FXF v Children's Guardian

Prohibition order

1. Due to the sensitive nature of these proceedings and to protect against the identity of any alleged victim being disclosed, an order was made on 17 August 2023 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") that the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings (except for expert witnesses and officers of government agencies) is prohibited. To further protect against the identity of any alleged victim being disclosed, these Reasons do not identify the names of any schools or geographic locations of courts where proceedings took place.

Jurisdiction and procedure

1. Since the applicant was self-represented, the Tribunal explained the general process for the hearing. Noting that written submissions and documentary evidence in support of his application had not been put before the Tribunal before the hearing, the Tribunal invited the applicant to make opening oral submissions.
2. The applicant's opening submissions comprised prayers and scriptural references, appealing to the "court of heaven" to overturn the Refusal Decision.
3. The Tribunal respectfully acknowledged the applicant's personal views with respect to his spiritual beliefs, and asked whether he would be making any legal submissions. The applicant asserted that the scriptural references were, indeed, his legal submissions.
4. The Tribunal explained that its jurisdiction is found in the Act and related legislation, and asked the applicant to address the fundamental issue as to whether he poses a risk to the safety of children.
5. Despite a number of requests from the Senior Member, asking him to refrain from reading scripture to the Tribunal, the applicant persisted with prayers and biblical references. The Tribunal considered that it had allowed a reasonable amount of time and latitude to the applicant with respect to his pronouncements relying upon scripture, and ascertained that the applicant was prepared to file a document containing his written submissions. On that basis, the Tribunal decided to move from hearing oral submissions, to hear the applicant's oral evidence.
6. The applicant objected to the Tribunal's decision, arguing that it was his "right and privilege" to make oral submissions.
7. The Senior Member explained to the applicant that the Tribunal had not issued a formal direction and had simply decided as a step in the process to move to hearing his oral evidence since he was prepared to hand up his submissions in writing. The Senior Member assured the applicant that he would have an opportunity to make further submissions and also noted that the Tribunal could determine matters of procedure as set out in the relevant legislation.

Material and evidence before the Tribunal

1. The applicant sought to rely upon the following material handed up during the hearing: 1. a copy of the Court Order Notice from the District Court dated 4 February 2021 confirming the appeal against his conviction had been upheld (marked for identification as "Exhibit A1"); 2. a copy of the District Court order made on 20 May 2021 revoking the Apprehended Violence Order that had been made against him on 31 January 2020 for the benefit of the complainant (marked for identification as "Exhibit A2"); 3. a copy of the Medical Assessment Certificate dated 1 October 2019 issued in connection with the applicant's worker's compensation claim for damages for a psychological injury against the DoE (marked for identification as "Exhibit A3"); 4. a copy of an email dated 12 February 2024 from the District Court Registry to the applicant confirming orders made on that date in connection with a forthcoming hearing in the District Court (marked for identification as "Exhibit A4"); 5. a copy of a Certificate of capacity/certificate of fitness completed by the applicant and his treating medical practitioner, dated 16 February 2024, in connection with his worker's compensation claim for the injury he sustained as a result of being assaulted by a student on 10 August 2018 (marked for identification as "Exhibit A5"); 6. a copy of newspaper articles concerning the principal (now deceased) of the school where the applicant had been employed (marked for identification as "Exhibit A6"); 7. written submissions (not marked).
2. The respondent relied upon the following material: 1. a bundle of documents filed on 23 August 2023 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act") (marked for identification as "Exhibit R1"); 2. a further bundle of documents (comprising two volumes) filed on 7 September 2023 pursuant to s 58 of the ADR Act (marked for identification as "Exhibit R2"); 3. written submissions dated 13 February 2024 (not marked).

Oral evidence

1. The applicant gave oral evidence and was cross-examined during the hearing.

Oral submissions

1. Both parties made oral submissions.

Test to be satisfied in determining the application

1. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person "poses a risk to the safety of children". Applying that test, and on the material before the Tribunal, the issue for determination is whether the Tribunal is satisfied that the applicant does not pose a risk to the safety of children.

No presumption that the applicant poses a risk to the safety of children

1. In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof, although the applicant has a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [39]-[40].

Full disclosure of relevant matters is required

1. Whilst there is no statutory presumption that the applicant poses a risk to the safety of children, he nonetheless has a statutory obligation to "fully disclose to the Tribunal any matters relevant to the application": s 27(4) of the Act.

Family history

1. The applicant is 50 years of age, divorced and the father of two children. He was the third child in a four sibling family, and his parents are now deceased.
2. He stated in his letter dated 14 November 2022 to the Children's Guardian that he has full custody of his son (who is now almost 18) and that he had shared custody of his daughter (who is now aged 19) on weekends. It appears that the applicant separated from his wife in around 2010. There is no suggestion that the applicant behaved inappropriately towards his children and no allegations have been made against him regarding their safety.
3. The applicant was educated in catholic schools, and completed his Higher School Certificate.
4. His first employment was as a service station assistant when he was about 18 years of age. He then commenced studying law at a University in Sydney, with plans to work as a Police Prosecutor. He was recruited into the NSW Police Force and was trained in Goulburn. He worked as a Constable before resigning in 1999 after 3 years in the Police Force. According to his letter dated 14 November 2022 to the Children's Guardian, he resigned from the Police Force on a 'without prejudice' basis and was not subject to any concerns including disciplinary complaints, reports or proceedings.
5. The applicant then trained to become a high school teacher. He worked as a casual teacher at various catholic primary and high schools before commencing employment with the DoE in around 2002. He was employed as a teacher within the social sciences faculty at the high school where the Trigger Offence and other incidents were alleged to have occurred, until August 2018.
6. In his submission to the Children's Guardian dated 27 July 2021, the applicant stated that he had made three successful workers compensation claims against the DoE for workplace bullying and harassment. He asserted that he suffered stress and psychological injury as a result of having complaints made against him for efficiency and conduct which were false. He also stated that the complaints arose from interpersonal issues between himself and the principal of the school.
7. The applicant had been on an extended period of workers' compensation between 26 August 2016 to mid-2018. He had worked on a part-time basis in Term 1 in 2017, and returned to teaching in August 2018.
8. On 10 August 2018, a student who was the complainant's boyfriend ("KA") assaulted the applicant. The police were called and the student was cautioned. This is discussed more fully under "Consideration".
9. In the course of being interviewed about his assault of the applicant, KA disclosed that the applicant had assaulted the complainant. On 15 August 2018, the allegation that the applicant had indecently assaulted the complainant was reported to the police and subsequently to the Child Abuse Squad. The complainant was interviewed on 17 August 2018 which was electronically recorded.
10. Also on 17 August 2018, the Child Abuse Squad advised the Employment Performance and Conduct Directorate ("EPAC") of the DoE that an Apprehended Violence Order ("AVO") had been served on the applicant. Under the AVO, the applicant was not to attend the school premises.
11. On 23 August 2018, investigators conducted further interviews with other students.
12. By letter dated 21 August 2018, the applicant was suspended from duty and was directed to undertake non-teaching duties pending the outcome of an investigation by the EPAC. The applicant supplied a medical certificate and did not attend for duties. The investigation related to alleged inappropriate contact and improper comments with students. The applicant was directed to not have contact with the complainant and not attend the grounds of the school.
13. On 19 December 2018, the applicant was arrested and charged. He declined to participate in an electronically recorded interview.
14. The applicant was then suspended from duty without pay effective from 7 February 2019 and his name was temporarily placed on the list of people who are not to be employed ("NTBE") in any capacity by the DoE. The NTBE list is a confidential database and those persons who are placed on the list are ineligible for employment by the DoE in any paid or voluntary capacity.
15. In a determination by the Workers Compensation Commission dated 16 August 2019, the applicant's claim against the DoE for psychological injury resulted in the applicant being awarded a weekly payment of $2,003. The basis for the claim was that the applicant suffered a psychological injury as a result of having been assaulted by KA on 10 August 2018 and that he was not supported by the school in his notification of the assault to police. The claim did not turn on any unreasonableness in the treatment of the applicant following the complainant's disclosure of the 2016 incident. The determination recognised that the DoE had "little alternative but to move the alleged assailant off the school grounds and did so quite appropriately". The applicant's psychological injury was diagnosed as an Adjustment Disorder with Mixed Depression and Anxious Mood.
16. On 31 January 2020, the applicant was found guilty of the Trigger Offence.
17. Having been found guilty of the offence, the applicant became an unauthorised person pursuant to s 93R1(a1) of the Teaching Service Act 1980 (NSW). As a consequence, pursuant to s 93T of that Act, the applicant was dismissed as a member of the teaching service. He was advised of his dismissal by letter dated 1 February 2021. He was also advised that his name had been permanently placed on the NTBE list. The DoE confirmed, in an email to the Children's Guardian on 4 October 2022, that the applicant's name remained on the NTBE list.
18. He was sentenced on 15 July 2020 to 12 months imprisonment with a non-parole period of 4 months. We understand he was granted bail and did not serve any time in prison.
19. On 4 February 2021, the applicant's appeal was successful in the District Court and his conviction was quashed.
20. On 20 May 2021, the AVO against the applicant for the protection of the complainant was revoked.
21. Notwithstanding that his conviction was quashed and the AVO was revoked, we understand that the applicant's name remains on the NTBE list.
22. Although the applicant has stated that he is too ill to work, he has also expressed a desire to return to teaching, possibly in a Christian school, and would require a clearance.

Object of the Act

1. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3: 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.

Paramount consideration

1. The paramount consideration in the operation of the Act is set out in s 4: 4 Safety, welfare and well-being of children to be paramount consideration 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.

The Tribunal's jurisdiction is protective, and not punitive

1. Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act is protective, and not punitive, in nature: DAI v Children's Guardian [2017] NSWCATAD 308 ('DAI') at [8]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 ('AYU') at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 ('CYY') at [26].
2. The protective jurisdiction of the Act was emphasised in CXZ v Children's Guardian [2020] NSWCA 338 ('CXZ') per Simpson AJA at [58]: "It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children."

Definition of "children", "child abuse" and the meaning of "risk to the safety of children"

1. "Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years".
2. The words "child abuse" appearing in s 4 above are not defined in the Act. The Tribunal stated in BFX v Children's Guardian [2014] NSWCATAD 115 at [29] that the words would be aptly described as "maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence".
3. The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]: "One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…"
4. His Honour's consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children's Guardian [2018] NSWCATAD 28 at [30]; BKE v Office of Children's Guardian [2015] NSWSC 523 ('BKE') at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ per Basten JA at [26].

Child-related work requires a WWCC clearance

1. Under s 8(1) of the Act, a worker must not engage in child-related work unless the worker holds a clearance. A worker who is subject to an interim bar must not engage in child-related work: s 8(2) of the Act.
2. Work that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work is defined as "child-related work" for the purposes of the Act: s 6(1) of the Act.
3. In order to work as a teacher, the applicant requires a clearance.

The Tribunal's function

1. The Tribunal must determine what the "correct and preferable" decision is: s 63(1) of the the ADR Act. In determining an application, the Tribunal exercises all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (in this case, the Children's Guardian): s 63(2) of the ADR Act.
2. However, in exercising those functions, the Tribunal must not simply "stand in the shoes" of an administrator. The Tribunal does not conduct a review of the Refusal Decision. The Tribunal reviews the application for clearance 'de novo' (meaning 'afresh' or 'again'). As explained in DYH v Public Guardian [2021] NSWCATAD 136 at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator's decision: "The effect of these two subsections is sometimes characterised as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 ('YG') at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77."
3. The Tribunal has regard to the material before it, including material that may not have been before the Children's Guardian, and the applicable law: YG at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children's Guardian [2015] NSWCATAD 91 at [14].

The Tribunal can determine its own procedure

1. The "guiding principle" to be applied to practice and procedure with respect to proceedings in the Tribunal is set out in s 36 of the NCAT Act. That principle is stated to be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
2. Section 38 of the NCAT Act provides that the Tribunal can determine its own procedure in relation to any matter for which that Act or the procedural rules do not otherwise make provision.
3. Parties to proceedings in the Tribunal are under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: s 36(4) of the NCAT Act.

What orders the Tribunal can make

1. The Tribunal may make orders that include an order to affirm the Refusal Decision or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration: s 63(3) of the ADR Act.

Mandatory risk assessment triggered by Schedule 1 matters

1. Under s 14 of the Act, a person is subject to an "assessment requirement" if any of the matters specified in Schedule 1 apply to the person.
2. Schedule 1 of the Act sets out the circumstances that trigger an assessment requirement with respect to offences that are specified in clause 1 of Schedule 2 (Disqualifying Offences). The relevant sections of Schedule 1 and Schedule 2 are set out below: "Schedule 1 - Assessment requirement triggers 1 Offences (1) Proceedings have been commenced against a person - …, or (b) 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." "Schedule 2 - Disqualifying offences 1 Specified offences (1) The following offences are specified - ... (e) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O or 61P of the Crimes Act 1900, …".
3. In this case, clause 1(1)(b) of Schedule 1 of the Act applied to the applicant's circumstances with respect to an offence which is specified in clause 1(1)(e) of Schedule 2 of the Act, triggering a mandatory risk assessment. Specifically, proceedings had been commenced against the applicant for the alleged offence of indecent assault contrary to s 61M of the Crimes Act 1900 (NSW). The applicant was an adult at the time of the alleged offence and, at the time of the assessment, he was no longer a disqualified person.

Matters that the Children's Guardian may consider in undertaking an assessment

1. In making an assessment, the Children's Guardian may consider the matters set out in s 15(4) of the Act.
2. If the Children's Guardian is not satisfied of risk based on the s 15(4) matters alone, the 'reasonable person' and 'public interest' tests set out in s 15(4A) of the Act must be considered: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination.
3. If the person fails either the 'reasonable person' or the 'public interest' test, clearance will not be granted.

Mandatory matters for the Tribunal's consideration under s 30(1) of the Act

1. In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below: 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 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, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary.

Further considerations under s 30(1A) of the Act

1. In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.

First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test

1. The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26].
2. The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 ('VQB') at [36], the Tribunal held that an objective test was called for by the legislation: "… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a 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."
3. The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said: "In order to properly consider this test, a 'reasonable person' would need to know about the disqualifying offence, the circumstances surrounding the offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him."

Second limb of the two-part test under s 30(1)(b) - the "public interest" test

1. The second limb of the two-part test is referred to as the "public interest" test. The notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question."
2. Accordingly, in proceedings under the Child Protection (Working with Children) Act 2012, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.
3. When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 ('ZZ') per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]: "In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others."
4. The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75].
5. If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children.

The approach to fact finding and the assessment of risk

1. In recognition of the protective jurisdiction of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal is bound to follow the decision in BKE at [33] when assessing risk: "Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
2. The approach to fact finding as explained in BKE at [33] has been approved by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 at [34]-[45] and in CXZ per Simpson AJA at [57]: "The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children."
3. Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].
4. A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison: "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless"."
5. In determining the application, the Tribunal is required to consider "the totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before it: CYY at [69]-[71].

Civil standard of proof

1. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is, on the balance of probabilities, and not the criminal standard: CFW at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.
2. Because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of a complaint have been proved, as per Dixon J. in Briginshaw at [362]: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
3. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. However, s 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence. Therefore, strictly speaking, neither the Briginshaw civil standard (having the particulars of a complaint proved to the reasonable satisfaction of the Tribunal) nor s 140 of the Evidence Act 1995 applies directly in decision-making by the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41.
4. In summary, the general accepted approach is that when deciding whether the evidence is sufficient to meet the civil standard of proof, the Tribunal will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.

Consideration

1. In closing submissions, arguing the principle of 'double jeopardy', the applicant voiced his strong objection to being 'prosecuted' again for the Trigger Offence in connection with his application for clearance. We wish to clarify a number of important matters.
2. First, the applicant's conviction for the Trigger Offence was quashed by the District Court, and he cannot be tried again for that criminal offence.
3. Second, this Tribunal is tasked with determining whether the applicant poses a risk to children. In assessing that risk, we consider the proceedings against him for the Trigger Offence and allegations made against him for his conduct towards and around children.
4. Third, when considering allegations against the applicant, this Tribunal applies the civil standard of proof (i.e. on the balance of probabilities), subject to having regard to the Briginshaw principle. The civil standard is a lower threshold to meet, unlike the criminal standard (that the offence is proven beyond reasonable doubt) which applied in the proceedings in the Local and District Courts with respect to the Trigger Offence. We note this, in particular, since the applicant's written submission and closing oral submissions suggested, erroneously, that the Judgment which quashed his conviction was made on the civil standard of proof. Her Honour did not reject or disbelieve the complainant but found there was sufficient doubt concerning some matters (which we note below) and therefore it was not possible to uphold the conviction as a matter that was "beyond reasonable doubt".
5. Fourth, in evaluating the evidence before us, it is not necessary to find that the offences or the alleged conduct occurred. Applying the rationale in BKE (approved by the Court of Appeal in Tilley and CXZ), it is sufficient to conclude that it is possible that the alleged conduct occurred before then proceeding to consider whether the applicant poses a risk to the safety of children.

Mandatory considerations in s 30(1)(a)-(k) of the Act

1. In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act.

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: s 30(1)(a)

1. We deal first with the Trigger Offence. We then consider the conduct of the applicant with respect to allegations against him of a sexual nature, and allegations of a non-sexual nature, all of which preceded the Trigger Offence.

(1) Trigger Offence

1. The material before us included a transcript of the sentencing hearing in the Local Court on 15 July 2020, a transcript of the District Court appeal hearing on 22 January 2021 and a copy of the District Court Judgment handed down on 4 February 2021.
2. The hearing in the Local Court proceeded over three days between 29 and 31 January 2020. There is no transcript of those proceedings. The applicant entered a not guilty plea and did not give evidence.
3. The Magistrate found the offence to be a serious matter, and one that involved both some pre-planning as well as being opportunistic. The applicant was convicted and sentenced to a term of 12 months' imprisonment with a non-parole period of four months. We understand that he was granted bail and did not serve any term of imprisonment.
4. The appeal in the District Court was heard on 22 January 2021. The applicant gave evidence, denying the allegation. The witness evidence was given by recorded interviews which Harris DCJ watched but were not recorded verbatim on the transcript. Her Honour made specific references to the evidence of the complainant and two witnesses and the manner in which they gave their evidence in their police interviews. Her Honour also made very clear Findings.
5. The District Court Judgment contains the following summary of the allegation: "The complainant gave evidence that on a day in the fourth school term in 2016, the [applicant] asked her to stay behind after class. Four of her classmates asked if she wanted them to stay with her. She told them, "No," and that she would meet up with them in the bathroom. After the other students had left the classroom, the appellant checked her work and as she packed her books away he closed the classroom door. He returned to where she was seated an grabbed her legs around to her buttocks. She was in the corner of the room and was backed into the corner. She tried to get up and push him away. He pulled her towards him. She told him to stop and put her hands up but he hit her hands away. He started to remove her skirt, which was fastened with a button and a zip. She said he may have broken the button as he pulled at her skirt. He zipped it down and pulled it off completely. She said "get away" but he pulled her back and started trying to take her tights off, pulling her tights down. People were heard moving and/or talking outside the classroom and the [applicant] let go of her and left the room. She dropped to the floor where she stayed for ten minutes. She then ran to her friends in the bathroom crying. She told them, her four school friends, including her friend GK, that she had fallen down the stairs in order to explain her distress."
6. Whilst the complainant did not disclose the alleged incident to family or friends contemporaneously, her Honour noted that it is not uncommon for a victim of a sexual offence to disclose it in a piecemeal way.
7. The complainant's evidence was that she had another geography lesson with the applicant the following day and that he did not talk to her or go near her. That lesson was the last class that the complainant recalled having with the applicant as her teacher in 2016, because he left the school and did not return until 2018. She said that upon his return to the school, the applicant approached her at an outdoor sport session and asked how she was and where she lived. This, apparently, scared her, and she went back inside the school and was crying. She told her boyfriend (KA) that the applicant had touched her in Year 7 and she did not like it. She apparently did not disclose the incident which was the subject of the Trigger Offence more fully to her boyfriend until the following school term, during a conversation with him and another male friend ("JY").
8. The date on which the alleged indecent assault occurred is not precisely identified. The complainant believed the incident occurred in the middle of the fourth school term in 2016. However, the applicant was on leave due to a workers compensation claim from 26 August 2016 until mid-2018. This fact was heavily relied upon by the applicant in his defence. The District Court Judge took this into account when assessing the reliability of the complainant's evidence. Her Honour noted that the allegation related to an incident two years earlier and that the complainant may have been genuinely mistaken about the timing.
9. Her Honour also took into account the brazen nature of the alleged offending in circumstances where the risk of being discovered was real, and accepted that the evidence of the complainant in respect of the particulars of the touching during the incident was by and large consistent and not shaken in cross-examination.
10. Her Honour also considered a perplexing aspect to the evidence involving the creating of a fictitious identity by the complainant, which may have been used as a "slow release valve" for the complainant's disclosure, but overall it left her Honour with a degree of unease. Nonetheless, her Honour was of the view that the complainant's disclosure to her boyfriend (KA) and JY was consistent with her evidence in Court.

Background to student's assault of the applicant precipitating disclosure of the Trigger Offence

1. As previously noted, the complainant's boyfriend had assaulted the applicant on 10 August 2018. In his interview with police, KA referred to the complainant's allegation against the applicant but at that point in time, KA did not know the full details of the allegation. KA's hand-written account on the day of the assault included a statement that the applicant had been "reported before about creeping among the girls in class and harassing them". KA stated that the applicant "shouts and orders us like dogs" and that he "hovers over us which makes us all extremely uncomfortable". He described his own actions, stating that he had been working alone in a workbook as directed by the applicant while his laptop was charging. He said the applicant wouldn't leave him alone so KA started swearing at the applicant and then was walking out of the classroom as he had been directed. The applicant wouldn't move so the student bumped into him and pushed him.
2. Four other students in Year 10 provided hand-written reports about KA's assault of the applicant. One student ("AA") described the class with the applicant as being "another obstacle to overcome" because of the "disrespect, bullying, harassing". AA said the applicant was aggressive with KA to a point where KA "couldn't take it anymore and swore at him and threw a pen at him and slapped his back and went outside".
3. Another student ("BH") described the applicant's body language as being "extremely aggressive" and stated "the way he screams at us and points at us is extremely violent".
4. Another student ("JS") stated "This incident was caused because of the teacher being really aggressive" and added "Whatever happened today I think it would've happened anyways in future but it might have been some other student".
5. Another student ("YC") stated "This incident was caused by the build up of emotion in [the applicant's] class." He further stated "[The applicant] intimidates every single individual in the room with his body weight, voice and hand gestures" and "This incident was not just caused from one lesson rather every single lesson leading up to it as well. The consistent torment from this teacher has caused most of the students in the class to revolt (sic) geography".
6. KA's assault was clearly regarded as being entirely inappropriate conduct, warranting a police caution. We note however, that the assault may not have been entirely spontaneous or unprovoked, and appears to have resulted from a build up of antagonism in the classroom. A common thread in the witnesses' accounts is that the applicant behaved aggressively through his language and body movements by being close to students, standing over them and pointing in their faces.

Applicant's defence arguments

1. The applicant contended that the complainant's allegation against him was completely false, and had been fabricated as 'pay back' for the applicant wanting to press charges against her boyfriend.
2. However, that contention does not offer an explanation for the complainant's initial disclosure to KA before KA's assault on the applicant. Indeed, the material before us demonstrates that KA's assault on the applicant was partly driven by KA's knowledge of what the complainant had told him.
3. As noted in the District Court Judgment, KA disclosed in his police interview that the applicant had been "touching one of his female students inappropriately". Once KA made that disclosure in his police interview, an investigation by a Joint Investigation and Response Team ("JIRT") followed, with the complainant and other students being interviewed, and not as a result of a disclosure initiated by the complainant. Indeed, the District Court Judgment noted that, if it had not been for KA's assault on the applicant, the complainant may not have disclosed the alleged indecent assault incident to authorities. We also understand the complainant was reluctant to disclose the matter to anyone, including the principal of the school or the police.
4. The applicant's sworn evidence in the District Court was that he did not assault or touch the complainant in any way. He denied that he had asked her to stay back after class. His evidence was that he had never, ever touched any part of her body with any part of his body and that none of the things she alleged, had happened.

Conviction quashed

1. Harris DCJ was not satisfied to the criminal standard of proof that the applicant committed the offence charged. Accordingly the conviction and consequent orders of the Local Court were quashed.

District Court Findings that the allegations were not baseless

1. However, Judge Harris stated that she did not find that the allegations were baseless. In her ultimate reasoning, she was left with a "level of suspicion": "While I retain a level of suspicion as to the guilt of the [applicant], notwithstanding his evidence of prior good character, I am left with a reasonable level of disquiet in respect of the allegation."
2. Her Honour acknowledged that some of the complainant's evidence was not so impressive, but accepted the complainant's evidence of the incident as having the "ring of truth": "I accept that the evidence of the complainant in respect of the particulars of the touching during the incident the subject of the charge was by and large consistent and not shaken in cross-examination. Her evidence in that respect and the related hand gestures seen in her JIRT interview of the [applicant] batting her hands away did have the ring of truth."
3. The evidence of another student ("GK") who witnessed the applicant paying particular attention to the complainant in class, was found to corroborate the complainant's evidence to a significant extent. Based on an assessment of the manner in which GK gave evidence in a JIRT interview, her Honour stated: "Having regard to the tendency evidence, I am satisfied that it is likely the [applicant] on occasions intentionally touched the complainant's leg with his hand when he was assisting her with her class work. The complainant's evidence is corroborated to a significant extent by GK, who witnessed the [applicant] paying particular attention to the complainant in class, getting very close to her and placing his hands in a manner providing the opportunity to touch her in the manner the complainant described. GK's observations of the complainant's body language and anxiety when the appellant was checking her work and the complainant's reluctance to go to geography class provide further support for the tendency evidence of the complainant. This generalised touching was the subject of the initial complaint by the complainant to her boyfriend."
4. On the strength of the evidence, Harris DCJ was satisfied that: "...it is likely the [applicant] on occasions intentionally touched the complainant's leg with his hand when he was assisting her with her class work."
5. Her Honour found: "It is likely that [the applicant] had a sexual interest in the complainant and that he acted upon that interest by touching her knee and inner thigh in an opportunistic way in the classroom."
6. Further, her Honour's referred to the brazen nature of the alleged offending in an environment where there was a high risk of detection: "I have also taken into account the particularity (sic) brazen nature of the alleged offending, including pulling off the complainant's school skirt and trying to remove her tights when she was physically resisting him when there were, on the complainant's account, students or teachers passing by the classroom".

DCJ records

1. In considering the evidence, we have had regard to the DCJ records. On 15 August 2018, the complainant's mother contacted the DCJ after a conversation with the school principal and subsequently attended the local police station with the complainant to report a series of incidents that were alleged to have occurred between 2016 and 2018. The complainant participated in an audio visual interview with JIRT on 17 August 2018.
2. DCJ records described the complainant as being "withdrawn, scared and crying" during her interview with police. She asserted that when she asked for assistance in her geography class, the applicant would "lean over her, place a hand on her shoulder and then place the other on her thigh … and then start to slide his hand along her inner thigh towards her groin area". She said that she was not sure if anyone else saw the assaults as he would approach her from the side and place himself between her and another student and then begin the assault. The complainant asserted that the assaults began in Term 2 and continued until Term 4. She told police that she did not report the assaults to anyone because she was scared of what people would think of her.
3. The indecent assault was described as follows: "[The complainant] said that in term four [the applicant] asked her to stay back after class. [The complainant] said that [the applicant] shut the classroom door and started touching her thigh and buttocks underneath her skirt. [The complainant] said that she was backed up against the wall and asked him to stop and attempted to push him off her however he hit her hands away. [The applicant] undid her skirt and pulled the zipper down so her skirt came off and attempted to take her tights off by pulling them downwards however stopped when they heard someone outside the classroom."
4. The complainant stated that the first time she saw the complainant in 2018 was when he approached her in the school playground and asked questions about where she lived. She said she immediately became "scared and uncomfortable". Since the applicant returned to school in 2018, the complainant had not attended geography classes and was avoiding school. She said that she had only told her boyfriend (KA) who was then in Year 10.
5. Another DCJ record noted that the complainant's friends were interviewed as witnesses and said they had seen the applicant going close to the complainant and they saw him put his hand on her leg a lot of times. One witness ("GK") who gave evidence in the criminal proceedings observed the applicant going close to the complainant a lot of times and said that he kept his hand right next to her leg and when she moved her leg, he would also move his hand. GK noted that the applicant came close to the students and said that a lot of girls complained about the applicant doing that. She also observed that "he just looks at girls a lot, like really weirdly". GK said in her interview: "he used to explain a lot he used to just come so close to her and then it looked really bad, and I don't know how she felt. It looked like she was pretty scared, coz she used to breath (sic) heavily at the time but then even she got confused like why is he doing it. Most of the times we have seen him doing it."

Applicant's evidence in Tribunal hearing

1. The applicant's oral evidence in the proceedings before this Tribunal was that he had never touched or even looked at the complainant. He denied the alleged offence. He denied that he had a sexual interest in the complainant. He rejected her Honour's Findings and insisted that he was telling the truth. He agreed that it would not be appropriate to touch a student on the leg. When asked whether he had considered mitigation strategies to behave appropriately around teenage girls, the applicant stated "I do behave appropriately" and "I have always behaved appropriately".

Tribunal's finding

1. We regard the offence as being at the higher end of seriousness, since it involved an act of indecent assault of a child aged 12 by an adult who was in a position of authority over her.
2. The applicant's 'blanket' denials and reliance upon the fact of having his conviction quashed as evidence of his innocence, fail to address the District Court Judge's Findings, which are damning to the applicant on the subject of risk.
3. Having regard to the brazen nature of the alleged offending in circumstances where the risk of detection in the school environment may well have been high, it is likely that the applicant had a sexual interest in the complainant and acted upon it opportunistically, yet with some pre-planning.
4. We share the same disquiet that the District Court Judge spoke about in her Findings. On the balance of probabilities, we are satisfied that the Trigger Offence occurred. This disquiet is strengthened by the totality of the evidence that other students gave about the applicant's inappropriate and predatory conduct towards young girls under his authority (discussed below).
5. We give this finding a substantial amount of weight in assessing the applicant's risk.

(2) Other allegations of a sexual nature against the applicant

1. In the period from 2008 to 2016, prior to the Trigger Offence, a number of allegations were reported to DCJ about other serious and inappropriate conduct by the applicant in the classroom.
2. In June 2016, two female students were removed from the classroom for being rude to the applicant and were required to talk about the incident with the Deputy Principal of the school. The girls asked "Why doesn't the teacher get into trouble for checking us out and touching us and getting boner (an erection) in class". The girls were asked to write a statement. Additionally, 13 other randomly selected students were asked to provide statements. The information collected referred to the applicant standing physically close to students and touching them inappropriately, as well as reports that he touched his genitals in class or had an erection. One student wrote: "He gave weird paedo looks/smiles and last lesson I was giving him attitude and he said ooh [name of student] you never gave me attitude before I like it."
3. Another student wrote: "…We all think he is a paedo because they (sic) way he looks, flirty smiles he gives us …"
4. Yet another student wrote: "sometimes when we are in class, our teacher [applicant] tends to flirt with the girls and also touches students. He sweared (sic) in class yesterday and said what the fuck are you doing. He also touches his rude part … and touches other people".
5. Further reported comments from different students are set out below: "…sometimes he gets too close to [girl's name] and it is weird. [The applicant] also has boner in class when he (sic) around [girl's names]. [Girl's name] wanted to report him but I think she's afraid. The way he talks is weird because he only does it to the girls and [girl's names] hate and grossed out." "He always has a creepy look. Asks personal questions like is it that time of the month…he invades my personal space …" " while I was in his class, he asked personal questions do I have my period. Is it that time of the month. He's always giving weird and unusual looks. Being in his class always gives me weird vibes, feelings, invades certain girls' privacy". "[The applicant] hovers the students and puts his arms over them. He gets boner in class and every one notices it…He makes the girls feel uncomfortable and he's been doing this since last year and it's really inappropriate." "most of the time me and my friends have personal conversations. We catch him starring (sic). Sometimes he listens and tries to join in with our conversations. He invades our personal space. Sometimes he gives people dirty and creepy looks and sometimes gets a boner and disgusts just about every one in class…" "I catch him starring (sic) at my classmates. Sometimes I also feel he tends to get very close to me and my friends when we are talking to him about our work. He leans over the table when he speaks to us and invades our privacy."
6. Another female student who is not identified by name in the material before us reported in early 2017 on the applicant's conduct in February to May 2016. The student ("Anon") alleged that the applicant had begun to touch her on her back and shoulder when she asked him for help. She also alleged that the applicant sometimes deliberately pushed her pen or pencil onto the ground, and then, when picking up the pen, would drag his hand on her leg. This made her feel "extremely uncomfortable and sick to the stomach". She had avoided attending his class and stopped asking him for help. This student, who was 13 at the time of the incident, asserted that some of her girl friends told her they had had similar experiences with the applicant.
7. In a JIRT interview on 8 October 2018, when the complainant's disclosure was being investigated, Anon was interviewed. She maintained her assertion that the applicant had touched her legs in 2016 and that he gave her detention and would then shut the door and stare at her legs. She said she then attempted to cover her legs with her jacket.
8. Under cross-examination, the applicant said that he had not seen the material outside these proceedings. He rejected the allegations as being false. He denied "all allegations", saying they were not true. When asked whether his focus was on girls, he answered that he did not focus on students based on gender, and insisted the allegations were false.

Tribunal's finding

1. For contextual meaning, we note that the above reports were screened in DCJ records as ROSH (meaning "risk of significant harm") reports since the applicant's students had made multiple statements about him that indicated "possible grooming behaviours that appear to be directed towards female students specifically". Whilst the information did not relate to the applicant's own children, DCJ officers looked at whether the allegations warranted assessment of whether his own children were at risk of sexual harm. DCJ concluded that no immediate safety concerns were identified. In July 2016, DCJ noted discussions with the EPAC which confirmed that the applicant was still teaching at his normal employment and that there was not enough evidence to justify removing him from that position. It appears that, ultimately, after due consideration, DCJ acknowledged the risks, but noted there was no capacity to allocate to the matter, and it was closed under competing priorities.
2. On the material presented, we note there are no allegations that the applicant's children were at risk of harm.
3. From reading the DCJ reports, whilst the timeframe is close to the time of the complainant's indecent assault allegation, there is no evidence to connect the students' statements with the account of the complainant. There is no evidence that Anon knew the complainant. Her report was made before the complainant made her disclosure. The applicant's conduct, as described by Anon, is similar to the descriptions of other students that the applicant stared at them, made them feel uncomfortable, and touched their back, shoulders and legs.
4. The allegations have not been tested, and we note the applicant's denial of all allegations.
5. However, the volume of complaints from 13 students, disclosing similar accounts of sexualised and inappropriate behaviours, are supportive of the complainant's allegations of the applicant's predatory behaviour.
6. The behaviours described strongly suggest the likelihood that the applicant was sexually attracted to teenage girls and acted on that attraction opportunistically. The applicant's behaviour was threatening and psychologically harmful to students under his authority. The allegations suggest predatory behaviours that pose sexual risk to young teenage girls who were uncomfortable in the applicant's presence.
7. On balance, we find that it is likely the applicant engaged in the conduct as alleged. We consider the alleged conduct to be seriously inappropriate, particularly in the circumstances where the applicant is in a position of authority over impressionable and vulnerable teenage girls who were at risk of sexual and psychological harm. We give this finding a reasonable amount of weight in assessing the applicant's risk.

(4) Other allegations of non-sexual inappropriate behaviour

1. The material before the Tribunal includes details of other documented incidents involving the applicant being verbally abusive to students and using derogatory language towards, and about, students. The allegations became the subject of an EPAC investigation. Some of the allegations that were investigated are noted below.
2. In February 2010, it was alleged that the applicant threatened a male student with the words "If I was a kid, I'd beat the shit out of you" and swore at him. It was also alleged that the applicant had said in the ear of a student words to the effect: "do you know what a shanker is … watch your back?" The DCJ report noted that the word 'shanker' is street talk for 'stabbing'. The applicant denied the allegation. We note that, in his letter of 14 November 2022 to the Children's Guardian, the applicant also denied the allegations, and said they were false. The EPAC assessed the allegations as not meeting the threshold for a child protection response, but recommended that the incidents be progressed as a "misconduct" matter.
3. A memo from the school principal recorded that in February 2014, a student ("NP") filmed the applicant with her mobile phone because he was using profanities in a class of Year 10 students. Both the language used and the familiarity with which the applicant addressed the class (calling them 'bro') was cause for "extreme concern". The applicant also commented on a Muslim Principal who was regarded as a role model for his students, and made very disparaging comments about the school principal. The principal was seriously concerned that the applicant was able to have so much influence on "impressionable young Muslim students".
4. The matter was referred to School Safety and Security who advised that the teacher "should never be allowed in front of a class". The footage was also provided to the EPAC and the student was interviewed in April 2014. Another student ("PR") was interviewed in April 2014, describing the applicant as "hot headed" and that he used slang and swore in class as a method of being comfortable with students. He also described the applicant as becoming angry when coaching basketball teams and swore at them, saying things such as "What the fuck are you doing out there". Yet another student ("SR") was interviewed in April 2014, disclosing that the applicant acted as if he was their age and made people feel uncomfortable. Her account of the applicant's conduct after he discovered he had been filmed by a student was that he made a number of references to the incident with disparaging comments about the student: "… she recorded him in class because he was swearing and all that and she gave it in but [the applicant] found out and ever since then every single class he will refer to that and he'll say "Oh who's recording me today?" or you know he will just make inappropriate comments about her or she's a little bitch or whatever like that…" "He just always bags her out … and he says inappropriate things or she must've been touched when she was young … really rude things about her."
5. The same student (SR) also reported that the applicant "just always put some kind of swear word into what he's saying" as if it were said "unconsciously", and she didn't think it was acceptable. He used expressions such as "shut the fuck up" and other inappropriate language randomly, as if it was a normal conversation. Her description of the applicant was that "he's just that kind of laid back like he just thinks he's fifteen". Another student ("ME") described the applicant as "always angry" and swearing.
6. The footage was ruled inadmissible given the privacy issues and the manner in which the video was obtained, but it was recommended that the teacher be monitored by deputy principals in one lesson per fortnight to ensure that he was not swearing.
7. The school records contain numerous complaints by students in February 2014 that the applicant swore and used foul language "all the time" and that when he was angry, students become concerned. In March 2014, the applicant was alleged to have made improper comments in the presence of students on multiple occasions, using words including but not limited to: 1. "Shut the fuck up"; 2. "Stop being a dickhead"; 3. "Where the fuck were you?"; 4. "Get the fuck out"; 5. "My high school and primary life was fucked until I got to year 11 and 12".
8. The applicant denied that he routinely swore at students. He asserted that, on occasions, he used coarse language in a humorous context, to build rapport with students. The applicant explained the context of his comments about his own school life experience, as an attempt to identify with the students and build rapport with them so he adapted his language to be more consistent with theirs, making it more of a conversation. He did, however, concede in the EPAC investigation that his use of swear words was inappropriate.
9. The EPAC investigation was told that, during Term 1 of 2014, whilst conducting a Year 10 Geography lesson, the applicant made comments about a female Year 10 student that involved the use of the following words: 1. "She's a little bitch"; 2. "She must have been touched when she was young and that's what causes her to act like that when she's at school"; 3. "She's the Deputy's little bitch, because no matter what she does she doesn't get in trouble, but she can get me into trouble".
10. The applicant denied that he used those words on multiple occasions but acknowledged that he had described a student as a "bitch" to two other students. He acknowledged that it was totally inappropriate and apologised for his behaviour.
11. EPAC found there was evidence to sustain that the alleged conduct occurred, but the allegation that the comments were made on multiple occasions could not be sustained. The conduct was also found to more than likely be deemed inappropriate professional conduct.
12. In June 2014, the applicant was alleged to have referred to a Muslim student as a "terrorist", causing the student distress.
13. The applicant denied the allegation. He asserted that other students were referring to the Muslim student as being a "HK terrorist" (meaning a "Hard Cunt terrorist"). The applicant said he joined in the humour by saying "[student's name], your (sic) acting like a classroom HK terrorist, not wanting to do your work". The applicant said he was not implying that the student was a terrorist and was not making a racist remark. He apologised for his insensitive humour, and said he had not meant to offend the student.
14. EPAC sustained the allegation but found the conduct to be an isolated incident and noted that the conduct would more than likely be deemed inappropriate professional misconduct.
15. In a letter dated 12 August 2014, the applicant responded in writing to several allegations against him. Overall, he denied that he had called a student a "terrorist". He did not agree with some of the specific allegations made against him but he acknowledged that his conduct and comments were inappropriate and unacceptable. He cited a number of matters as mitigating factors for his conduct, including the stress he felt over his marriage separation, the death of his father in 2012 and the death of his mother five years previously. He asserted that those issues, along with financial and emotional stresses, impaired his professional judgment.
16. The EPAC investigation continued, with further interviews of two students ("AZ") and ("JA") on 11 September 2014, generally dealing with allegations that the applicant had called AZ a "terrorist". The student (AZ) became angry after being referred to as a "terrorist" by the applicant, and walked out of the class. The applicant, further, asked AZ's friend (JA) whether "the terrorist" would be coming back to classes. This incident was alleged to have occurred in Term 2 of 2014.
17. Under cross-examination before this Tribunal, the applicant acknowledged that his letter responding to the allegations had been prepared with the assistance of legal advice. His letter stated that he deeply regretted some of his conduct and recognised he had made an "enormous error" in not maintaining a professional distance between himself and his students. His letter stated, further, that he had relied too heavily on developing rapport with students using humour and sometimes rude remarks to deal with class room management issues which should be dealt with more formally and using the discipline procedures in the school. The applicant stated that he understood he had compromised his professional standards and that he must act more professionally, and change his teaching practices.
18. In a report dated 19 March 2015, the EPAC investigator resulted in the applicant being subjected to remedial action in the form of a period of monitoring for four school terms commencing at the beginning of Term 2 in 2015 and concluding at the end of Term 1 in 2016. He was also subject to a direction, requiring him to refrain from the following conduct:

• making insensitive and inappropriate comments to students
• swearing in the presence and/or hearing of students and to ensure his conduct met the standards outlined in the Code of Conduct
• engaging in any kind of behaviour that could be interpreted by students to be threatening or intimidating
• making inappropriate personal comments about students or colleagues in the presence and/or hearing of students.

1. In his letter dated 14 November 2022 to the Children's Guardian, the applicant's response to a question about what he had learned from the performance program indirectly blamed students and the culture of the school as matters that provoked him to use inappropriate language: "I learned not to use inappropriate language in my role as a teacher, regardless of the conduct of the students and the type of behaviour and culture that is condoned by school".
2. Under cross-examination in these proceedings, the applicant prevaricated when asked about his conduct which had been the subject of complaints addressed in the EPAC investigation. He said he did not agree with all of the allegations and relied upon his written response. He denied that he had called a Muslim student a "terrorist". He said he had apologised for swearing and had completed 12 months of being monitored. When asked why he had used foul language, the applicant said he had started to acclimatise at the school, but added that he should not have done it. A number of the applicant's responses under questioning simply referred to his written response.

Tribunal's finding

1. We find that the applicant demonstrated inappropriate and offensive behaviours as a teacher and a person in a role of authority over his students. The applicant has acknowledged that he failed to adhere to his professional boundaries as a teacher. His students were impressionable and vulnerable in the teacher/student dynamic and at risk of psychological harm caused by the applicant's threatening language and comments.
2. On the basis of the EPAC findings, and our own evaluation of the allegations, we have given a moderate amount of weight to our finding when assessing the applicant's risk.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

1. The Trigger Offence was the most recent conduct complained of and was alleged to have occurred in the second half of 2016, and so almost eight years have elapsed since that time. Other incidents complained of took place in the period from 2010 to 2016.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

1. The applicant was 42 years of age at the time that the Trigger Offence was alleged to have occurred (2016). He was 36 years of age when the earliest incident was alleged to have occurred (in 2010).

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: s 30(1)(d)

1. With respect to the alleged Trigger Offence, the complainant was 12 years of age (on the basis that the alleged conduct occurred some time either in Term 2 or Term 3 of the school year and before the applicant went on workers compensation leave from a date in August 2016).
2. The other victims of alleged incidents were students in Years 7 to 10 at the school and were likely therefore to be in the range of 12 to 16 years of age.
3. The complainant and other victims were students taught by the applicant and were therefore under the applicant's authority and power. This contributed to a reluctance by victims to disclose the applicant's conduct. As noted by the Local Court Magistrate, one of the victims had said "We discussed it but no one had the guts to do anything because he's a teacher".
4. The Local Court Magistrate noted generally the vulnerability of students vis-a-vis teachers, stating (with reference to evidence that students at the high school were reticent to report matters about a teacher): "That really lies at the heart of offences against children, particularly at school, particularly by teachers. Who do they complain to? How do they complain? They are vulnerable, they are under the authority of the teacher and also of the school, generally speaking, and at the same time it allows for these sorts of offences to occur but also for this particular complainant to be put in a situation where there is the tendency evidence that he would often stand very close to her, that he would touch her leg."

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(1)(e)

1. The age difference between the complainant and the applicant at the time of the Trigger Offence was around 30 years.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(1)(f)

1. The complainant was a student in Year 7 and the applicant was her Geography teacher. He knew she was a child. He also knew that the students he taught in classes from Year 7 to 10 were all likely to be under the age of 18 and, for the purposes of the Act, are children. They were all vulnerable, being under his authority and afraid to speak up because of his position of authority, and concern that they may not be believed.

The person's present age: s 30(1)(g)

1. The applicant is currently 50 years of age.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

1. The seriousness of the applicant's criminal history and his conduct since the Trigger Offence were discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

1. The likelihood of any repetition of the applicant's offending conduct is not easily assessed. This is because he has only worked as a teacher for a short period of time since the Trigger Offence, having been on an extended period of workers compensation between 26 August 2016 to mid-2018. He worked only briefly on a part-time basis in Term 1 in 2017, and then returned to teaching in July 2018. After being assaulted by KA on 10 August 2018 he took further leave with a workers compensation claim pending. We understand that the applicant has not worked in teaching since that time.
2. We do not have the benefit of an independent expert psychological or psychiatric opinion on the likelihood of the applicant repeating the various types of offending conduct that the complainant and a number of students have alleged.
3. However, the Medical Assessment Certificate dated 22 October 2019 issued after assessment of the applicant's degree of permanent impairment relevant to his workers compensation claim discloses information about his diagnosed psychological/psychiatric disorder and his prognosis for recovery. We consider this information has some bearing on our assessment of the likelihood of the applicant engaging in therapeutic counselling for the purpose of reflecting on the events complained of and gaining insight into the contribution that his conduct had on those events. Without reflection or insight into the circumstances which have caused conflict and offence, it is difficult for a person to apply strategies that will ensure their conduct and behaviours are arrested or ameliorated so as to avoid future similar circumstances.
4. We note that a consultant psychiatrist (Dr SS) opined the following: "…it is my opinion that [the applicant] has developed diagnostic criteria for an Adjustment Disorder with mixed Depression and Anxious Mood, chronic in duration. It is my opinion also that his symptoms have severely fluctuated and at times he has experienced symptoms consistent with a Major Depressive Disorder."
5. Further, in the opinion of the Workers Compensation Commission's Approved Medical Specialist (Dr JB), the applicant's prognosis for recovery was expressed in terms that it was more probable than not that he will remain symptomatic for the forseeable future. This assessment took into account that [the applicant] had received psychiatric and psychological treatment from his medical team and had reported no resolution in his work-related injury that had become a permanent psychiatric impairment. Dr JB opined: "The longer an individual suffers from psychiatric symptoms the more likely that individual's symptoms will ever enter full remission. [The applicant's] symptoms had persisted for more than one year. It is more probable than not that he will remain symptomatic and unable to function in his substantive role for the forseeable future."
6. The Medical Assessment Certificate noted that the applicant had attended a clinical psychologist but said that he could no longer afford that treatment on an ongoing basis. We understand from this statement that the applicant is not committed to reflect upon his behaviours and their contribution to aggressive, offensive exchanges with students such as those that have been consistently reported. Instead, he presented as a person who is not prepared to accept responsibility for his own conduct, preferring to deflect blame onto other parties.
7. For completeness, the Local Court's Magistrate's comments on the likelihood of rehabilitation in circumstances where the applicant denied the offence are worth revisiting. His Honour was asked to consider the prospects of the applicant's rehabilitation since he did not actively participate in his interview with the Department of Community Corrections ("the DCC"). He refused to sign a release of information to enable the DCC to verify any of the matters that he reported about. It was submitted on behalf of the Crown that the psychologist who provided a case note report to the DCC that the applicant's continued denials and unwillingness to engage in addressing his offending could limit the available intervention options and that it was appropriate to be guarded on the prospects of rehabilitation
8. The Magistrate noted that the applicant was entitled to continue to deny the offences and that it was likely the matter would be appealed. However, his Honour also said that it was very difficult to assess the prospects of rehabilitation and the likelihood of repetition of any offending conduct, in light of the applicant's plea of not guilty: "I certainly note he maintains his plea of not guilty (sic) is certainly his right, I am not going to punish him for that. It makes it very difficult to assess prospects of rehabilitation. Certainly he did not really engage with Community Corrections but that is his right when you deny the offence. There is nothing more he can do than say, "But I didn't do it". So it would be quite ludicrous for him to engage in a whole lot of counselling and therapies acknowledging a problem in relation to sexual interest with young people when he denies the offence. So I think his prospects for rehabilitation are somewhat guarded and that is all I will say about it."
9. In his submission to the Children's Guardian dated 27 July 2021, the applicant did not address aspects of his behaviour that caused him to have remedial action imposed upon him for four school terms. Instead, his submission levelled criticism at the school principal, colleagues and students. The overall thrust of his submission was that he was bullied and harassed in the workplace and that the complainant was pressured to make her allegation after the applicant pressed for her boyfriend to be charged for assaulting him.
10. In his closing submissions, the applicant's level of emotional distress was apparent, in stating that he had been handcuffed and sat for four hours in the dock, facing possible incarceration for four months. We acknowledge that the distress that the applicant has suffered is likely to be a protective factor against the applicant repeating any past conduct.
11. However, there is no evidence before the Tribunal to indicate an attitudinal shift or insight by the applicant, or acceptance of his accountability. On the evidence, we cannot be satisfied at this point in time, that the applicant will not repeat his offending conduct.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

1. The Tribunal understands that there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

Any information given by the applicant in, or in relation to, the application: s 30(1)(j)

1. The key arguments made on behalf of the applicant are set out earlier in these Reasons. We now consider them in light of the evidence presented.
2. The applicant's submission that the DoE had colluded with the Children's Guardian in order to gain an advantage in his civil damages case is a very serious allegation to make. It is not supported by any evidence to which we can afford any weight, and we therefore do not accept the submission as having relevance to our determination.
3. The applicant also asserted that the Children's Guardian had deliberately delayed making a decision until one month before proceedings in the District Court concerning his civil claim. As we understand the applicant's submission, it was suggested that the Children's Guardian, the District Court and the DoE had worked in concert together, to the applicant's disadvantage, in his civil claim. He appeared to rely upon an email from the District Court Registry to the applicant and a number of legal practitioners dated 12 February 2024 advising a timetable for District Court proceedings. The applicant's assertion of corrupt conduct and/or collusive behaviour as the basis for denying him a clearance is, again, a very serious allegation to make. As argued by Counsel for the respondent in closing submissions, there is no evidence that the Children's Guardian was aware of the District Court proceedings at the time of determining the applicant's request for clearance. Further, to the extent of any allegation of collusion, the District Court and the Children's Guardian are two separate departments, operating independently and not in synchronicity. We make the same comment with respect to the DoE.
4. The applicant's submission is not supported by any evidence and has no legitimate basis. In any event, it is not relevant to the fundamental issue of assessing whether the applicant poses a risk to the safety of children.
5. In another submission, the applicant asserted that the principal (who is now deceased) of the school had engaged in conduct involving embezzlement of funds that resulted in her ultimate dismissal. Although we cannot be certain, it appears that the applicant sought to criticise the Children's Guardian for placing any reliance upon material produced under the leadership of the principal whose reputation the applicant sought to besmirch, to decide that he posed a risk to the safety of children. The applicant failed to provide any evidence in support of his assertions. The material that he handed up during the hearing described the school principal in positive terms. The applicant failed to argue any cogent connection between his unsubstantiated assertions about the principal and the Children's Guardian's Refusal Decision. On that basis, we have dismissed the applicant's submission on this aspect since, in our view, it has no relevance to our determination.
6. The applicant attempted to rely upon his own workers compensation claims as evidence that the DoE presents the "true risks of harm". We accept that the applicant has suffered psychological injury as referred to in the Medical Assessment Certificate issued in connection with his workers compensation claim. However, we otherwise disregard his obscure submission as having no bearing on our assessment of the applicant's risk to the safety of children.
7. The applicant's submissions about the deceased Principal of the school were equally obscure and of no relevance to the issue to be determined by this Tribunal. The submission, however, does lead us to conclude that the applicant has not reflected upon his conduct that caused him to be the subject of a number of complaints and investigations. Rather than demonstrate insight into his behaviours and take responsibility for them, the applicant tends to deflect blame onto others, and his submissions about the deceased Principal exemplify that approach. We have therefore disregarded his unsubstantiated submission. It has no bearing on our assessment of his risk to the safety of children.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

1. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

Any other matters that the Children's Guardian considers necessary: s 30(1)(k)

1. The Refusal Decision set out the matters that the Children's Guardian took into account as at 11 July 2023, to be satisfied that the applicant poses a risk to the safety of children.
2. In concluding oral submissions, it was argued on behalf of the Children's Guardian that the only way to find that the applicant poses no risk is to find that the applicant did not engage in opportunistic touching of his students.
3. It was submitted that the complainant's evidence in the Local Court, corroborated by two other female students (although they were not witnesses to the actual assault), and the allegations of 13 other students describing strikingly similar conduct by the applicant, weighs heavily against making such a finding.
4. We accept the Children's Guardian's submission that there is no evidence before us that the applicant would take a different approach in the future, having regard to his blanket denials, and his failure to express or demonstrate insight into the impact of his conduct upon students under his authority. Additionally, there is no evidence of rehabilitation or mitigation strategies to be applied in his future approach or behaviour. Indeed, we note that the applicant asserted in his oral evidence that he had always behaved appropriately, all the time.

Overall evaluation of risk

1. In deciding the application, the protective jurisdiction of the legislation towards children is our paramount consideration.
2. On the totality of the evidence, we are left with an overwhelming level of disquiet about the applicant's sexual interest in the complainant and possibly other teenage girls. On the balance of probabilities, we are satisfied that the Trigger Offence occurred. Accordingly, applying the reasoning in CFW, that finding has a "decisive impact" against the applicant such that we have determined that he does pose a risk to the safety of children.
3. The applicant has not demonstrated insight into the impact of his conduct as a teacher upon his students who are impressionable and vulnerable. His conduct escalated from using inappropriate offensive language directed at students and about students, to allegations of unwanted touching and indecent assault in the classroom. The applicant used his position of authority in a teacher-student dynamic to take advantage of the power imbalance and place multiple students at risk of sexual and psychological harm.
4. We are also of the view that the applicant has acted inappropriately and at times aggressively towards students generally, treating them with disrespect and instilling fear in some. In his mis-guided attempts to build rapport with students, he failed to recognise the need for appropriate boundaries to be respected in the teacher/student dynamic. His bullying and harassing language and behaviours towards students placed multiple students at risk of psychological and emotional harm.
5. The applicant continues to be defensive, and deflect blame onto other parties. There is no evidence before us that the applicant has genuinely reflected upon his offending conduct or engaged in rehabilitation. We therefore cannot be satisfied, on the evidence, that he will not repeat his offending conduct.

Conclusion

1. On the totality of the evidence, we conclude that the applicant poses a risk to the safety of children and should not be granted a clearance.
2. In light of the conclusion reached, it is not necessary to consider the reasonable person and public interest tests in s 30(1A)(a) and 30(1A)(b) of the Act.

Orders

1. The decision of the Children's Guardian dated 11 July 2023 to refuse to grant the applicant a working with children check clearance is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 28 August 2024