BPM v Children's Guardian

[2015] NSWCATAD 97

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BPM v Children’s Guardian [2015] NSWCATAD 97
Hearing dates:	15 April 2015
Decision date:	13 May 2015
Before:	J Anderson, Senior Member
Decision:	The decision of the Children’s Guardian dated 30 October 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
Catchwords:	Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal. In 1987 applicant charged with indecency towards a child – alleged victim was applicant’s five year old daughter – applicant found not guilty at trial – whether the applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2014 Commissioner for Children and Young People Act 1998 Civil and Administrative Tribunal Act 2013 Criminal (Sentencing Procedure) Act 1999
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BPM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Michael Jassy & Associates (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410647
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcasted without the leave of the Tribunal.

reasons for decision

1. The applicant, BPM, seeks review of the decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012 (the Act).

2. The applicant is 63 years of age. He seeks a working with children check clearance so that he can engage in community work, and which requires him to hold a working with children check clearance.

3. On 23 December 1987, the applicant was initially charged with having sexual intercourse, namely cunnilingus, with a child under the age of 10 years. The applicant was committed to stand trial in the District Court on that offence and an offence of indecent assault. Between 13 and 15 June 1989, the applicant stood trial in the District Court on the charges of Commit act of indecency towards person under 16 (2 counts) and Commit act of indecency towards person under 16 by person in authority, contrary to sections 61E and 66A of the Crimes Act 1900. Such charges arose from allegations that the applicant had engaged in sexually abusive conduct towards his 5 year old daughter.

4. On 15 June 1989, the applicant was found not guilty of the offences following a 3-day trial in the District Court.

5. On 12 September 2013, the applicant made an application to the respondent for a working with children check clearance. On 30 May 2014, the respondent notified the applicant that the offences for which proceedings had been commenced in the District Court had triggered the need for the respondent to conduct a risk assessment under section 14 and 15 of the Act.

6. The respondent completed the risk assessment, and on 30 October 2014, determined to refuse the applicant’s application for a clearance under subsection 18(2) of the Act (i.e. the respondent found that she was satisfied that the applicant poses a risk to the safety of children).

7. Being dissatisfied by that decision, the applicant made this application for review of the respondent’s decision.

The Child Protection (Working with Children) Act

8. The objects of the Act are as follows:

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

9. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse.’

10. There is no definition of “child abuse” contained in the Act. The Children’s Guardian, the respondent in these proceedings, is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of that Act which refers to child abuse as follows:

Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) The physical injury or sexual abuse of a child or young person, or

(b) A child or young person suffering emotional or psychological harm of such kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) The physical development or health of a child or young person being significantly harmed is,

Is guilty of an offence.

Maximum penalty: 200 penalty units.

11. The Child Protection (Working with Children) Act 2012 prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance (see subsection 8(1)). This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

12. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

13. The term ‘child-related work’ is widely defined in section 6 of the Act. Subsection 6(1) provides:

6   Child-related work

(1)  A worker is engaged in child-related work for the purposes of this Act if:

(a)  the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with children, or

(b)  the worker is engaged in work in a child-related role referred to in subsection (3).

14. Direct contact with children is defined in subsection 6(4) to mean physical contact, or face to face contact. Where a person is granted a working with children check clearance, that clearance authorises the person to work in any child-related work prescribed under the Act or the Child Protection (Working with Children) Regulation 2013.

15. Section 12 of the Act makes provision for two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work.

16. Section 13 makes provision for the manner in which a person can make an application for a clearance.

17. Section 18 sets out how the respondent is to determine an application for a clearance.

18. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a ‘disqualified person’ and the respondent must refuse that persons’ application for a clearance.

19. The applicant is not a “disqualified person” under the Act because Schedule 2 does not apply. The applicant has been acquitted of the offences with which he was charged, namely offences pursuant to section 61E and section 66A of the Crimes Act 1900. Accordingly, subsection 18(1) does not apply.

20. Subsections 18(2) and (3) apply to all other applications. These subsections provide:

18   Determination of applications for clearances

(1)  …

(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

21. Persons who are subject to a risk assessment are those to whom any of the matters specified in Schedule 1 of the Act apply: see section 14 of the Act.

22. The relevant provision in this application is clause 1.1(b) of Schedule 1, which relevantly provides:

…(1) Proceedings have been commenced against a person:

1. ….

2. 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 the proceedings a disqualified person”.

23. Subsection 15(4) of the Act sets out the matters the respondent may consider when undertaking a risk assessment.

24. Having undertaken a risk assessment under section 15, the respondent determined to refuse the applicant’s application for a clearance as she was satisfied that the applicant poses a risk to the safety of children: see subsection 18(2).

Role of the Tribunal

25. Section 27 of the Act makes provision for administrative review, by the Tribunal, of a number of decisions of the respondent, including a decision to refuse a working with children check clearance (see subsection 27(1)). That section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) …

(3) …

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

26. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children’s Guardian (see s 63 of the Administrative Decisions Review Act 1997.

27. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

28. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ[2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People[2002] NSWIRComm 101 at [130]

29. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

30. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38 and 67 of the Civil and Administrative Tribunal Act.

31. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.

32. In determining this application, the Tribunal has power to make the following orders:

63   Determination of administrative review by Tribunal

(1)  …

(2)  …

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

33. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are:

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 alleged victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the alleged victim,

(e) the difference in age between the alleged victim and the person and the relationship (if any) between the alleged victim and the person,

(f) whether the person knew, or could reasonably have known, that the alleged victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

(2) …

34. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“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."”

35. These remarks have been accepted to equally apply to the word ‘risk’ as it appears in the 2012 Act.

36. The main issue is whether, on the material before the Tribunal and the applicable law, it can be found that the applicant poses a risk to the safety of children.

Burden of proof

37. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164 at [32].

38. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

39. There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

40. The applicant has a duty to disclose all relevant material. (See section 27(4)).

41. Although the applicant has no legal burden he does have a practical or forensic onus (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53) and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.

42. The standard of proof in a criminal trial is “beyond reasonable doubt”, whereas in a civil matter and for the purposes of the risk assessment, the civil onus is “on the balance of probabilities” as modified by section 140(2) of the Evidence Act.

43. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account:

1. the nature of the cause of action or defence, and

2. the nature of the subject-matter of the proceeding, and

3. the gravity of the matters alleged.

44. In BJB v NSW Office of the Children’s Guardian (No 2)[2014] NSWCATAD 164, it was said:

“….it was observed that there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicant on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the CAT Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to ‘any’ material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997”.

Evidence before the Tribunal

45. The respondent tendered into evidence its correspondence with the applicant, its risk assessment report dated 5 September 2014, and various documents provided by the courts, the Department of Family and Community Services, the NSW Police Sex Crimes Squad, and correspondence from the applicant. The respondent relied upon the transcript of the committal proceedings in the Local Court. The respondent advised that, despite inquiries, the trial transcript of the District Court proceedings was not available.

46. The applicant relied on an unsworn statement dated 11 February 2015, as well as unsworn statements of his former wife, his daughter and his mother. He also relied on a video about the allegations which he made as part of his TAFE studies, and which he had submitted to the respondent for the purposes of the risk assessment. The applicant also relied upon a letter from his general practitioner dated 9 December 2014, various character references, and a risk assessment report, dated 27 February 2015, by Dr Katie Seidler, Clinical and Forensic Psychologist.

45. The applicant and Dr Seidler gave oral evidence at the hearing and were cross-examined by counsel for the respondent.

46. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

47. The Tribunal must consider the factors set out in section 30(1); and consider the factors the Children’s Guardian may consider as set out in section 15(4) of the Act, which are more aptly descriptive of the process than section 30(1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it appears appropriate to have regard to both sections 30(1) and section 15(4) considerations as required by both sections.

Seriousness of the matters that caused the refusal of the applicant’s application for a clearance

50. The matters which triggered the risk assessment by the respondent were the offences in respect of which criminal proceedings were commenced, namely, the offences of indecency towards the applicant’s five year old daughter in July 1987. During the course of the risk assessment, material was obtained that alleged the applicant had engaged in sexual abuse of the victim both prior to, and for a period of time after, July 1987.

51. According to the material produced by the respondent, on 17 July 1987 the alleged victim was staying at her maternal grandparent’s home in rural New South Wales. During the night, the grandmother went to the toilet and witnessed the applicant with his head between the legs of the child and his mouth on the genital area of the child, whose nightdress was up around her chest.

52. On 8 October 1987, the alleged victim’s grandparent (Mrs K) contacted the Department of Youth and Community Services, now known as the Department of Families and Community Services, (hereinafter referred to as “the Department”). Mrs K advised the Department that when her granddaughter would come to stay for the school holidays, the alleged victim’s vagina was bruised and irritated, and the alleged victim cried when it was dried with a towel. Mrs K said the alleged victim asked her whether she played “lick dick”. During the conversation, Mrs K said the applicant always lifted the child by pushing his hands between her legs. Mrs K said she confronted her daughter (the alleged victim’s mother and applicant’s wife) who accused her of being old fashioned and said “of course the child plays with his dick”.

53. As a result of the notification, the following day, Child Protection officers of the Department visited the applicant’s home where he lived with his wife and 2 young daughters. The applicant was not present. The applicant’s wife and the alleged victim were asked to attend the Royal Alexandra Hospital for a medical examination. During conversation with the Departmental officers, the applicant’s wife said she was aware of the allegations made by her parents and that she had spoken to her family doctor who had concluded that a medical examination was not necessary.

54. During the conversation with Departmental officers, the applicant’s wife was asked questions about the allegations and in particular, why her parents believed the applicant was fondling the alleged victim. The applicant’s wife said, “It’s only a game and they run around and he is pinching her wee wee”. In relation to the allegation of fingering, the applicant’s wife said that the applicant was “maybe tickling her on the wee wee”. In relation to the allegation of licking the vagina, the applicant’s wife said: “I’ve seen him kiss her on the bum, the crack. I’ve seen him blow raspberries on her bum. What’s wrong with that? He blows raspberries on her wee wee as well. It’s all part of our family”. When asked if the alleged victim had complained to her, the applicant’s wife said that the alleged victim gets stabbing sharp pains on her wee wee, which the applicant’s wife believed was caused by (1) the alleged victim falling off the top bunk and hurting herself between her legs, (2) the alleged victim’s eczema which causes itchiness and soreness, and/or (3) a catheter that was inserted when the alleged victim was 2.5 years old. When asked about “lick dick”, the applicant’s wife suggested the alleged victim learned it from the boy next door. The applicant’s wife said: “We just ignore it. She comes around showing herself”. The applicant’s wife displayed this by opening her legs wide and pushing out her lower pelvis, saying, “lick a dick”.

55. The alleged victim was interviewed by Ms Hayes, Social Worker at the Children’s Hospital, Camperdown. During the interview, the alleged victim said, “Daddy touches me on the wee wee. Daddy loves me when he does it. It’s part of the family”. The alleged victim told Ms Hayes that the touching happens in the shower, in her bed and in his bedroom. The alleged victim said that her father told her to come and sleep with him in the bed, and that her mother came in and said “don’t do that”. She also said she didn’t like it when her father touched her. She said she had told her mother that her father had threatened to hit her with a wooden spoon if she told anyone and her mother had said that her father was the one who should be hit with the spoon.

56. The alleged victim was then examined by Dr Booth, Paediatrician with the Child Protection Unit, who found that there was no sign of penetration of the victim. However, there was dark discolouration and thickening of the skin along the length of the labia majora and in the perianal area, consistent with the alleged victim’s account of fondling and touching. Dr Booth stated that neither the alleged victim’s eczema condition nor the wearing of a compression suit (Jobst suit) for severe burns the alleged victim sustained as a 2.5 year old would account for the impact on the alleged victim’s genital area, especially since the Jobst suit had not been worn by the alleged victim for some years.

57. Dr Booth and Ms Hayes discussed the findings with the applicant’s wife, who indicated that there was nothing wrong in the behaviour of herself or the applicant in touching and pinching the alleged victim’s vulval area and saw it just as a sign of affection. Dr Booth reported: “(the alleged victim) presents with a history of genital fondling and kissing by her father, extending over quite some considerable period of time, perhaps 1-1.5 years. The physical findings are consistent with prolonged and vigorous rubbing of these areas and are not the normal findings of self-masturbation. (The alleged victim’s) mother appears to have difficulty in accepting that this behaviour is more sexualised than normal physical contact within a family and was unable to see that this would place (the alleged victim) in danger of further sexual abuse, either by strangers or within the family. (The alleged victim’s) ability to set limits on her father’s behaviour appears to have been disregarded, though her mother did not appear to see this as a major problem. We were therefore very concerned about (the alleged victim’s) ability to protect herself from further abuse”.

58. On 13 October 1987, a complaint of ill treat under the Child Welfare Act 1939 was brought before the Yasmar Children’s Court, and for consideration of a Committal to Care Order. It was adjourned for hearing, and orders were made for supervision by the District Officer of the Department, and for assessments to be undertaken.

59. A report of the District Officer dated 23 November 1987 refers to several discussions she had with the applicant and his wife, during which the applicant disputed all the allegations and the medical findings from the examination. He denied touching the alleged victim on the vagina and anus except for the purposes of applying medication. The District Officer reported: “He stated that the last time he blew raspberries in the genital area and when she touched his penis was 18 months ago. This is contradictory to (the applicant’s wife’s) report who spoke in terms of these behaviours still occurring. He also stated that he has not pinched the child’s vulva for 18 months. (The applicant) stated he agreed with my advice that the behaviour towards (the alleged victim) was inappropriate and that it may affect her in the future. However, he added that it was not happening”.

60. On 22 December 1987, police attended the applicant’s premises and indicated they wished to interview the alleged victim. The applicant’s wife told police that the applicant was not at home and she had to speak to him and also to their solicitor. The Detective in attendance left contact details with the applicant’s wife. Later that day, the Detective was contacted by a solicitor who indicated that the alleged victim was not to be interviewed.

61. On 23 December 1987, the defendant attended the Sydney Police Centre with a legal representative in relation to the allegation that he was observed on 17 July 1987 with his mouth upon his daughter’s crutch. The applicant declined to participate in a police record of interview on the advice of his legal representative. The applicant was arrested and charged with the offence of sexual intercourse with a child under the age of 10 years.

62. The applicant was granted bail, however, as part of his bail conditions, he was not permitted to reside with the alleged victim in the family home. He subsequently moved in with his mother.

63. On 13 March 1988, a further hearing was held at the Yasmar Children’s Court, where a case was established. The family had not undertaken counselling or assessments as directed due to the unwillingness of practitioners/agencies willing to facilitate such sessions. Records indicate reasons for this reluctance or refusal included that the applicant and applicant’s wife continued to deny any abuse of the alleged victim.

64. On 24 March 1988, committal proceedings took place in the Local Court on the charge of sexual intercourse, and an additional charge of indecent assault. The transcript of those proceedings indicates that witnesses were called to give evidence and were cross-examined, including Mrs K, Miss Hayes, and the Detective Sergeant involved in the investigation.

65. Dr Booth gave evidence consistent with her report of 9 October 1987. She stated the findings of her examination of the alleged victim were consistent with frequent rubbing. She stated they were not consistent with eczema and the area was not a usual place for eczema. Nor was it associated with the burns the alleged victim had sustained when she was 2.5 years old, as they did not occur on the genital area. Dr Booth stated that the Jobst suit had not been worn by the alleged victim for some years and would not have accounted for the findings. Dr Booth said the only other case of the skin thickening and discolouration would be that seen in retarded children who wear nappies for a prolonged period of time, and anything that causes prolonged rubbing or touching or irritation of the skin. She also said that if a child had a long time of wearing very tight pants causing a rubbing of that area, this would be a possibility. However, in that scenario, Dr Booth would expect to see some redness, and in the alleged victim’s case there was no redness, just dark, thickened skin. Dr Booth also stated that the findings were not consistent with a child scratching that area of the body in irritation or masturbation. Nor were the findings consistent with medications bring rubbed into the area. When asked whether a child who scratches or rubs herself through their underpants or clothing would produce the sort of thickening and discolouration as seen in the alleged victim, Dr Booth said it was a possibility, however she had not seen that during her years as a paediatrician (which included working at the Children’s Hospital since 1975 and in child abuse cases since 1979), even with children with severe infestation of pin worms or severe eczema.

66. Mrs K, the alleged victim’s maternal grandmother gave evidence that the alleged victim would regularly stay with her and her husband in their 2-bderoom home in rural New South Wales during the school holidays. In the school holidays of July 1987, the alleged victim was staying in her home. The applicant had arrived to collect the alleged victim and was staying overnight in the home. Mrs K’s evidence was she awoke in the middle of the night to go to the toilet, and noticed that the alleged victim was not in the bedroom she was sharing with her father, but in the lounge room on the lounge, apparently asleep, with her nightdress up around her chest. She also observed the applicant to be kneeling beside the lounge with his mouth on the alleged victim’s genital area. Mrs K was apparently not noticed by the alleged victim and the applicant. Mrs K did not discuss what she had observed until some time in September 1987, when she informed her husband in the context of her decision not to allow the applicant to stay in her home when the next set of school holidays were due. On about 7 October 1987, Mrs K notified the Department of the incident in July 1987 involving the applicant and the alleged victim. She said her delay in notifying authorities was because she did not know who to contact, and she had not previously known of the Department’s existence. She said she did not raise the incident with her daughter, as her daughter would not have believed her. She said on a previous occasion she had told her daughter that the alleged victim was sore between her legs, but her daughter had just brushed her concerns aside.

67. During her evidence, Mrs K also gave evidence of her observations of the applicant rubbing the alleged victim up and down in the area of her vulva on two occasions several years earlier when the alleged victim was younger and before she sustained her burns. Mrs K said she initially believed the applicant was applying cream, however, he was still doing it after a period of time. Mrs K said she said to the applicant: “Don’t do that ‘BPM’”. That’s not nice”, to which the applicant replied; “I am trying to teach her that she mustn’t let any man or boy touch her there”. On the second occasion Mrs K observed the applicant to be doing the same thing to the alleged victim, Mrs K said she was very angry and told the applicant not to do that.

68. Ms Hayes, the Social Worker at the Children’s Hospital, gave evidence that during her interview with the alleged victim on 9 October 1987, the alleged victim indicated:

- the her daddy (the applicant) touched her on the wee wee;

- that he says he does it “because he loves me and because we’re in our family”.

- that the applicant kisses her on the genitals and the breasts;

- that the applicant had been doing this for a long time, from when she was about 4 years old;

- that the touching occurred in the shower and in her parent’s room;

- that she told him to stop but he didn’t;

- that if she told anyone she would be hit with the wooden spoon;

- that when she told her mother about it, her mother told the applicant to stop it and started swearing at him.

69. Ms Hayes also said the circumstances, as explained by the alleged victim, did not indicate that it was legitimate touching. It was not explained by the victim in the context of applying any medications or in the context of complaining of pain and irritation and asking the parent to look at it. In addition, the conduct occurred in the context of secrecy and with reprisals for being told. According to Ms Hayes, this was sufficient to form the view that the contact was non-legitimate. Ms Hayes stated that normally she would conduct further assessment interviews with the child after the first disclosure however, in this case the applicant and his wife were not co-operative, and further assessment of the alleged victim could not be carried out.

70. At the conclusion of the committal proceedings, the Magistrate was satisfied that there was evidence, both direct and circumstantial, such that she could not be of the opinion that a jury properly instructed would not be likely to convict the applicant, either of the charge of sexual intercourse in the definition of cunnilingus, or of the charge of indecent assault.

71. On 11 April 1988, as ordered by the Yasmar Children’s Court, Dr Booth conducted a further examination of the alleged victim and reported that the alleged victim’s genitalia showed a significant change from the previous examination, consistent with a cessation of chronic fondling.

72. On 19 July 1988, the Yasmar Children’s Court ordered an independent assessment by Dr Anne Banning, Psychologist. The assessment comprised four interviews with the alleged victim as well as interviews, including joint interviews with the applicant and the applicant’s wife.

73. In her report to the Yasmar Children’s Court, Dr Banning stated that it was highly likely the alleged victim had been sexually abused. She stated that the alleged victim’s conduct during assessment showed a preoccupation with sexuality, anxiety over sexuality, and guilt. Dr Banning stated that much of the alleged victim’s spontaneous play with anatomically correct dolls involved putting the “daddy doll” in the shower, and that the alleged victim’s subsequent retraction of her claims in respect to her father, “is consistent with sexually abused children whose allegations are disbelieved”.

74. On 13 September 1988, the Yasmar Children’s Court made a Committal to Care Order and committed the alleged victim to the care of her mother, with conditions relating to the continued supervision by the District Officer, supervised access by the applicant, and counselling.

75. On 13 June 1989, the applicant’s criminal trial commenced in the District Court. On 15 June 1989, the jury returned verdicts of not guilty on the offences tried, namely, Commit act of indecency towards person under 16 years, and Commit act of indecency towards person under 16 years by person in authority.

76. Following the criminal proceedings, the applicant and his wife made an application to the Yasmar Children’s Court for rescission of the Committal to Care order. The Department had previously recommended that the alleged victim’s maternal grandparents be given parental responsibility of the alleged victim. However, following the applicant’s acquittal, the Department did not object to the applicant returning to live at the family home. In its report to the Yasmar Children’s Court, it states: “The risk factors to (the alleged victim) remain in that both parents deny (the alleged victim) has been abused. This denial makes (the alleged victim) vulnerable emotionally and sexually. Dr Banning in August 1988 stated that if (the applicant) were acquitted, while not being able to guarantee protection of (the alleged victim), the evidence seems to be that there is a low recidivism rate once the criminal justice system has become involved”.

77. Dr Banning made a further report dated 4 August 1989 for the purposes of the Yasmar Children’s Court proceedings. She stated that it was extremely difficult to make recommendations as she did not have access to the information collected during the applicant’s trial. She stated: “On the information I have available both before the trial and since the trial I would have to stand by the conclusions I reached in August 1988. However, it is possible that I was wrong and that the extra evidence substantially clears (the applicant). If the Court now considers that is unlikely that (the applicant) sexually abused (the alleged victim), then the girls are not at risk of abuse and there should be no further need for supervision. If the Court considers that it is likely that (the applicant) sexually abused (the alleged victim) then the girls are still at risk. The problems in the marriage, and, in particular, the sexual problems add to that risk. Despite the risks, I believe a program of rehabilitation and family reunion should be the goal. I believe both parents are motivated and committed to this goal”.

69. On 24 August 1989, the Yasmar Children’s Court rescinded the Care Order and the alleged victim was released to her parents for 12 months on their undertakings that they accept supervision and attend family therapy.

70. There is no evidence of any further contact by the Department.

Application for Working with Children Check Clearance

80. During the risk assessment process, the applicant provided to the respondent a video statement he had made as part of his TAFE studies, which required a presentation involving a situation in his life over which he had no control. His daughter, the alleged victim, assisted him with his presentation.

81. In his video statement, the applicant described the “life-altering event” of being accused of inappropriate behaviour towards his daughter. He refers to his father-in-law attacking him over the telephone with the accusations, and to being “dumbfounded”. He states his local doctor gave advice not to have contact with his wife’s parents. He states he was questioned by the Department, and invasive tests were carried out. He states that there was no physical evidence his daughter was interfered with. He states that he moved in with his parents for 18 months and was totally devastated and suffered an acute nervous condition 24 hours a day. He also states that the Department was uninterested in him and he felt unsupported by the system. He said that when the matter finally went before a jury in the District Court, after three days, a not guilty verdict was reached. He said that afterwards the police shook hands with him and the Department offered counselling support, which he declined. He said that he didn’t trust (officers of) the Department as they misconstrued his words and believed he was in collusion with his wife. He said the Department (officers) were the last people he wanted to be counselled by, and he didn’t want to go anywhere near them and he wanted them to get the “hell out” of his place. The applicant also said he had closure of the matter and holds no ill feelings towards those involved. He said he realised later on they were doing a job, and it was about the most vulnerable people in our society.

82. In a statement made by the applicant on 11 February 2015 for the purposes of these proceedings, the applicant denied committing acts of indecency on his daughter. He states the case was brought as a result of the vindictive and hateful actions of his then mother-in-law, Mrs K, whose allegations were untrue and disbelieved in the District Court. The applicant states the evidence of witnesses in the Local Court proceedings was not tested. The applicant states it was the rehabilitation treatment for the burns sustained by the alleged victim “which gave rise to my mother-in-law’s incorrect observation of my attention to (the alleged victim) at the time of the alleged offences”. The applicant denies that he had no insight into the inappropriate behaviours that led him to being the subject of the allegations, and further states he abhors “any person who would carry out any actions against children as were falsely attributed to me”. The applicant further stated that after his criminal trial, the Magistrate in the Yasmar Children’s Court allowed him to return home immediately, and commented to the effect that the matter should have never have gone to court in the beginning. He also states that following the trial, he was told that counselling for him was not necessary as he had not committed any offences for which counselling would be necessary.

83. In his oral evidence before the Tribunal, the applicant agreed he spends time with his daughter’s three children, as well as the children of the friends who have provided character references. He indicated after finishing working for the local council, he wanted to work in the community. It was during a placement at a community centre that he was required to disclose any convictions for offences against children. He said that while he had never been convicted of such offences, he volunteered the information about the allegations, as he believed it was appropriate to be up-front and open.

84. The applicant said that his mother-in-law (now deceased) did not think he was worthy of her daughter’s affections. He said he had been coming off a methadone program, following an issue with heroin, and within 18 months he had been weaned off the drug. He said that since that time, he has not had any problems with drugs, and had achieved a spiritual transcendence and had become self-aware of the psychology of addiction. The applicant said he had never done anything untoward towards his daughter or other children.

85. In cross-examination, the applicant agreed that in his video statement he had indicated there was no physical evidence that his daughter had been interfered with. He said that the allegations were from many years ago and he had “completely forgotten” that there was evidence indicating that the alleged victim’s genital area had markings consistent with rubbing. He said he disputes the medical evidence.

86. In cross examination, the applicant denied touching the alleged victim in a sexual way, and denied that he and his wife indulged in behaviour which involved blowing raspberries on the alleged victim’s genitals and pinching her vulva. When put to him that his wife had indicated, when interviewed, that they did engage in that behaviour, the applicant said he thinks his wife would deny that, and that blowing on the “tum tum” is different from blowing on the genitals. When put to him that he told the District Officer that the alleged victim had touched his penis but that it last happened 18 months ago, the applicant said he had no concept of that, that he would never do that, and that he does not know where that evidence came from. The applicant denied that he and his wife played games with the alleged victim in which he pinched her vulva, and said he had to administer cream every day of the alleged victim’s life, but never played games. The applicant denied that the application of cream to, and the wearing of the Jobst suit by, the alleged victim ceased prior to 1987.

87. In cross-examination the applicant did not accept that the alleged victim had disclosed to Department officers that he had touched her inappropriately. The applicant said the alleged victim had been “whipped off” to a room on her own, shown pictures, and that there were no witnesses to the alleged victim’s statements other than the Departmental officers. He said he felt left out the process, and that nobody seemed to interview him at the time, or care about him. The applicant also denied that there was an interview with him and alleged victim together.

88. In re-examination, the applicant indicated that because of the alleged victim’s burns, which he said were all the way up to her navel, this would involve bathing her, removing sorbolene cream and drying her all over the area, and required soft and careful application. He said he was in great stress at the time, and had to drag the alleged victim into her Jobst suit while she was kicking and fighting. He said he had to do this twice a day for years, until she was five years of age. He said the alleged victim had full thickness burns and many skin grafts, including when she was into her twenties. He denied touching the alleged victim in an interfering way.

89. The Tribunal finds that the matters that gave rise to the respondent’s decision to refuse the working with children check clearance are very serious in nature. They involve the sexual abuse of a young child by a person in a position of trust and authority.

The period of time since the matters occurred and the conduct of the applicant since that time

90. It is almost 28 years since the alleged matters occurred. There is no record of any allegations of a sexual nature having been made against the applicant since 1987.

The age of the applicant at the time the matters occurred

91. The applicant was 34 years of age at the time of the alleged conduct.

The age of the alleged victim at the time the matters were committed and any matters relating to vulnerability of the alleged victim

92. The alleged victim was 5 years of age at the time the alleged offences occurred. Other evidence indicates abuse also occurred prior to July 1987 and continued to October 1987. As a result of the alleged victim’s young age, she was vulnerable and dependent on her parents for care. The alleged victim was also vulnerable in light of her physical health issues and medical history.

The difference in age between the alleged victim and the applicant and the relationship (if any) between the alleged victim and the applicant

93. The difference in age between the applicant and the alleged victim was 29 years. The applicant was her father and was in a position of authority and trust.

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

94. The applicant was aware the alleged victim was a child.

The applicant’s present age

95. At the time of the Tribunal hearing, the applicant was almost 64 years of age.

The seriousness of the applicant’s total criminal record and the conduct of the applicant since the matters occurred

96. The applicant has two separate charges for alcohol related driving offences, which are 15 years’ apart; the most recent in 2008. There is no evidence of anti-social behaviour, substance abuse or a general criminal lifestyle in the applicant’s criminal record.

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

97. In regard to the likelihood of the applicant engaging in the sexual abuse of children, the applicant relied on the report of Dr Seidler dated 27 February 2015.

98. Dr Seidler examined the applicant on 20 February 2015 for just under 2.5 hours. For the purposes of the assessment, Dr Seidler had regard to the statements of the applicant and his family members, email correspondence between the applicant and the respondent, and a letter to the respondent from Dr W. Dr Seidler described the applicant as somewhat anxious and uncomfortable initially, but this soon reduced and he engaged readily in the interview process. She states the applicant was reflective, thoughtful, introspective and quite psychologically minded.

99. In her report, Dr Seidler outlined the applicant’s family and development, education and occupational history. The applicant worked as a plumber for about 30 years, including with the same employer for 10 years and also managed his own plumbing business with a colleague. He did not work for about a 3 year period while facing the indecency charges. After that period, he worked with a friend in a pool maintenance business for 5 years, and later had a team leader role in the garden and maintenance division of a local council for 10 years before resigning from that position. More recently he had undertaken travels and has commenced studies in community services. He has not worked in paid employment during this time and is supported by government assistance. He hopes to work in community welfare and in particular, with vulnerable youth. The applicant reported to Dr Seidler that he has never been terminated from employment. Nor has he been the subject of complaints or allegations of sexual misconduct in the workplace.

100. Dr Seidler reported that the applicant had a history of illicit drug use during his late adolescence and early adulthood, however he has not been involved in this lifestyle since that period. He married his former wife at aged 22, and the relationship lasted for 12 years, and had become challenged following the birth of their two daughters. The applicant reported to Dr Seidler that he became more withdrawn and disconnected from his wife and this resulted in the breakdown in their marriage, together with his wife’s confusion over the indecency charges triggered by her mother’s report to authorities.

101. The applicant reported to Dr Seidler that he had a particularly close relationship with both of his daughters, including the alleged victim, as well as with her children (his grandchildren aged between 3 and 11 years of age).

102. The applicant reported to Dr Seidler that his mother-in-law, now deceased, was a difficult woman who did not approve of him. Dr Seidler stated the applicant “demonstrated a satisfactory understanding of consent and sexual boundaries and he did not endorse any specific attitudes consistent with sexual abuse. Further to this (the applicant) demonstrated some insight into the possible consequences of sexual abuse on alleged victims”.

103. Dr Seidler reported that that the applicant’s responses in the Personality Assessment Inventory (PAI) indicated considerable defensiveness, in that he sought to deny even common and minor shortcomings about which most people will be honest. His score was elevated to the extent that his profile on the PAI was not considered to be valid or realistic and was unable to be further interpreted. Dr Seidler, however, later reports that his excessive defensiveness is a concern, suggesting it may be more a function of anxiety about the current process and a desire to present himself in a more favourable light, which she says in not uncommon in these assessments.

104. Dr Seidler’s report contains a section entitled: “Discussion of Offending Behaviour” which reads:

“(The applicant) reported that his mother-in-law alleged that he inappropriately rubbed his eldest daughter’s vagina in the process of applying cream to the area following her sustaining serious burns in childhood. (The applicant) commented that his mother-in-law claimed that this occurred on one specific occasion but (the applicant) denied that this ever happened. He also noted that his daughter never disclosed any inappropriate or sexualised contact between them. Reasonably, (the applicant) stated that perhaps his mother-in-law believes that she saw him abuse his daughter but he denied that this occurred or that his touching his daughter was ever inappropriate in nature. As such, (the application) pleaded not guilty to the offences and was acquitted reportedly”.

105. Dr Seidler states that on the basis of the applicant's reports, the applicant does not present with sexual self-regulation or intimacy/relational concerns. She states the applicant has had experience of mature intimacy in relationships and appears to have conventional and mainstream sexual interest and practices. “As such there is no evidence of established deviancy concerns, including a sexual interest in children and there is also no evidence of hypersexuality. Further to this (the applicant) did not endorse attitudes consistent with sexual abuse. As such there is no evidence of risk in this case that may be related to sexual abuse, either presently or historically. This, in addition to the findings of the Court, suggest that there is no reason to be concerned about (the applicant) posing a risk to children and young people at this time”.

106. Dr Seidler considered the applicant’s dynamic risk factors; - that is, those factors that relate to a person’s current psychological state and life circumstances in order to provide an index of the person’s current live risk. In particular, Dr Seidler states that consideration of dynamic risk factors relating to sexual abuse suggests that the applicant would present a low risk of sexual abuse. Dr Seidler identifies a number of factors she considers are protective against the applicant’s risk of future offending:

• The absence of any conviction for a sexual offence;

• No reported concerns of sexual abuse aside from the alleged offences in 1987;

• An absence of a notable criminal history or antisocial attitudes or lifestyle;

• No reported history of mental health concerns;

• No adult history of adult drug abuse

• No reported history of established sexual deviancy or self-regulation concerns, hypersexuality or inappropriate sexual interests;

• A history of longer term mature intimate relationships;

• No presentation of concerns with interpersonal functioning

• History of community participation, pro-socially and productively;

• Absence of a history of sexual abuse as a alleged victim.

107. Dr Seidler also states the applicant showed quite a sophisticated understanding of why there is a need for a child protection system. Dr Seidler did not offer any recommendation for strategies required to manage risk. She states: “Rather, (the applicant) appears to be a stable and prosocial individual, who is able to participate gainfully in the community and interact with children and young people in a safe manner without presenting any obvious risk either in the workplace or in a more general sense”.

108. Prior to being cross-examined by counsel for the respondent, Dr Seidler had been given a number of additional documents, including the material produced by the Department of Families and Community Services. Dr Seidler was also present when the applicant gave evidence and his video statement was played to the Tribunal. Dr Seidler said the additional evidence (which was not available to her at the time she conducted the risk assessment of the applicant) gave rise to concerns. However, Dr Seidler stated that the additional information would not alter her opinion that the applicant presents a low risk of future sexually abusive behaviour. In particular, she said she conducts a risk assessment on the basis that the sexual abuse allegations are true. Dr Seidler said that even if accepting the applicant is dishonest, this would not influence the risk assessment, and that denial is not clearly associated with risk.

109. In cross-examination, Dr Seidler was questioned about the applicant’s PAI score. She said that an elevated result can indicate a person is minimising difficulties and exaggerating strengths. She also agreed that that it can suggest a lack of truth-telling.

Any information given by the applicant

110. The applicant is no longer married to his former wife, and lives with his current partner of 22 years. His employment history includes 16 years of self-employment as a tradesman, and 10 years as a Cleaning Team Leader with a local council. In 2013 and 2014, he undertook a Certificate IV in Community Services Work and a Diploma in Community Services Work. For approximately two years, he has been volunteering at an outreach program operated by a charitable organisation.

111. The applicant’s former wife made a written statement in which she stated the charges against the application were brought about because of the actions of her late mother, to whom she did not speak after the court proceedings. The applicant’s wife said that the Jobst suit her daughter was required to wear created irritation, causing the alleged victim to scratch, and which often resulted in discolouration of the alleged victim’s skin. The applicant’s wife said at no time did her daughter ever inform her of any inappropriate behaviour by her father.

112. The applicant’s daughter, the alleged victim, made a written statement. She is an assistant at a Family Day Care Centre, and has qualifications in nursing, midwifery and childcare. She states she finds it hard to believe that she would have voluntarily attributed to her father any of the actions said to have been carried out by him. She states she has a loving and caring relationship with her father and mother, and has no lasting problems with any of the behaviour which was allegedly attributed to her father and/or mother over 20 years ago. She states she has never had any hesitation in allowing her father to have direct contact with her children or the children of her friends.

113. In a written statement, the applicant’s mother states she spent a lot of time with the applicant looking after the alleged victim after she sustained her burns, and saw the applicant applying the special cream many times and changing the alleged victim’s Jobst suit. She said she never observed any inappropriate behaviour by the applicant towards the alleged victim. She states the applicant would never have showered or bathed with the alleged victim, and due to burns, for a long period the alleged victim was unable to shower, and had to bathe in a special solution.

110. The applicant’s general practitioner, Dr W, provided a letter to the Children’s Guardian dated 9 December 2014. He has been the family doctor for the applicant’s family for over 30 years. In his letter, he states that the applicant “explained all to me” at the time the applicant was accused of indecency in 1987, and they had extensive discussion. Dr W states “knowing (the applicant’s) behaviour, manner character and overall feelings I was certain that the conclusion the court had arrived at of not guilty on all counts was 100% correct truthful and a proper verdict”. Dr W referred to the applicant as having suffered distress and anxiety episodes as a result of the accusations and that it required 6 months of counselling and reassurance to reassure him he had been found, and was, in fact, not guilty. Dr W further stated the applicant has been an “exemplary” father and grandfather.

111. The applicant also relied on a letter from the coordinator of an outreach program in which the applicant has been volunteering for almost 2 years. His volunteer work involves providing assistance and support for adults with mental illness and disability. The coordinator states the applicant has proved to be trustworthy and respectful, builds relationships well and is trusted to work independently one-on-one with people in need of support.

112. The applicant also relied on four references supplied by friends, including those who have known him for several years, and whose young son the applicant has looked after. As well, the applicant provided references from two friends who have known him for longer periods, including a Justice of the Peace who has known him for 30 years and had supervised him in a work context. He said he found the applicant “to be a reliable, conscientious and extremely honest person”.

Any other matters the respondent considers necessary

117. The respondent contends that the decision the subject of review is the correct and preferred decision and should be affirmed. In its written outline of submissions, the respondent submits, inter alia, that because the Tribunal is protective and because the paramount principle is the safety, welfare and well-being of children and, and in particular, protecting them from child abuse, the assessment should err on the side of caution if there is a deficiency in information or if there is any doubt created by the available material: BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [119].

118. In oral submissions, counsel for the respondent submitted that the reports produced by the Department, while not able to be tested before the Tribunal, as a whole, raise a number of issues that tend to go towards showing that there was abuse of the alleged victim. Counsel for the respondent pointed to Dr Seidler’s agreement that the additional material which was not before her during the risk assessment, also raises concerns. Counsel for the respondent suggested that Dr Seidler, who was not an independent psychologist engaged by the Tribunal, has taken a partial view and presented one side of the story.

119. Counsel for the respondent also submitted that the applicant has not been honest to either Dr Seidler or to the Tribunal. Counsel points to the video statement in which the applicant claims there was no physical evidence his daughter had been interfered with; which is contrary to the evidence of Dr Booth which indicates that there was evidence interference had occurred.

120. Counsel for the respondent also submitted that the applicant was not honest in his report to Dr Seidler that he had not received mental health treatment. However, the Tribunal does not find the applicant has been dishonest in this regard. Rather, it is reasonable to expect that the applicant understood mental health treatment to be limited to review by a psychologist or psychiatrist, and not necessarily review by his family doctor. Similarly, the Tribunal was not persuaded that the applicant was deliberately untruthful and inconsistent in relation to the cessation of his drug use, as suggested by the respondent.

Conclusions and orders

121. The issue for determination is whether, on the material before it, the Tribunal can be satisfied that the applicant poses a risk to the safety of children.

122. Notwithstanding the applicant’s acquittal in 1989 of the indecency offences, the fact that proceedings had commenced in respect of those offences was sufficient to “trigger” a risk assessment by the respondent. As part of its assessment, the respondent obtained material which alleged the applicant had engaged in sexual abuse of the alleged victim prior to the alleged offending on 17 July 1987 and that it had continued to occur up until Departmental involvement in October 1987. The material available suggests that this conduct had commenced when the victim was toddler (the evidence of Mrs K), and at least 12-18 months prior to Dr Booth’s examination of the alleged victim in October 1987.

123. The applicant submits that his acquittal is determinative of the issue about whether he sexually abused his daughter. However, it is important to note that that the criminal proceedings and the Tribunal proceedings are materially different. In the criminal proceedings, the jury was tasked with finding whether the elements of the criminal offences with which the applicant was charged were proved beyond reasonable doubt. In that case, the jury was not so satisfied and returned verdicts of not guilty.

124. However, the role of the Tribunal is not to determine whether the applicant is guilty or not guilty of the offences with which he had been charged. Rather, it is to review the decision of the Children’s Guardian to refuse the applicant a Working with Children Check Clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable law.

125. The material includes material which may not have been admitted into evidence during the applicant’s criminal trial. The applicable law includes the Child Protection (Working with Children) Act 2012, which provides the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature.

126. The transcript of the District Court proceedings is not available. Therefore, it has not been possible to consider the evidence presented during the applicant’s criminal trial. Only very limited information about the trial was available, namely, that it was a jury trial of approximately 3 days’ duration and the jury returned verdicts of not guilty. The Tribunal cannot speculate on the evidence admitted at the applicant’s criminal trial, nor any directions that were given to the jury.

127. The Tribunal has before it evidence, including primary records made at the time the initial notification of abuse was made, and records of the actions taken by the Department thereafter. It includes the specialist opinions of Dr Booth and Dr Banning, as well as the various documents relevant to the proceedings in both the Local Court and the Yasmar Children’s Court.

128. The Tribunal acknowledges that much of the evidence has not been tested, except to a limited extent certain oral evidence given during the committal proceedings. The applicant has consistently maintained that he never sexually abused his daughter. Certain admissions said to be made by the applicant to a Departmental officer about touching and blowing of raspberries on the alleged victim’s genitals and the touching of his penis, the applicant now denies having made, and further denies that he ever engaged in that conduct.

129. The applicant’s oral evidence to the Tribunal, including his video statement and written statement, is limited in terms of his response to the allegations of sexual abuse. He suggests that the allegations were in large part due to the actions of his mother in law, whose evidence he suggests was tainted by her disapproval of him. The applicant also makes general reference to the alleged victim’s burns rehabilitation treatment and the regular application of cream. The written statements of the applicant’s wife and mother, which are supportive of the applicant’s denial, provide similar explanation for the allegations.

130. Mrs K is now deceased. Her evidence was tested to a limited extent during the committal proceedings, however, there is no information about the evidence, if any, she gave during the applicant’s criminal trial. However, the evidence of Mrs K is not the only material before the Tribunal relevant to whether the applicant engaged in sexual abuse of the alleged victim. Rather, the Tribunal is in the position where the explanations proffered by the applicant, his mother and former wife are to a certain extent addressed by the health professional evidence; namely, Dr Booth in her written reports and her evidence during the committal proceedings. Similarly, such explanations do not appear to have been accepted by Dr Banning, the independent expert engaged by the Children’s Court, who found it highly likely that the alleged victim had been sexually abused.

131. During the Tribunal hearing, the applicant stated that he disputes the medical evidence. However, besides the cross-examination of Dr Booth during the committal proceedings during which another hypothesis for the impact on the victim’s genital area was raised, there was limited detail of the basis on which the professional evidence was disputed.

132. There is no record of evidence given by the applicant (if he did in fact elect to give evidence) or by other witnesses in the criminal trial. The applicant did not take part in a police record of interview, as was his legal right. The victim was not permitted to be interviewed by police, and there was only a limited opportunity for the victim to be interviewed by Departmental officers due to the applicant and applicant’s wife’s reluctance for further interviews to occur. Whilst there were subsequent assessments of the victim, including a second medical assessment by Dr Booth in April 1988 and an assessment by Dr Banning in August 1998, both of those assessments were made at the direction of the Children’s Court, and at some time after the alleged sexual abuse had occurred.

133. The Tribunal is mindful that the allegations of abuse prior to, and after 17 July 1997, do not appear to have been made the subject of specific individual charges against the applicant. Rather, they appear to have formed part of the evidence led by the prosecution, at least during the committal proceedings, as relevant to the offences alleged to have occurred on 17 July 1987. They are, in the Tribunal’s view, clearly relevant to the Tribunal’s determination in this matter.

134. The Tribunal recognises that this is a finely balanced matter. The applicant has been found not guilty of offences with which he has been charged. However, on the balance of probabilities and taking into account the gravity of the allegations, the Tribunal finds that the evidence before it is sufficient to make a finding that the applicant engaged in sexually abusive conduct towards the victim when she was a child and entrusted to his care. In coming to this conclusion, the Tribunal gives particular weight to the evidence of the health and allied health professionals tasked with assessing the victim and the circumstances in which the allegations arose. It includes the evidence of the admissions made by the applicant and the applicant’s wife, and the victim’s statements about the applicant’s actions. Furthermore, in respect of the evidence of Dr Booth and the findings of Dr Banning, the Tribunal notes that at the time of their respective assessments, Dr Booth was an experienced paediatrician and Dr Banning was an independent expert engaged by the Children’s Court.

135. The Tribunal finds that the evidence produced by the respondent was not significantly diminished by the evidence of the applicant and his family members. Rather, the Tribunal finds that the totality of the evidence before it is sufficient to enable the Tribunal to make a finding the applicant had engaged in sexually abusive conduct towards a child. The Tribunal did not consider it necessary to make specific findings in respect of all of the matters about which there was material, but was satisfied on the whole of the evidence before it that the applicant engaged in conduct with the victim which constitutes child abuse.

136. In relation to the risk to the safety of children, the applicant seeks to rely on Dr Seidler’s risk assessment, and in particular, her finding that the applicant presents a low risk of sexually abusive conduct even if he did in fact engage in the sexual abuse of the victim. Importantly, however, Dr Seidler’s assessment was conducted primarily on the basis of the applicant’s self-report. The additional material provided by the respondent was not before Dr Seidler during her assessment of the applicant and therefore could not be raised with the applicant as part of the assessment process. Dr Seidler states that the additional material would not alter her assessment of the applicant as presenting a low risk. However, she agreed that the further evidence raised concerns. With great respect to Dr Seidler, it is difficult to see how she was able to remain resolute in her opinion that her assessment would not be any different, whilst readily acknowledging that the additional material raised concerns.

137. The Tribunal treated Dr Seidler’s assessment with some caution in light of the limited basis on which the assessment was conducted. Moreover, the Tribunal acknowledges that a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children.

138. The Tribunal takes into account that there is no evidence of any further sexually abusive conduct by the applicant after Departmental involvement was initiated in October 1987. There have been no proceedings commenced for any child-related offences for a period of 28 years. After the applicant’s criminal trial, there was not objection to Dr Banning’s recommendation that the alleged victim be released into the care of the applicant and his wife. There is no evidence of any misconduct during the applicant’s paid and volunteer work. He has a close relationship with his daughter, and his former wife is supportive of him. All of those factors militate in the applicant’s favour.

139. The character references indicate the applicant is held in high regard, including by friends who do not have concerns about their children having contact with him. References in relation to his former employment and volunteer work attest to the applicant as being as being a good worker and volunteer. However, the applicant’s work history does not indicate that he has previously worked with children. Apart from his recent community placement which required him to have a working with children check clearance, there is no evidence that the applicant has previously worked with children.

140. On balance, and taking into account the gravity of the allegations, the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety of children.

141. It was apparent to the Tribunal that the applicant feels very much aggrieved by the allegations and the processes that arose from them. In this sense, he perceives himself to be a victim in the matter, persecuted and unsupported. Of concern to the Tribunal is the applicant’s focus on his perceived unjust treatment, and indicates the applicant’s limited insight into the seriousness of the concerns held by those tasked with investigating, prosecuting and implementing measures in the context of child protection. Indeed, the applicant’s defensiveness was evident in his self-report to the psychologist, in his video statement, and in his evidence to the Tribunal. Rather than imperfect memory alone, his defensiveness may well contribute to his inability to acknowledge the existence of certain important evidence that formed the basis of the allegations of sexual abuse.

142. For example, the applicant’s claim, strongly asserted during his video statement, that there was no physical evidence to indicate his daughter was interfered with, is contradicted by the evidence of Dr Booth (including her two written reports and her oral evidence during the committal proceedings). Whether he agreed or disagreed with the findings of Dr Booth or if her evidence was subsequently not admitted or discredited during his criminal trial, her evidence exists and formed part of the material considered by the respondent in its risk assessment, and was produced during the Tribunal proceedings.

143. Similarly, the applicant’s assertion that there was not an interview with him and the alleged victim together is also clearly contradicted by the evidence of Dr Banning, whose report indicated a joint interview with the applicant and the alleged victim occurred on 18 August 1988. In addition, the applicant now states he and his wife did not make certain admissions attributed to them during the course of interviews with Departmental officers.

144. Therefore, at the present time, the applicant appears to dispute a large proportion of the evidence that formed part of the committal and Children’s Court proceedings, and which was considered for the purposes of the respondent’s risk assessment. The applicant’s significant defensiveness and inability to acknowledge the existence of evidence, even if disputed, is in the Tribunal’s view, concerning. Furthermore, whilst he now says he bears no ill will towards those involved in assessing, investigating and prosecuting the allegations in 1987, it is evident that the applicant is still upset and aggrieved. Of concern is his evidence that he wished for child protection authorities to get “the hell” away from him at the time of his acquittal, and that he did not trust them. Likewise, his evidence that child protection officers conducted “invasive” tests, “whisked off” the alleged victim (whose account he suggested lacked sufficient independent corroboration), and left him out of the process, gives rise to concerns that the applicant lacks sufficient insight into the seriousness of the allegations, the role of child protection and its focus on the protection of the child, rather than the welfare of the alleged perpetrator.

145. If the applicant is granted a working with children check clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

146. Taking into account all of the evidence before it, the Tribunal could not be satisfied that the applicant, if working with children, would be in a position to respond and act appropriately in situations where there are signs or indicators of child abuse, and which would warrant the intervention of child protection authorities. Furthermore, the Tribunal could not be satisfied that if working with children, the applicant would be able to dispassionately and objectively manage situations and take appropriate protective steps in circumstances where a child is at risk. In coming to this conclusion, the Tribunal is mindful that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration.

147. Therefore, on all the evidence both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in sections 15(4) and 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds on the balance of probabilities that the correct and preferable decision is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.

Order:

The decision of the Children’s Guardian dated 30 October 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.

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

Decision last updated: 13 May 2015