protection (Working with Children) Act 2012)
Where the Children's Guardian becomes aware that the holder of a working with children check clearance is a disqualified person, the Children's Guardian must cancel his or her clearance. The Children's Guardian must also cancel a working with children check clearance if satisfied that the holder poses a real and appreciable risk to the safety of children. (s23 of the Child Protection (Working with Children) Act 2012)
To determine whether a person poses a risk to the safety of children, the Children's Guardian must conduct a risk assessment for a person who is subject to an assessment requirement. The Children's Guardian also has the power to conduct a risk assessment of an applicant who is not subject to an assessment requirement (s15(1) & s15(3) of the Child Protection (Working with Children) Act 2012).
A person is subject to an assessment requirement if any of the matters specified in Schedule 1 of the Child Protection (Working with Children) Act apply to the person. These matters include the commencement of proceedings against the person for particular offences, findings of misconduct involving children that have been made against the person and where the person has been the subject of a notification of concern by the Ombudsman. (Schedule 1 to the Child Protection (Working with Children) Act).
In this case, the applicant was investigated by the Department of Education in relation to allegations that he had a personal and sexual relationship with a female student.
In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered those matters raised by the Children's Guardian in cancelling the applicant's working with children check clearance, namely: 1. the nature of the applicant's relationship with the female student (as investigated by the Department of Education); 2. the applicant's dismissal from the female student's school; and 3. the applicant's history of substance abuse.
We have also considered the expert psychological evidence and personal and professional references put forward by the applicant.
We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

[4]

Background

The applicant is a qualified high school teacher.
In early 2017, he was employed at a private religious school where he worked for seven and a half weeks until he was dismissed in March 2017. According to the school's principal, the applicant was terminated due to 'ongoing concerns relating to his failure to adequately supervise students… and his failure to follow correct policies and procedures.'
In July 2018, a female student at the private school disclosed to teachers that she had been having a sexual relationship with the applicant. The student was interviewed by police officers and a statement taken that was neither completed nor signed.
No charges were laid against the applicant because: 1. he was no longer a teacher at the student's school when their sexual relationship began (on the student's seventeenth birthday) and so was not guilty of an offence under s73 of the Crimes Act 1900 (NSW) which requires a person to be under 'special care'; 2. any alleged grooming behaviour only constitutes a criminal offence when the complainant is under the age of sixteen years, and the student had already turned sixteen when the applicant started work as a teacher at her school. (see s66EB of the Crimes Act).
In November 2019, the applicant was placed on the Department of Education's list of people not to be employed in any capacity. This followed a sustained finding that, in pursuing a personal relationship with a student at the private school where the applicant had been employed, the applicant had engaged in sexual misconduct.
In December 2019, an interim bar was placed on the applicant, prior to the cancellation of his working with children check clearance in 2020.
In 2019, the applicant received compensation and expenses from the Workers Compensation Commission following his inclusion on the list of people never to be employed. The applicant also instituted proceedings for unfair dismissal and in 2021, he reached a settlement with the Department of Education.

[5]

What was the nature of the applicant's relationship with the female student?

In considering this issue, we have had regard to the applicant's evidence in addition to emails and text messages between the applicant and the student.
Contained on file is a lengthy police statement by the student. The statement is unsigned and the respondent declined to make the student available to be cross-examined in these proceedings. In these circumstances, to give any weight to the statement would be to deny the applicant procedural fairness. For this reason, we have accorded no weight to the student's statement. (Children's Guardian v BRL [2016] NSWSC 1206 )
The private school where the applicant taught in 2017 is exclusively attended by students from a conservative religious community that prohibits contact with non-members (apart from those teachers at the private school who are not part of the community).
It is not in dispute that the applicant was never the teacher of the student in question when he was employed at her school. Rather, the student came into contact with the applicant through the school's musical program and when the applicant lent her sporting equipment. Later the applicant repaired the student's laptop. We accept the applicant's evidence that a friendship developed with the student that intensified when, after having repaired her laptop, the applicant gave her his personal email address - hidden in a document within her computer files - and encouraged her to email him.
In cross examination in these proceedings, the applicant agreed that there was no good reason for him to communicate with the student using his personal email address but that he had done so regardless.
When taken through the evidence, the applicant agreed that well before he had left the private school, he had a deeply personal relationship with the student in question that had become romantic. He accepted that while still employed as a teacher at the private school, he had formed a romantic relationship with the student that, at the time, had not been physically intimate. In evidence before the Tribunal, he accepted that this was wholly inappropriate.
The applicant agreed that the nature of their email exchange had become romantic prior to his dismissal from her school confirming that, on the day of his dismissal, he had sent her an email ending with 'I love you. I love you. Good night.'
The applicant doesn't deny that, after his dismissal, he and the student continued to communicate electronically using an encrypted mailbox set up by the applicant to avoid their emails being monitored. He also agreed that he and the student had communicated by email using a code that reversed the letters of a word.
The applicant gave evidence that his relationship with the student in question needed to be seen in the context of her strict religious community and the steps taken by the applicant to try to become part of this community, including having discussions with elders of the community. The applicant gave evidence that women marry early in the community, with a short courtship from the age of seventeen or eighteen, and that he had discussed entering the community through marriage to the student.
The applicant agreed that a sexual relationship had developed with the student after her seventeenth birthday, when the applicant was no longer a teacher at the student's school. He gave evidence that he discontinued the relationship and stopped contact with the student when it became clear that he could not join her religious community unless he agreed to sever all 'worldly ties,' including with his children. According to the applicant, the student continued to try to contact him: unfortunately [the student ] kept seeking me out and trying to maintain the relationship. I have previously provided evidence of emails from [her] that show she was trying to contact me up until 2020…She had made attempts to contact people in the community to find my new address and phone number until successfully receiving my phone number…[She] then came to my new residence and stated that she had made her way to my old address at 3am and waited outside that premises for hours until realising I no longer lived there.
The applicant stated that 'I have no intention of ever having a relationship with a young person again. This was a unique situation in the context of joining the [student's religious community]. It has been emotionally devastating for me.'
Contained on file are printouts of email conversations from an email address we are satisfied belonged to the student to another email address we are satisfied belongs to the applicant.
We accept that it had been the applicant's intention to enter the student's religious community in order to marry her. We accept the evidence of the applicant, as corroborated by the evidence of Ms Howell below, that in this community, women are encouraged to marry at a young age. We also accept that the applicant decided not to become part of the community when he was told that he would have to agree to sever contact with his children. We accept that this led to the cessation of his relationship with the student and ended his plans to marry her.
We are satisfied that whilst a romantic relationship developed between the applicant and the student while the applicant was a teacher at her school, the relationship did not become sexual until the applicant had been dismissed from the student's school and the student had turned seventeen.

[8]

Ms Jenny Howell

The psychologist, Ms Jenny Howell, provided reports for the applicant in March and July 2021. She also gave evidence in these proceedings.
Having assessed the applicant's risk of sexual offending using the Static-99R and STABLE-2007 tools, Ms Howell found the applicant's risk to offend to fall in the Below Average Risk range. This finding was supported by the STABLE-2007 and clinical assessment undertaken by Ms Howell.
In reaching this view, Ms Howell also took into account the applicant's protective factors, including: 1. no convictions for child sexual abuse, 2. no attitudes supportive of child sexual abuse, 3. no evidence of sexual deviance, 4. no major mental illness, substance abuse or violent or suicidal ideation, 5. positive and supportive relationships with his parents, siblings and peers, 6. long term relationship with the mother of his children with whom he retains an amicable relationship post separation.
The applicant told Ms Howell that his relationship with the student in question had ended when he was denied entry into her religious community. The applicant explained that had the student married him without consent, she would have been excluded from her family and her religious community. The applicant told Ms Howell that he was unwilling to see the student separated from her family and everything she knows and that they had parted on a friendly basis.
When asked, at hearing, about the covert emails sent between the applicant and the student, Ms Howell agreed that they demonstrated a crossing of professional boundaries between a teacher and a student. She accepted that the emails put a different slant on the relationship between the applicant and the student than how the applicant had portrayed it in his interviews with Ms Howell. In evidence during these proceedings, Ms Howell described the applicant as 'a somewhat immature man, with loneliness around intimacy and relationships.'
In her supplementary report dated 5 April 2021, Ms Howell confirmed her view that the applicant does not pose an unacceptable level of risk to children: [EMN]'s score on the STABLE-2007 suggests a low level of criminogenic need relative to convicted male offenders. Clinical assessment suggests [EMN's] risk to sexually offend is low. He has no prior charges or convictions for child sexual abuse. He presents with a number of protective factors including: he does not hold attitudes supportive of child sexual abuse; there is no prior evidence of sexual deviance; major mental illness; issues related to substance abuse; or violent and/or suicidal deviance; [EMN] demonstrates an ability to initiate and maintain positive and supportive relationships with significant adults in his life. He had a… stable and supportive relationship when his then partner who are the parents of [their] children. Whilst they have been legally separated for over 12 months, they maintain an amicable relationship and remain good friends. [EMN] described himself as an involved father who spends considerable time with his children on a weekly basis. I understand from [EMN] there have been has been no involvement of the Department of Communities and Justice (DCJ) in relation to concerns around his behaviour and care and safety of his children. It is my view that [EMN] presents as a prosocial man with appropriate social skills and he exhibited a level of self-awareness throughout the assessment. I did not identify any deficits in his capacity to act in a prosocial manner and it is my view that he does not pose an unacceptable level of risk to children
When supplied with additional documentation subsequent to the finalisation of her initial and supplementary report, Ms Howell confirmed that none of the additional material served to change her opinion that the applicant does not pose an unacceptable risk to the safety of children.
Ms Howell was satisfied that the applicant recognised that a relationship between a teacher and student was not right and noted that his was an 'overwhelming emotional place' to be. She was critical of the school's failure to protect either the applicant or the student.
She expressed some concern about the email contact between the applicant and the student and a regret that he hadn't mentioned the extent of their email content. She noted the applicant's traumatic upbringing and desire to self-protect as possible reasons for his failure to discuss this email contact with Ms Howell. She formed the view that, given his traumatic upbringing, the applicant had been 'completely overwhelmed.' She reiterated her view that the applicant does not pose a real and appreciative risk to the safety of children, describing him as a diffident and anxious man with a good relationship with his own children.
During these proceedings, Ms Howell discussed her knowledge of the student's religious community, confirming that its members are encouraged to marry early which poses a difficulty if there are no eligible partners within the community. Given that the applicant is not old, Ms Howell expressed the view that the applicant may have well been seen as an option to join the community through marriage. Ms Howell expressed the view that the applicant could not have envisaged the vulnerability and naivety of the student, given that her religious community did not discuss sexual information and would not have spoken to the student about sex because, in the religious community, sex begins with marriage.
Ms Howell described the applicant as being 'very young in terms of his emotional development' and expressed the view that he would benefit from working 'with people around the process that led him to this point.'
According to Ms Howell: [EMN] would be an excellent candidate for counselling. He needs to know the behaviour expected of a teacher towards students. [He] needs support in reading the situation.
Were the applicant to resume teaching, Ms Howell recommended that counselling be programmed before his return, suggesting six months of weekly intense counselling, followed up with fortnightly or three weekly counselling until such time as the applicant is completely aware of the rules and able to implement them. She recommended counselling specifically focused on assisting the applicant to understand and develop appropriate boundaries.
Ms Howell noted the importance of this, as the applicant 'can't afford to have such attention come to him again.' She also suggested a 6-12 month follow up.
The applicant indicated his willingness to attend counselling sessions as recommended.

[12]

Weight to be given to the relationship between the applicant and the student in question

The question for the Tribunal is this: in its determination as to whether the applicant poses a real and appreciable risk to the safety of children what weight should be given to the allegations that the applicant engaged in an inappropriate relationship with the student in question?
There are three possibilities.The Tribunal may be satisfied that such an allegation against an applicant is established. Alternatively, the Tribunal may be satisfied that the relevant incident did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, the Tribunal 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 the existence of a risk has not been disproven: Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33].
In this case, the applicant has conceded that he engaged in a romantic, albeit not physically intimate, relationship with the student in question while working at a teacher at her school. He has agreed that he communicated with her through personal emails, some of which were written in code and others that were later sent through an encrypted mailbox to avoid detection. The applicant has agreed that it was inappropriate to have such a relationship with a student who attended the school where he was employed.
The applicant has also admitted to having a sexual relationship with the student once she had turned seventeen and when he was not no longer a teacher at her school.
Details of this sexual relationship are contained in the incomplete, unsigned statement by the student in question. As set out above, because the student was not made available for cross-examination in these proceedings, we have given no weight to this statement. In doing so, we have been guided by Children's Guardian v BLF [2016] NSWSC 1206 where Fagan J commented at [29] -[31]: In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the victim and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none). If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the victim's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016. It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.
On the evidence before us, in particular that provided by the applicant himself, we are satisfied that he engaged in an inappropriate personal and romantic relationship with the student in question whilst employed at her school. We are satisfied that the relationship became sexual once the student turned seventeen and the applicant was no longer a teacher at her school and give weight to this evidence.

[29]

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work?

The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a "reasonable person" would need to know that the applicant established a personal and romantic relationship with a student at the school where he was a teacher that involved secrecy, encoded email messages and inappropriate declarations of affection.
The reasonable person would note that the applicant engaged in behaviour that sought to develop and conceal his relationship with the student in question and that the relationship became sexual when she was seventeen years old and he was working as a teacher at another school.
The reasonable person would need to know that the applicant was fourteen years older than the student, who was a member of a conservative religious community with little access to the world beyond her community. The reasonable person would note the particular vulnerability of the student given her sheltered upbringing.
The reasonable person would note the opinion of Ms Howell that the applicant does not pose an unacceptable risk to children and would also note her view that the applicant would benefit from counselling to educate him on maintaining appropriate boundaries and that this counselling should be weekly for six months before reducing to fortnightly or every three weeks. The reasonable person would also note Ms Howell's concern about the content of the emails sent by the applicant to the student.
In the absence of such counselling and in light of the professional boundaries breached by the applicant in his relationship with a student of particular vulnerability given her sheltered upbringing, we cannot be satisfied that the reasonable person would allow the applicant to have direct, unsupervised contact with their children.
Having regard to the material before us as considered above, we are not satisfied that, until the applicant has engaged in counselling specifically focused on maintaining professional boundaries with older students, a reasonable person with knowledge of this information would allow his or her child - particularly if the child is an older teenager - to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.
It is for this reason that that applicant should not be granted a working with children check clearance.

[31]

Future application for a working with children check clearance

A person refused a working with children check clearance, or whose clearance is cancelled, is not generally entitled to make a further application for a clearance for a period of five years from the time the notice of the refusal or cancellation is given (s13A(1)(a) of the Child Protection (Working with Children) Act).
An early application may be made if there has been a change of circumstances under which a further early application is permitted under s13A. A further early application is permitted where the Children's Guardian permits a person to make such an application.
According to Counsel for the Children's Guardian: Regarding section 13A(2)(d), whilst the Children's Guardian's discretion is, on its terms, unconfined, whether or not there has been a change of circumstances may be a significant consideration for the Children's Guardian. In this respect, the Respondent would require documentary evidence of any change in circumstances. In the case of the Respondent, it would be expected that this evidence would need to establish that he had meaningfully engaged with the counselling sessions on the issues identified by Ms Howell. In the event that the Respondent is satisfied that there has been a change of circumstances, the respondent may permit the applicant to lodge an early application under section 13A. In those circumstances, if the Applicant were to lodge a new [working with children check clearance] application, the Respondent would assess the application in the normal fashion. This would include considering material already in the Respondent's possession (including the Tribunal's decision) and any additional material either submitted by the Applicant, or obtained by the Respondent. In the event that the Respondent were to then refuse the application, this would be reviewable by the Tribunal in the usual way.
We agree with Ms Howell that the applicant would benefit from counselling to ensure he is able to maintain appropriate professional boundaries and note that the applicant is willing to undertake such counselling. Once he has undertaken the relevant counselling and obtained a report as to the outcomes of this counselling, such a report may be helpful to the Children's Guardian in determining whether to allow the applicant to make a further application for a working with children check clearance within a period earlier than five years.

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Judgment (34 paragraphs)

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