Kardash v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2022] VCAT 60

The respondent's decision to give the applicant a Working with Children negative notice (deemed to be a Working with Children exclusion under the Worker Screening Act 2020) is affirmed.

1 This is a decision under the Worker Screening Act 2020 (Vic) (the Act) about whether Ms Sally Jane Kardash, formerly a teacher, should be given a Working with Children (WWC) clearance or a WWC exclusion.

2 The Act replaces the recently repealed Working with Children Act 2005 (Vic) and provides for the screening of those who work with or care for children, and those employed or engaged in risk assessed roles under the National Disability Insurance Scheme.

3 Ms Kardash has applied to VCAT for review of the respondent's decision, made on 22 September 2020, to give her a WWC negative notice under the previous legislation, which is treated as a WWC exclusion under the current Act, for the purposes of my decision. A WWC exclusion prevents her from engaging in 'child-related work'.

4 The relevant purpose of the Act for a decision about a WWC document is in s 1(b) of the Act:

to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children.

5 'Child' means a person under 18 years of age.[1]

6 In making my decision, the paramount consideration for me is set out in s 11 of the Act and reflects that purpose:

When the Secretary or VCAT makes a decision or takes an action under this Act in relation to an applicant for a WWC check or the holder of a WWC clearance, the protection of children from sexual or physical harm must be the paramount consideration.

7 The dictionary definition of 'paramount' is 'more important than anything else, supreme'.[2] It has been judicially interpreted as 'overriding'.[3]

8 Ms Kardash's teaching registration has been cancelled. She does not expect to return to teaching.[4] Her current goal is to pursue work in disability services and her hope is to retrain as a therapist focussed on helping others navigate trauma and loss. In the short term, however, she has been asked to provide a WWC clearance by several organisations, including a market where she had a cake stall. She understands she also requires it to participate fully in some of her voluntary work.

9 As an aside, for the purposes of the Act, work is not child‑related work by reason only of occasional direct contact with children. It must be a specified activity and usually involve direct contact with a child. The definition of 'child-related work' is in the Appendix to these reasons as explanation. Rather than routinely asking for WWC clearances, there is a need for employers and other organisations to have a clearer idea of what is 'child-related work', and so understand when a WWC clearance is actually required.

10 Ms Kardash's application for WWC clearance is a 'Category C' application, by s 64(1)(e) of the Act, because she is a person:

(e) who has at any time been charged with an offence specified in clause 2 of Schedule 5 if the charge has been finally dealt with other than by way of a conviction or a finding of guilt.

11 In May 2018, Ms Kardash was charged with the offence of 'sexual penetration of a 16 or 17-year-old child under care, supervision or authority'.[5] The alleged conduct took place in 1993. She was found not guilty of the charge in February 2020. She admitted the sexual penetration, but, although the child was a student at the school where she taught, the prosecution did not prove that the child was 'under care, supervision or authority.

12 VCAT's task on a review of a decision by the respondent on a Category C application is set out in s 108 of the Act. Under s 108, there are four questions that must each be determined favourably to the review applicant, for a WWC clearance to be given:

• The first is whether, in the particular circumstances, it is appropriate to refuse to give a WWC clearance having regard to the 10 matters in s 65(2) of the Act, set out later - (s 108(1));
• The second requires VCAT to be satisfied that a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and, if not satisfied, to refuse to give the WWC clearance - (s 108(2)(a));
• The third requires VCAT to be satisfied that the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children; and, if not satisfied, to refuse to give the WWC clearance - (s 108(2)(b)); and
• The fourth requires VCAT to be satisfied, in any event, that it is in the public interest to give a clearance - (s 108(3)).

13 The charge related to an act of sexual penetration (not in dispute) with a 16-year-old boy, at an end-of-year-12 students' party in 1993. Ms Kardash was 27 at the time and taught years 11 and 12. The boy was a Year 11 student at the school where she was a teacher (the school). There was no evidence that Ms Kardash had taught the boy, although there was a prospect that she would teach him in the following year.

14 The party was a private party, organised by a group of year 12 students, and attended by around 200 students from different schools in the locality. It was not an official school function. Ms Kardash attended without being expressly invited. She was, however, accustomed to 'partying' with students, drinking and taking drugs in their presence.

15 In her 2017 interview with police, she said she had spent the day drinking with year 12 students. She was drunk at the party. She had seen the boy around but otherwise did not have a prior relationship. She kissed the boy a few times, each time initiating the contact. She told police she thought he might be '15 or 16'. At some point, they went outside and had penetrative sex. Other students at the party knew about it and some may have witnessed it. There was no evidence that anyone reported it to school authorities.

16 Ms Kardash herself told another student about it (the former student), a few days after the party. She told police she laughed about it with him. She also had sex with that former student in the following months. He had just finished year 12 and moved into her house for a few months. She was friends with his parents and with him. She had also been his teacher. Ms Kardash told police she and the former student had sex twice while he was living there. He was 18.

17 While this additional conduct did not constitute a criminal offence, the respondent relied on it in its submissions about the risk Ms Kardash poses, as well as the fact that this information was not known to the psychologist who provided a report in this case, or to one of her character referees.

18 Ms Kardash left the school, and teaching, in 1994, taking a voluntary departure package.[6] She said she was burnt out, dealing with drug and alcohol issues, and suicidal thoughts. The boy left school in March 1994. It is not clear why.

19 In 1999, he committed suicide by overdose and died, aged 22.[7] Ms Kardash told me that she did not believe and was not concerned that what had happened between them had anything to do with his death.

20 The fact that Ms Kardash and the boy had sex at the party became known to one of the students who organised the party (the complainant), who was a friend of the boy. She made a complaint to police in 2016. She told police that she was motivated by the fact that she and others had learned Ms Kardash was again teaching at the school.

21 In 2017, Ms Kardash received a call from the complainant.

22 At the time of the complainant's call in 2017, Ms Kardash did not know that police were already investigating the matter, and that the call was a recorded 'pretext call', made at the request of police. The transcript was in evidence.

23 In the call, the complainant told Ms Kardash that the 1993 incident was going to come up again. The complainant said that a group of her friends were concerned about Ms Kardash being a teacher at the school because they had children starting or at the school, knew about what had happened in 1993, and did not feel their children would be safe if she was still teaching there. The complainant said that her work as a youth worker had made her reflect on what had happened.

24 Ms Kardash told the complainant that she would speak to a solicitor and go to police, which she did. She also stepped down from teaching. She agreed she would not want police to come to the school, and said it was time to confront what she described as the 'last skeleton in the closet'. She described the call as 'karma'.

25 In her interview with police, Ms Kardash admitted that she had sex with the boy, who she thought was '15 or 16'. She told police that, at the time, she had been going through drug and alcohol and suicide-related issues and was 'grasping at anything that had feeling'. She was, she said, 'really lost', but she is not that person now.

26 In the criminal proceedings, Ms Kardash denied that the boy was under her 'care, supervision or authority' at the relevant time. It is not otherwise a criminal offence for a 27-year-old to have consensual sex with a 16-year-old. It would have been a separate child sexual offence if he had in fact been 15, as she thought he might be when she went to police. I note, however, that a 16-year-old is still a child as defined in s 3 of the Act.

27 There was no evidence available that she had taught the boy. The principal issue in the 2020 trial was therefore whether the prosecution could establish that essential element of the offence.[8] It was not able to do so.

28 The jury found her not guilty. I note here that, although the evidence did not meet the criminal standard of proof for the required element of the offence, it is open to me to take the circumstances and context into account in assessing the nature and gravity of her conduct, and its relevance to child-related work.

29 I refer in more detail later to a relevant call Ms Kardash made to the complainant in 1999, shortly after the boy concerned had died. The complainant told police that Ms Kardash had called her the next day and said she needed to tell the complainant that he did not kill himself because of her (Ms Kardash). Ms Kardash told me that she had called the complainant to tell her to stop saying to people that he had killed himself because of what happened with her.

30 Ms Kardash gave evidence before me. Two witnesses gave character evidence on her behalf. A psychologist gave evidence about his assessment of her risk. The Tribunal Book included the transcript of the 2020 criminal trial, the statements and other material provided by Ms Kardash to the respondent in the course of its consideration of her WWC clearance application, and relevant material from the Victorian Institute of Teaching (VIT). Both sides made submissions.

31 After careful consideration of the evidence and submissions, I have affirmed the respondent's decision. My reasons are set out in detail later, under the framework required by s 108.

32 This case, like many in this jurisdiction, was not straightforward. I am mindful that the conduct under consideration occurred almost three decades ago. Ms Kardash returned to teaching in the late 1990s and, on the face of the evidence, taught without incident for over 17 years. The conduct occurred in a period of her life when, she says, she was impacted by past trauma, and impaired by drugs and alcohol, with a lack of respect for herself. She recognises that she made a terrible mistake and is ashamed. She says that becoming a Buddhist and years of work on her issues have made her a very different person. One of her referees, who has known her since 1991, agrees that she is now a very different person.

33 The paramount consideration for me, however, is the protection of children from sexual or physical harm.

34 At the conclusion of the evidence, I retained a concern about Ms Kardash's insight into the nature and gravity of the conduct, the potential impact of it, and her personal responsibility for it. In summary:

• Much of her evidence was about herself, her past issues, and her subsequent self-development. There was very little in her various statements or her evidence that acknowledged or even recognised the potential impact of her conduct on the boy (or other students), and the harm that could be done.
• Overall, she gave an impression of indifference to what might have been the impact on him. She told police that when she learned of the boy's later suicide, she did not feel any emotion, other than an 'inclining to gratitude' because he would no longer be around.
• Nor was I satisfied that she recognised, even now, the nature and importance of her personal responsibility as a teacher towards the boy, and more generally towards other students at the school.
• In her statements and evidence, she maintained that there was a culture at the school of teachers mixing socially with students. She saw her own conduct in drinking and 'partying' with students as consistent with that culture and sought to put some responsibility on the school. In one statement, she said that:

In 1993 I blurred the lines of relationship, so too did the school and the interpretations they took in developing an adult culture to the senior campus. They too made mistakes which can be seen by the changes that have been made to redefine senior schooling.

• There was no other evidence that the school encouraged drinking, taking drugs, partying or sex with students, and there was evidence to the contrary.
• Although her former student had left school before she had sex with him, and was 18, he had only just finished school and she had been his teacher. She appeared blind to the problems with such conduct.
• I was concerned by her self-assessment that, 'I have never been nor will ever be a risk to children'. I asked her about this, to make sure I understood what she had meant in her evidence. She made some concessions, but I retained the impression that she still has not recognised that at the time, as an adult teacher who had sex with a 16-year-old student she thought may have been 15, she posed a risk to children. If she has recognised it, it has come very late.
• Finally, it concerned me very much that she said that she had never seen the boy as a victim, or as a child, even though, at the time she confessed to police, she believed that the boy may have been 15, and therefore underage. He was, in any event, under the age of 18 and therefore a child.

35 These are matters highly relevant to assessing the risk an applicant poses and their suitability for child-related work, where there has been serious sexual conduct against a child in the past. If they do not have sufficient insight into what happened in the past, there is a risk that they will again exploit a child, whether intentionally or not.

36 Ultimately, I was not able to be satisfied that Ms Kardash's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. Nor was I satisfied that a reasonable person would allow their child to have direct contact with her while she was engaged in child-related work.

The relevance of a charge of which the applicant has been acquitted

38 Generally, a person is entitled to the full benefit of an acquittal. Here, however, the statutory provision expressly displaces that entitlement. Parliament has determined that being charged with certain offences, including sexual offences against children, triggers a requirement for the respondent, and VCAT on review, to assess the application in a particular way.

39 As her Honour Judge Hampel observed in QPS v Secretary to the Department of Justice and Community Safety (QPS):[9]

Parliament, through the [Working with Children Act 2005 (Vic)], sets a very high bar for suitability to work with children if an applicant has been charged with sexual offences against children, even if, as was the case here, the charges were ultimately dismissed.

40 Although charges which are ultimately dismissed are not given the same weight as charges found proved, they are nevertheless given some weight.[10]

41 As explained further in BKE v Office of Children's Guardian and Anor [2015] NSWSC 523 at [33]:

[I]n a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT[11] 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.

42 Nor does it mean that the only matter to consider is the charge. The inquiry triggered by the fact of the charge is broader that the charge itself, as indicated by the mandatory framework applying to Category C applications.

VCAT's task on review of a Category C re-assessment: s 108 of the WSA

(1) In a review of a decision to give a WWC exclusion on a WWC category C application or in relation to a WWC category C re‑assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2).

(2) VCAT must determine that it is appropriate to refuse to give a WWC clearance unless VCAT is satisfied that -

(a) a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; or

(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

(3) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give a WWC clearance, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.

44 Section 108 (1) requires me to have regard to 10 matters, set out in s 65(2):

(a) the nature and gravity of the conduct and its relevance to child-related work; and

(b) the period of time since the applicant engaged, or allegedly engaged, in the conduct; and

(c) in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending; and

(d) in the case of an offence, the sentence imposed for it; and

(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct; and

(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it; and

(g) the applicant's behaviour since the applicant engaged, or allegedly engaged, in the conduct; and

(h) the likelihood of future threat to a child caused by the applicant; and

(i) any information given by the applicant in, or in relation to, the application; and

(j) any other matter that the Secretary considers relevant to the application.

Section 65(2)(a) - the nature and gravity of the conduct and its relevance to child-related work

45 The criminal offence Ms Kardash was charged with is a serious offence. As a sexual offence against a child, it is highly relevant to child-related work.

46 The conduct she admitted she engaged in, although not found to constitute a criminal offence, is nevertheless serious and directly relevant to child-related work. It is also relevant to assessing the conduct she engaged in that she thought the boy may have been 15 and therefore 'underage' for the purposes of the offence of sexual penetration with a child under the age of 16.

47 I agree with the respondent's submission that its seriousness was aggravated by the fact that Ms Kardash, as a teacher, was in a position of trust and had a duty of care towards the boy and other students at the school where she taught, whether she recognised it at the time or not. As she conceded under cross-examination, teachers are authority figures, they have authority and influence over the children at their school and they are in a position of trust.[12]

48 Ms Kardash concedes she gave no thought to the responsibilities she had as a teacher at the school, nor did she see the boy as a victim or a child. Instead, as I understand it, despite her age and position at the school, and the fact that she wasn't expressly invited to the party, she saw herself as purely a party-goer, as one of 'the crew' of year 12 students she considered her friends, entitled to make sexual advances to a boy who happened to be there; whose age she was not sure of but who she thought might have been 15; and whose interest 'flattered' her.[13]

49 The fact that she was drunk does not excuse the conduct, as she concedes. If anything, being drunk around students aggravates the gravity of the conduct. Nor is it a satisfactory explanation, in my view.

50 I agree with the words used by the Tribunal in XDU v Secretary to the Department of Justice and Community Safety [2021] VCAT 256 (XDU), at [39]:

The conduct was grave. Its relevance to child-related work is apparent - a person who wishes to work with children must always place the child's needs before their own. A person who works with children must always be alert to the impact of their own behaviour on children's wellbeing.

51 Ms Kardash placed great emphasis on her personal circumstances, and her personal issues, and showed little recognition of the impact of her conduct. As submitted by the respondent, resorting to sexual and inappropriate behaviour with children in response to stressful personal circumstances is reprehensible.

52 This factor weighs heavily against the application.

Section 65(2)(b) - the period of time since the applicant engaged, or allegedly engaged, in the conduct

53 The conduct took place 28 years ago. As conceded by the respondent, the length of time that has passed without apparent repetition of similar conduct (putting to one side the conduct shortly after with her former student) is a favourable factor, although it is not determinative. As discussed below, evidence of insight will also be relevant.

Section 65(2)(c) - in the case of an offence, whether a finding of guilt or conviction was recorded for it or a charge for it is still pending

54 Ms Kardash was found not guilty of the offence charged. There was no dispute that she had sex with the 16-year-old, but the jury was not satisfied that she was in a position of care, supervision or authority.

55 As observed in QPS, the fact of the charge has some weight, although less weight than a conviction.

56 Relevant to the weight that may be given to the charge in this case is that, unlike in cases where sexual conduct is denied and not proved, here the sexual conduct is admitted and has direct relevance to child-related work. The outcome of the criminal proceeding turned on a separate factual question.

Section 65(2)(d) - in the case of an offence, the sentence imposed for the offence

Section 65(2)(e) - the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct

58 The victim was 16 years old, a child for the purposes of the Act. Ms Kardash was 27. In combination with her status as a teacher at the boy's school, this factor weighs against the application.

59 I agree with the respondent's submission that there is an inherent power imbalance in the teacher-student relationship. Teachers are in a position of trust, care, authority, and influence in relation to all students in their school. Students are generally children who are vulnerable due to their age and immaturity. This power imbalance exists regardless of whether the teacher personally taught the student or not.

60 As submitted, in this case Ms Kardash - as the adult - breached this trust within the relationship, and instead of taking care of the child, participated in a sexual act with him.

Section 65(2)(f) - whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it

61 The offence with which Ms Kardash was charged has not been decriminalised. The conduct she engaged in remains a serious matter for a teacher.

Section 65(2)(g) - the applicant's behaviour since the applicant engaged, or allegedly engaged, in the conduct

62 As conceded by the respondent, the following circumstances are in Ms Kardash's favour:

• She has not been charged with any other offence since the 1993 conduct.
• She worked as a full-time teacher from 2000 until she voluntarily stood down from her position in 2017. There is no evidence of her conduct towards students being an issue during this time.
• She contributes to the community through her work at a local wetlands, assisting with funeral or committee events, including kitchen duties, cleaning, or front of house.
• She maintains that she has 'been able to navigate [her] way out of drug and alcohol dependence and also out of suicide and self -harm issues which plagued [her] through a significant portion of [her] life'. This is to her credit.
• It is apparent that her Buddhist training has helped her focus on moral conduct, meditation and wisdom. I note that the training has also led to self-forgiveness and self-respect. She has framed the events of the years since 2017 as 'karma'.
• Ms Kardash is seeing a counsellor. She also undertook psychotherapy with Dr Carmelo Scuderi for 12 sessions between March and June 2020. I say more about Dr Scuderi's assessment later.

63 In PPE v Secretary to the Department of Justice [2010] VCAT 485 at [70], the Tribunal took into account both the general behaviour of the applicant and his response to the offence.

64 As the respondent submitted, Ms Kardash only went to the police to make a voluntary statement in 2017, after learning from the complainant in the telephone call that the conduct in 1993 was likely to come out.

65 I disagree with the submission that she should not get credit for 'self-reporting' and consider that it took courage, and is to her credit that she took the step. She did not know that the complainant had already been to the police and the call was part of the police investigation. As far as she knew (because she believed the boy may have been 15), she was confessing to a criminal offence. On any view, her voluntary statement assisted the police and saved the need for evidence from former students to be obtained, an important matter where no statement could be obtained from the victim because of his death.

66 It must be said, however, that it otherwise took her 24 years to take any formal steps to bring the matter to the attention of either the police or the school.

67 She had already had a previous telephone conversation about what happened with the complainant in 1999, after the suicide of the boy (a young man by then), yet did not go to the police at the time.

68 As noted in the overview section of these reasons, the complainant told police that Ms Kardash had called her the next day to say she needed to tell the complainant that he did not kill himself because of her (Ms Kardash). Ms Kardash told me that she had called the complainant to tell her to stop saying to people that he had killed himself because of what happened with her. [14]

69 On both versions of that call, the subject was whether there was any connection between his suicide and what Ms Kardash had done. On Ms Kardash's version, there was already some gossip which she wished to stop.

70 There is no evidence that there was a connection, and I am not making such a finding. It was an earlier opportunity, however, for Ms Kardash to come forward - particularly as there was, she told me, an inquest at the time. She would have received a great deal of credit for doing so, before she returned to teaching at the school

71 Ms Kardash was adamant that there was no connection between what happened with her and his suicide. Nor did it apparently distress her. When asked by police if she had spoken to anyone about the suicide, she said:

And what did I feel, well, I have to be really honest in - in having an - not having any [pause noted] emotions or anything but having this inclining of thank you which is an awful thing to have an inclining of, but I did.

That he had died so he wasn't [going to] be around.

73 I say something here about some additional statements made by Ms Kardash in her written closing submissions, provided after the evidence had concluded. On the day of the hearing, there was insufficient time after the evidence concluded to hear oral submissions from the parties. Both provided written submissions; the respondent providing theirs first.

74 Ms Kardash's submissions contained a mixture of submissions on the matters required to be considered under the Act, commentary on the evidence, some explanation about what she had meant in her evidence, and some new evidence, in particular about the circumstances in which she went to the police and what she said to them, as well as her recognition of the impact of what she had done.

75 The respondent wrote to the Tribunal, contending that the Tribunal should not consider any submissions by the applicant, to the extent that she sought to clarify answers given under oath or rely on material not before the Tribunal at the hearing.

76 I took the view that her submissions could be considered, taking into account that Ms Kardash was self-represented, and that if she had been represented her evidence could have been clarified on re-examination, but:

• subject to providing an opportunity to the respondent to make further submissions or requests, for example for a short hearing (and the opportunity for further cross-examination on any new evidence); and
• subject to an assessment of the weight to be given to anything in the nature of new evidence.

77 With the applicant's consent, the respondent was granted leave to file and serve the police brief of evidence, which included the transcript of her interview with police, and the transcript of her call with the complainant in 2017 and made some further submissions.

78 I acknowledge that Ms Kardash has reflected further, since the hearing, about the risk she poses and the harm her conduct may have caused, including concerns on the part of others about the safety of their children. To the extent that Ms Kardash in her closing submissions introduced different evidence on these matters, however, I have given greater weight to her previous statements to the respondent and police and her evidence at the hearing including under cross-examination.

Section 65(2)(h) - the likelihood of a future threat to a child caused by the applicant

79 This important factor does not require that the Tribunal find, on a balance of probabilities, that the applicant is likely to pose a future threat. 'Likelihood' in this context means chance or probability. The Tribunal assesses the chance of a future threat of harm to a child and has regard to that assessment when making a decision under s 108.

80 As observed in Maleckas ('LKQ') v Secretary to the Department of Justice [2011] VSC 227 at [72]:

A chance of a future threat, irrespective of its magnitude, is a relevant consideration under [(h)]. Clearly, where the chance is minimal, the consideration may favour the applicant. The greater the chance, the less favourable is the consideration from the applicant's perspective.

81 In practical terms, it is for an applicant to persuade the Tribunal that they do not pose a future threat to children.

82 Evidence relevant to other factors will also be relevant here. I refer to without repeating the discussion about the nature and gravity of the conduct and its relevance to child-related work, and the further discussion above.

83 As discussed, there are matters in Ms Kardash's favour about her behaviour in the years since 1993 that are relevant to an assessment of future risk, including the fact that there is no evidence of repetition of the conduct in the years since.

84 Dr Carmelo Scuderi, psychologist, provided what was described as a 'brief psychosexual report'. On the face of it, his evidence was favourable, but there were limitations to it, discussed below.

85 Dr Scuderi is a clinical and forensic psychologist, and a psychoanalyst. He has extensive experience in making psychological assessments and providing expert evidence for Victorian courts, principally the Children's Court. In this case, he was not an independent expert. He gave evidence as Ms Kardash's treating psychologist. Ms Kardash was referred to him by her GP to help her. He was not asked to make a formal forensic assessment on the referral.

86 Dr Scuderi's report was based on 12 appointments attended by Ms Kardash between March and June 2020, the history as disclosed by her, and completion of a risk-assessment tool for sex offenders - STATIC-99R.

87 Dr Scuderi stated that he considered Ms Kardash to be in the 'low risk' category for sexual offending recidivism against children, with few of the risk factors known to contribute to sexual offending. He stated she has fully accepted responsibility for her behaviour and has no other criminal or sexual offending history; she accepted the police and court involvement; and 'now finds herself trying to re-establish a productive and satisfying working life'.

88 Dr Scuderi stated he would support her application for a WWC check.

89 There were several matters that reduced the weight of Dr Scuderi's opinion.[15] Some were acknowledged in the report. Others became evident under cross-examination:[16]

• Dr Scuderi did not have access to any documents about the case, including the full prosecution summary. His information about the events came from Ms Kardash. There were important gaps and inaccuracies in that history, described further below.
• He does not have expertise or experience in sexual risk assessments for women.
• He used a risk assessment tool that is relevant for male offenders but not recommended for female offenders. Many of the risk factors are gender specific.
• There are currently no risk assessment tools for female sex offenders, there is a lack of data, and less is known about female risk factors. There is research that suggests that recidivism is lower in women but due to the lack of data sample, it would be hard to say what the risk factors are. He acknowledged there was therefore an issue of validity of the assessment.
• He had incomplete or incorrect information about several of the factors he relied on to assess Ms Kardash as low risk:
  • He had 'a sense' that there was a familiarity with her victim, and it was not a random act (said to be relevant to the question of 'perversity'[17]). This is contrary to the evidence that Ms Kardash had seen the boy with others on occasion but otherwise had no pre-existing or post-sex relationship with him, and engaged in the conduct opportunistically because he showed interest in her advances.
  • He said that Ms Kardash seemed to have 'fairly normal and conducive personal and family relationships'. This is contrary to her evidence about childhood trauma; and drinking, taking drugs, and partying with students.
  • He did not seem to be aware of and did not take into account Ms Kardash's drug and alcohol use and her self-described mental health history when he reached his conclusion.
  • He was not aware of Ms Kardash's sexual relationship, shortly after the conduct the basis of the charge, with a former student who lived with her after finishing year 12.[18]

90 In the circumstances, I am unable to give more than limited weight to Dr Scuderi's assessment of Ms Kardash's risk.

91 In assessing the likelihood of future threat, I have had regard to the assessment of the VIT, in September 2020, that Ms Kardash is an 'unacceptable risk to children and the suspension[19] of her registration is necessary to protect children'.

92 The VIT makes its decision under different but inter-related legislation, with the same protective focus and information-sharing obligations between the two regulators.

93 Unsuitability to teach children, because of risk, is obviously relevant to an assessment in relation to child-related work more generally.

94 I also share the view of the VIT that the second sexual relationship, with the former student, is a relevant matter. I acknowledge that the 18-year-old was no longer her student, but that was only by a matter of days or weeks.

95 In my view, it indicates that the conduct at the party was not a one-off or isolated example of failing to understand and observe professional boundaries and obligations, including to refrain from sexually exploiting the power imbalance in the teacher-student relationship.

96 As the VIT stated, the combination of conduct indicates a pattern at the time of inappropriate, intimate, and overly familiar conduct with students.

97 Two character witnesses gave evidence for Ms Kardash and were cross-examined:

• Ms Pam Giles, a retired teacher, Community Visitor with the Office of the Public Advocate, and friend, who has known Ms Kardash for 30 years, and worked with Ms Kardash at the school; and
• Ms Wendy Rhodes, a farmer and close friend, who has known Ms Kardash for 12 years. They have worked closely in volunteer capacities with the Red Cross (after the 2009 fires) and in relation to a local wetlands project and catering at the local memorial hall.

• She had a high regard for Ms Kardash's professionalism, pedagogy, discipline, interaction with and care for her students.
• The case was brought against Ms Kardash after she 'self-reported to police even though her memory of the situation was very unclear and there were no witnesses to the alleged event'.
• The incident occurred in very different times, when Ms Kardash was a young, inexperienced teacher.
• In the time Ms Giles has known her, Ms Kardash has been on a search for meaning in her life. Finding Buddhism as a more mature person has helped her reflect very deeply and honestly on her situation.
• Ms Kardash's struggle with chronic pain leaves her with few work options. The court case and uncertainty about her future options have taken a 'huge toll' on her mental well-being, and her financial position.
• She was an 'amazing, creative teacher with a gift for engaging her students, young or old'.
• Based on her personal dealings with Ms Kardash, she believes that any behaviour she displayed so long ago as a young, inexperienced teacher, in an alcohol fuelled social situation, would never be repeated, especially given her strong Buddhist beliefs and life experience.

99 Ms Giles' evidence under cross-examination was, in summary:

• While there was more familiarity between teachers and students at the senior campus of the school, compared to the junior campus, she agreed there were still professional boundaries that should not be crossed by teachers in that relationship.
• There might be socialising with students who are are family friends or at sporting events, and it is a small community, but a teacher would not be drinking or doing drugs with students. A sexual relationship between a teacher at the school and a student at the school is a boundary that should not be crossed.
• So far as the school's expectations were concerned, drinking with students and taking drugs with them would not have been approved.
• While there were some 'male/female issues' and some historical cases, it was not expected or understood of teachers that they would have sexual relationships with students. There was not a culture of students and staff 'mingling'.
• She conceded she was not aware of Ms Kardash's socialising behaviour with students.
• Ms Kardash spoke to her in 2017 about the 1993 events, at around the time she went to police. Ms Kardash told her that:
  • She did not remember much about it - it was blurry due to the effects of drugs and alcohol.
  • It was an adult party. It wasn't a students' party. It was an older person's party that students had come to, and Ms Kardash had a sexual encounter of some kind. (Ms Giles got the impression there weren't many students there).
• She did not know that Ms Kardash had been drinking all day with the students.
• There was mention of having a sexual relationship with a former student shortly after this incident but not the specific details.
• After Counsel provided details, Ms Giles said that knowing of the relationship did not change the opinion expressed in her statement.

• Ms Kardash is a decent, hard-working person who is fully trustworthy and honest.
• She was shocked when told Ms Kardash had been denied a WWC permit as the events took place over 20 years ago, the persons in question were not being taught by Ms Kardash, and one has since passed away. The verdict came back not guilty as it should have.
• When told about the charges against her, Ms Kardash voluntarily took herself away from events where children would be.
• As a teacher of 20 years with an exemplary teaching record, it was hard for Ms Kardash to give up working with children.

101 Ms Rhodes' evidence in cross-examination was, in summary:

• Ms Kardash told her that the person concerned was not a student of hers, there had been a relationship that was not during school time, and the person was in his late teenage years.
• While the conduct, described in a summary from counsel, was inappropriate for a teacher, if the person is not teaching that particular person and she was pursued by him, she could not see that it was actually Ms Kardash's fault. Her understanding was that it was not Ms Kardash's fault, and that the alcohol was the problem.
• Ms Kardash did not tell her about another sexual relationship she had with a former student around the same time.
• After details were provided, she said that knowing the information does not change what she put in her statement.

102 The evidence of both Ms Giles and Ms Rhodes about Ms Kardash has weight in respect of the person they know from their own experience, but not in respect of assessing the nature and gravity of the conduct and the implications for future risk, for the following reasons.

103 I accept that both were doing their best to support their friend and were concerned about the implications for Ms Kardash if she did not receive WWC clearance. Based on what they knew of the circumstances, as told to them by Ms Kardash, neither thought it was fair that Ms Kardash should have received a WWC negative notice.

104 But in both cases, as submitted by the respondent, they had based their opinions on a version of the events that minimised Ms Kardash's responsibility, and omitted information that is important to an assessment of risk under the framework of the Act.

105 There were important gaps and inaccuracies in the information Ms Kardash gave them - about the exact circumstances (Ms Kardash was able to provide specific details to the police), the nature of the party (it was not an adult party, and few adults were there), the age of the other person (he was not in his late teenage years and Ms Kardash had thought he might be 15 when she had sex with him), who instigated the conduct (Ms Kardash pursued the boy), the details of the other sexual relationship Ms Kardash had with the former student; and other matters.

106 This is not a criticism of the witnesses. I accept that they gave their evidence in good faith, and genuinely did not believe that the conduct was Ms Kardash's fault. In considering the matters I must consider under the Act, however, the weight that can be given to their evidence about the risk Ms Kardash might pose to children is limited.

107 There is another aspect to this. While it may be in Ms Kardash's personal and financial interests to be able to work freely with children, and as her friends they may wish her to do so, that is not the primary consideration under the Act. Nor is assisting an applicant's rehabilitation.

108 As the Tribunal stated in XDU,[20] the WWC legislative regime is 'unashamedly' protective of children. And 'children' is defined to include 16 and 17-year-old teenagers, whatever individual perceptions might be of the maturity and responsibility of that age group.

109 Insight is highly relevant to an assessment of risk in this case.

110 As already stated, I have retained concerns about Ms Kardash's insight into the nature and gravity of the conduct, the potential impact of it, and her personal responsibility for it.

111 Much of her evidence showed self-absorption, focussing on what was happening to her at the time and what has happened since - on her circumstances at the time and the consequences for her. For example, in her evidence to me, she spoke of telling 'my sad story' to the police.

112 Some of this self-focus is understandable. In her evidence and submissions, Ms Kardash has described a hard journey to her present-day life, free of substance dependence and with a measure of peace. But there were nevertheless significant gaps in her insight and understanding.

113 Her 'inclination to gratitude' on learning of the later death by suicide of the boy is shocking and indicates indifference at the time to his welfare.

114 Her statements to the respondent and her evidence that she has never been a risk to children indicates a lack of insight and understanding into the nature of the conduct and the obvious risk she posed to the students around her in 1993, as does her evidence that she did not see the boy as a child and has never seen him as a victim.

115 When considering whether a person currently has the personal qualities and understanding required to be entrusted with child-related work, in the context of serious conduct against a child in the past, these are highly relevant defects of character and understanding, in my view. Taken together with the other matters of weight, they present a potential threat to children who may come into her care in the future if she engages in child-related work. I am not able to discount the future threat as 'minimal'. It is sufficient to constitute an unjustifiable risk.

Section 65(2)(i) - any information given by the applicant in, or in relation to, the application

116 The information provided by the applicant has been referred to in the sections above and is not repeated here.

Section 65(2)(j) - any other matter that VCAT considers relevant to the application

117 The following passage from Maleckas ('LKQ') v Secretary to the Department of Justice [2011] VSC 227 at [80] in relation to the equivalent provision under the Working with Children Act 2005 (Vic) indicates the matters that may be relevant under this heading:

Under s 13(2)(j) of the WWC Act, the VCAT is required to have regard to 'any other matter that [the VCAT] considers relevant'. In my opinion, the questions of whether the plaintiff has insight into his offence, has accepted responsibility for the offence and has demonstrated remorse are relevant considerations under s 13(2)(j). As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such an offence.

118 I refer to without repeating the discussion of insight above, the relevance of the fact that she was a teacher at the time she engaged in the conduct, and my conclusions in respect of Ms Kardash.

119 As indicated, I regard the assessment of the VIT as relevant.

120 Taking all the above matters into account, and mindful of the paramount consideration of the protection of children from harm, in my view it is appropriate to refuse to give a WWC clearance to Ms Kardash.

121 I must also consider the three further, related questions under s 108.

Section 108(2)(a) - whether a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work

122 This section requires that the Tribunal be satisfied that a reasonable person, with knowledge of all facts and surrounding circumstances, would allow their own child (not just a hypothetical child) to have direct contact with the applicant, when engaged in any type of child-related work.[21]

123 This is inevitably a more onerous test for an applicant, as observed in the case of OYJ:

As a matter of human nature people are more cautious and concerned about their own child, than about others' children.

The reasonable person is appropriately protective of their own child.

125 Moreover, if a reasonable person would allow their own child to have direct contact with the applicant in some areas of child-related work but not others - if the answer is 'it depends on what sort of child-related work' - the requirements of this section are not met.

126 The contact contemplated is direct contact, not indirect contact.

127 The test is an objective one. In VQB v The Secretary to the Department of Justice,[22] Vice President Judge Macnamara stated:

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.

128 Ms Giles, who has known Ms Kardash over 30 years, said she would not have concerns about Ms Kardash having direct contact with her children.

129 On the other hand, she had not received an accurate or complete account of the circumstances from Ms Kardash.

130 Similarly, Ms Rhodes had received incorrect information. Neither of them was aware of the content of Ms Kardash's statements to the respondent and to the police.

131 In contrast, there was evidence that students who were at the party in 1993 or learned of what had happened, and who had grown up to have children themselves at or about to start at the school, were so concerned about Ms Kardash having contact with their children that they wanted to go to the police, despite the passage of time.

132 The complainant, having become a youth worker, and a parent of a son, had reflected on the implications of what had happened, and again, despite the passage of time, felt it appropriate to go to the police.

• would have regard to the passage of time since the conduct, and the fact that Ms Kardash went back to teaching and did so without incident for 17 years; but
• knowing all the circumstances of the conduct, would have reasonable concerns about whether their child would be safe with Ms Kardash; and
• having considered the whole of the evidence, including the evidence about Ms Kardash's insight, her minimisation of her role and responsibility for the conduct, and her overall blindness to the seriousness of her conduct and its impact,

would not allow their child to have direct contact with Ms Kardash when engaged in any type of child-related work.

Section 108(2)(b) - whether the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children

134 A WWC clearance allows an applicant to engage in any type of child-related work, without restriction or condition.

135 This part of s 108 requires me to be positively satisfied that Ms Kardash's engagement in any type of child-related work would not pose an unjustifiable risk to children. The definition of child-related work in s 7 of the Act is appended and illustrates the range of work that is specified.

136 Appropriately, the Tribunal must consider risk not only in the proposed areas of work the applicant wishes to pursue but in any setting.

137 My focus is not therefore on whether Ms Kardash would pose a risk being at her cake stall at a market or working with other adults in the wetlands project.

138 Nor is it relevant that she does not plan to return to teaching. I have to consider whether she poses a risk as a teacher because child-related work includes work in an educational institution that usually involves direct contact with a child.

139 The conduct in this case occurred while Ms Kardash was a teacher, and directly concerned a student at the school where she taught. The assessment of the VIT that she would pose an unacceptable risk of harm to a child, although a different form of words, is relevant.

140 I refer to without repeating in detail my analysis of the likelihood of a future threat, which is directly relevant to this consideration.

141 For the reasons given, I gave Dr Scuderi's favourable assessment of risk low weight.

142 I retained concerns about Ms Kardash's insight, and found that, together with other matters of weight, there was a potential risk of harm to children who might come into her care if she engaged in child-related work.

143 As stated, I am not able to assess the risk of harm that Ms Kardash poses as 'minimal', or otherwise regard it as justifiable bearing in mind the paramount consideration under the Act.

144 I am not satisfied in all the circumstances that Ms Kardash does not pose an unjustifiable risk.

Section 108(3) - whether it is in the public interest to give the clearance

145 In Secretary to the Department of Justice and Community Safety v McIntyre,[23] Justice Garde confirmed the importance of the 'paramount consideration'[24] when applying the public interest test:

The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad, and it is not appropriate to seek to define the boundaries of the public interest, the paramount consideration - the protection of children from sexual and physical harm - is at the very core of the public interest test.

146 Even where the other matters under s 108 have been decided favourably to the applicant, the Tribunal may still not be satisfied that it is in the public interest to give a WWC clearance to an applicant.

147 Evidence that an applicant has skills that could benefit children, or that they are a positive role model for children, can be taken into account in favour of an applicant.[25]

148 Ms Kardash has experience and skills as a teacher which I take into account. On the other hand, her conduct occurred in the context of her role as a teacher.

149 Further, notwithstanding her time as a teacher since the conduct, I have decided each of the other considerations under s 108 unfavourably to her. In the circumstances, I am not satisfied that it is in the public interest to give a WWC clearance to Ms Kardash.

150 Having regard to my conclusions under s 108(2)(a), and under s 108(2)(b) of the Act, I must refuse to give Ms Kardash a WWC clearance. I am satisfied, in any event, under s 108(1), that it is appropriate to do so, having regard to the factors set out in s 65(2). And I am not satisfied that it would be in the public interest to give a WWC clearance.

(1) Subject to subsection (2), in this Act, child-related work means work -

(a) at or for a service, body or place, or that involves an activity, specified in subsection (3); and

(b) that usually involves direct contact with a child.

(2) For the purposes of this Act, work is not child‑related work by reason only of occasional direct contact with children that is incidental to the work.

(3) For the purposes of subsection (1)(a), the following services, bodies, places or activities are specified -

(a) child protection services;

(b) children's services within the meaning of the Children's Services Act 1996;

(c) education and care services within the meaning of the Education and Care Services National Law (Victoria);

(d) educational institutions;

(e) out of home care services, remand centres, youth residential centres or youth justice centres within the meaning of the Children, Youth and Families Act 2005 or probation services under that Act;

(f) refuges or other residential facilities used by children;

(g) accommodation services specifically provided for students in connection with the operation of a student exchange program under Part 4.5A of the Education and Training Reform Act 2006, including the provision by a person of accommodation in the person's home;

(h) paediatric wards of public hospitals within the meaning of the Health Services Act 1988 or of denominational or private hospitals within the meaning of that Act;

(i) clubs, associations or movements (including of a cultural, recreational or sporting nature) that provide services or conduct activities for, or directed at, children or whose membership is mainly comprised of children;

(j) religious organisations;

(k) baby sitting or child minding services arranged by a commercial agency;

(l) fostering children;

(m) providing, on a publicly-funded or commercial basis, a transport service specifically for children;

(n) coaching or tuition services of any kind specifically for children;

(o) counselling or other support services for children;

(p) overnight camps for children regardless of the type of accommodation or of how many children are involved;

(q) school crossing services, being services provided by people employed to assist children to cross roads on their way to or from school;

(r) providing, on a commercial basis and not merely incidentally to or in support of other business activities -

(i) entertainment or party services specifically for children; or

(ii) gym or play facilities specifically for children; or

(iii) photography services specifically for children; or

(iv) talent or beauty competitions for children;

(s) providing, on a publicly-funded or commercial basis, an in home care service for children.

(4) Subject to subsection (5) but despite any other provision of this section, for the purposes of this Act, work engaged in as a minister of religion is child-related work unless any direct contact with children during the work engaged in as a minister of religion is only occasional direct contact that is incidental to that work.

(5) Despite any other provision of this section, if a minister of religion is the appointed leader of a local religious congregation in an organised religious institution and the congregation contains any children, work engaged in as a minister of religion is child-related work.

(6) Despite any other provision of this section, a person is engaged in child-related work if -

(a) the person is a family member or other person of significance to a child other than a parent; and

(b) the child is placed in the out of home care of that person under the Children, Youth and Families Act 2005.

(7) For the purposes of this Act, a person is engaged in child-related work if the person is employed under Part 3 of the Public Administration Act 2004 in the administration of this Act.

(8) For the purposes of this Act, a person is not engaged in child-related work merely because the person -

(a) is participating in an activity with a child on the same basis as the child; or

An adult playing in a cricket team whether on a professional or amateur basis alongside a child is not engaging in child-related work.

(b) is supervising a child undertaking practical training as part of an arrangement or agreement under Part 5.4 of the Education and Training Reform Act 2006.

out of home care means care of a child by a person other than a parent of the child.

Section 19A of the Child Employment Act 2003 extends the application of this Act to the supervision of a child in employment that requires a permit under that Act as if the supervision were child-related work under this Act.

[2] Concise Oxford English Dictionary, 10th ed.

[3] Secretary to the Department of Justice v McIntyre [2019] VSC 105 at [80].

[4] The Victorian Institute of Teaching suspended her teacher registration in September 2020 under the Education and Training Reform Act 2016 (Vic), on the grounds that Ms Kardash posed an unacceptable risk of harm to children. Her registration was cancelled when the WWC negative notice was given.

[5] Section 48 of the Crimes Act 1958 (Vic) (Crimes Act) as in force at the time. The offence is now under s 49C of the Crimes Act.

[6] Ms Kardash returned to full-time teaching in 2000 and was re-hired to work at the school in 2002.

[7] The Police Summary for Ms Kardash's trial stated that he had had drug and mental health issues.

[8] Section 37 of the Crimes Act deems the following (as well as some other examples) to have a child under their 'care, supervision or authority': the child's parent or step-parent, teacher, employer, youth worker, sports coach, health professional or out of home carer.

[9] [2019] VCAT 477 at [7].

[11] New South Wales Civil and Administrative Tribunal.

[12] As an aside, I note that the definition of 'care, supervision and authority' in the Crimes Act for the purposes of the criminal offence specifies that the teacher must be the child's teacher. This does not prevent a teacher at the child's school having professional obligations and a duty of care to all students at the school, including a duty not to engage in sexual penetration with them, whether at or outside school.

[14] The complainant's evidence in the criminal proceedings; and Ms Kardash's evidence before me.

[15] Transcript references are omitted but are in the respondent's submissions.

[16] This is not to suggest that Dr Scuderi was anything less than candid about the limitations of his assessment. He readily conceded those limitations.

[17] Dr Scuderi explained this as acts committed which are generally antisocial. He said there wasn't a history in her relationships which suggested that there was an element of perversity to her behaviour.

[18] In cross-examination he said it would change his assessment 'somewhat slightly' but was not sure it would change his overall assessment. When asked if it would be more adverse to her, Dr Scuderi described it as 'a little tricky', presumed it was a consensual relationship, and said it would be hard to make a conclusive statement about that.

[19] The VIT matter did not proceed to a cancellation hearing. As I understand it, Ms Kardash's teaching registration was automatically cancelled when she was given the WWC negative notice.

[20] XDU v Secretary to the Department of Justice and Community Safety [2021] VCAT 256 at [30].

[21] OYJ v Secretary to the Department of Justice and Regulation [2019] VCAT 33 (OYJ). Also PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514.

[22] [2013] VCAT 789 at [36].

[23] [2019] VSC 105 at [83].

[24] Which was in s 1A of the predecessor Working with Children Act 2005 (Vic).

[25] Maleckas ('LKQ') v Secretary, Department of Justice at [90].