CLF v Children's Guardian - [2017] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CLF v Children’s Guardian [2017] NSWCATAD 9
Hearing dates: 23 August 2016
Date of orders: 04 January 2017
Decision date: 04 January 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Prof P Foreman, General Member
Decision:
1 The decision of the Children's Guardian dated 8 January 2016 to refuse to grant the applicant a working with children check clearance is set aside.
2 In substitution for that decision, the following decision is made: the applicant is granted a working with children check clearance.

Catchwords: CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence –Credibility of complainant – Inconsistency of complainant’s evidence - No presumption of risk.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Cases Cited: AHV v NSW Commission for Children and Young People [2012] NSWADT 263
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BKE v Children’s Guardian [2015] NSWSC 523
BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].
BYR v Children's Guardian [2013] NSWADT 310
CBN v Children’s Guardian [2016] NSWCATAD 240
Children and Young People v FZ [2011] NSWCA,
Children’s Guardian v BQP [2016] NSWSC 109
Children’s Guardian v BRL [2016] NSWSC 1206
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
FZ v Commissioner for Children and Young People [2010] NSWCC 1201
M v M (1988) 166 CLR 69; [1988] HCA 68
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
Category: Principal judgment
Parties: CLF (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
T Edwards (Applicant)
V Hartstein (Respondent)
Solicitors:
Browns Legal & Consulting (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1610102
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

The applicant, who will be referred to as CLF, requires a working with children check clearance to continue to care for his foster son.
The applicant was previously cleared to work with children in 2010. When he re-applied for a working with children check clearance in 2015, the Children’s Guardian, who is the respondent in this matter, conducted a risk assessment for him. On 9 September 2015, an interim bar was made against the applicant.
Following the completion of the risk assessment, which considered allegations of sexual and physical abuse against the applicant, the Children’s Guardian made a decision on 8 January 2016 to refuse to grant him a working with children check clearance.
CLF’s application for review was lodged within time and there is no dispute that the Tribunal has jurisdiction to hear and determine the application.

Legal principles

The Child Protection (Working with Children) Act 2012 (‘the Act’) provides that a worker must not engage in child-related work unless he holds such a clearance. (section 8 of the Act).
The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (section 3 of the Act).
The Children’s Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
Under section 27 of the Act, the Tribunal has the power to review a decision of the Children’s Guardian to refuse a working with children check clearance. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 of the Administrative Decisions Review Act 1997.)
Section 18(2) provides that 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.
In addition, in this case 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.
In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: 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].
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]. The Supreme Court has also recently observed that no party bears an onus in administrative review proceedings (to which an application under section 27 of the Act constitutes).
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.
In addition, in this case 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.
In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 23 above).
In considering whether an applicant poses a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
That test has been held to be applicable in this Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra).

Do the 2015 amendments to the Act apply?

The Act came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15 (4A) and s 30 (1A) into the Act. If these amendments were to apply to these proceedings, the Applicant would be required to meet an additional test that did not apply at the time of making his application to the Respondent. The additional test that is provided by s 30 (1A) is:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
1. A reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and
2. It is in the public interest to make the order.

The transitional provisions contained at Schedule 3 of the Act have the effect that the amendments do not apply to an application made before the amendments came into effect. The applicant lodged his application for a working with children check clearance before the amendments commenced operation and as a result the amendments do not apply to these proceedings.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant was not to be published without the leave of the Tribunal. For this purpose the pseudonym CLF has been used for the applicant's name.

EVIDENCE

Background

The applicant is a 59-year-old Indigenous man who, in 2006, was charged with aggravated sexual assault and acts of indecency with his stepdaughter (‘the complainant’). The offences were alleged to have happened between 1991 and 1996 when the complainant was aged between 11 and 15 years old. The applicant went to trial in 2008 and was acquitted of all charges.
In 2011, together with his de facto partner, the applicant became the foster carer for a 17-month boy (‘the foster son’). The applicant moved out of the family home when an interim bar was made against him on 9 September 2015 and remains living out of the family home. On 8 January 2016, a final decision was made by the Children’s Guardian to refuse the applicant a working with children clearance and on 22 January 2016, the applicant sought a review of this decision.
The Tribunal held a hearing into this matter on 23 August 2016. CLF gave oral evidence at the hearing as did CLF’s son and his de facto partner. Documentary material was also provided to the Tribunal, the relevant details of which are provided below. This material included statements and transcript from the applicant’s committal and subsequent criminal trial.

Risk Assessment report

A risk assessment was conducted for CLF in 2015, the trigger for the assessment being charges that had been laid against the applicant of aggravated act of indecency and aggravated sexual assault with a victim under 16 years. In recommending that the applicant be issued with a notice of proposed refusal of a working with children check clearance, the risk assessment concluded that:

The applicant’s alleged trigger offences occurred 19 years ago and related to serious allegations of physical abuse and sexual assault on a child in his parental care over a period of four years. Consequently the applicant poses a risk to the safety of children

The complainant

In 2006, the complainant made statements to the police alleging that the applicant had sexually assaulted her between 1991 and 1996 when she was between eleven and sixteen years old.
In a statement dated 15 May 2006, the complainant described the applicant as dominant, bossy and violent. She stated that the applicant would use his fists to hit her and would belt her with the belt he wore to work.
She stated that when she was about eleven years old, and her mother was at a bingo night, the applicant would ask her to scratch his back and stomach and then massage his penis.
According to the complainant:

When he started making me go further into his pants he would bring a foam mattress out from the spare bedroom into the lounge room and sit on it then cover himself with a blanket. My brothers would be in the lounge room as well and this stopped them seeing where he was making me put my hands. He would never say anything to describe his penis he would just say things like ‘play with me down there’ and hold the waistband of his pants open. I don't think he wore underpants. His pants were covered by the blankets and my brothers couldn't see. Every time he made me touch him like this it was in the lounge room and he had his pants on. Mostly tracksuit pants. This happened every time Mum went to bingo from the time I was 11 until just after I was 12. It happened weekly.

She stated that the applicant first had penile-vaginal intercourse with her when she was twelve. She spoke of feeling itchy around her vaginal areas and having a burning sensation. She stated that when she was still twelve, the applicant made her watch a pornographic movie. She stated that he later brought down a box of pornographic movies from the manhole in his bedroom. He also showed her a light pink vibrator.
She stated that the applicant started to make her have oral sex just after her thirteenth birthday:

The first time was again when mum had gone to bingo. [He] dragged the mattress out into the lounge room and laid on it with a mauve thick blanket with grey squares printed on it over him. He made sure my three brothers were seated around the end of the mattress with their backs to him watching the TV.
I went underneath the blanket. I didn't question him I just did it because he told me to. He had his pants pulled down a bit and his penis was out of his pants. His knees up so the blanket made a tent and you couldn't see where my head was. He grabbed my hand and maybe put it around his penis and I did as he told me to and put his penis in my mouth like…a Callipo ice block. The blanket was quite heavy and I had trouble breathing under it.

She stated that when she was fourteen, the applicant had come into her bedroom and told her to lay on the floor:

He pointed where to lay so my head was outside my bedroom door and the rest of my body inside my room so I could see if anybody was coming. I think Mum was having a sleep and my brothers were asleep too. I was wearing shorts and a singlet and he took my pants off. He pushed my legs so they were bent and moved his head close to my vagina and begin licking my vagina with his tongue. There was a noise upstairs and I moved so he got up and he went upstairs. He was the doing this for about a minute before he stopped. This was the first time he had done something like this to me when mum was at home.

In her statement, she described contacting the applicant when she was nineteen:

I remember when I was 19 I was stranded with my newborn baby. I didn't have any money and I had to contact my mum for some money. As a last resort I contacted [CLF]. I text him on my mobile phone to ask for money he text me back saying ‘I will if you will do what we used to do when you get back.’
I didn't reply back and didn't want his money.
When I was 21 I was at my brother[‘s] 18th birthday party. My whole family was there including [CLF] as [my brother] had invited him. After we had dinner we went to the function room. I was sitting at a table with my friend and he came over to me because I hadn't spoken to him all night. He stood behind me. I turned and looked around and saw he was looking down my top.
I said, ‘Get the fuck away from me.’
[CLF] quickly moved and went away from me.
I haven't heard or seen from him since.

The complainant stated that in 2006, after she and her mother had got into an argument and her mother had slapped her, she said to her mother, ‘I’m not a kid. Don’t hit me. You’re just like him hitting me. You let him rape me.’
In a statement dated 4 July 2006, she stated that she remembered that the applicant had sexually assaulted her when her mother left to attend the funeral of her great-uncle. She stated that the applicant told her to go into the main bedroom and turn off the lights. According to the statement, the applicant ‘always turned the lights off when he was going to have sex with me. Once in the bedroom he sexually assaulted her, according to her statement.
In cross-examination during the applicant’s trial, the complainant agreed that she was like a ‘little mother’ to her younger brothers, that they would follow her around all the time, that they were always with her and that they would all watch television together. She agreed that her brothers were in the lounge room with her on occasions when the applicant told her to put her hands down his pants:

Q: Say the boys weren’t glued to the television, say they turned around what would happen?
A: It depends what I was doing, they all - they always saw me scratching his back so that was nothing unusual for them.
Q: It's a big difference between scratching his back and putting your pants [sic] down his front isn't there?
A: Yes there is
Q: But if they turned around, any of the two, the two older ones if they just took one turn to the right or one turn to the left – bare [sic] in mind the television was in a corner they would see you doing that, wouldn't they?
A: They would've seen, yes. that's if he wasn't using a blanket or -or
Q: There was no blanket use the first time, was there?
On – no.
Q: According to one of your statements you suggested sometimes this took place for hours?
A: The scratching, yeah, yes it did.
Q: The scratching and the playing in the touching..
A: Mm..hmm.

She told the Court that after she left her underpants in the kitchen, the applicant ‘whacked me in my face and my mum was there at the same time. It was in the kitchen. That was after I left my underpants on the floor and he hit me that many times in the face that my mum pulled me away on that occasion.’
She confirmed that when the applicant directed her to touch his penis she felt two little lumps or bumps about half the size of a pea either side of his pants [sic] which she thought, at the time, must have been testicles.
She agreed that she had been up in the manhole in the applicant’s bedroom and stated that ‘if I had to go in there to push it up, I’d have to climb-I’d stand on the door handle, and I’d done that once when they were in the room and mum was in the room too. She agreed that it needed two people saying ‘Yeah, to hold the door, yes, that’s – if that was me doing it, you’d have – I’d have to stand on the door handle and push it up.’
She told the Court she had been up in the attic once, when it was empty:

Yeah we - we even the - the boys.. got lifted up there to have a look around, it was an attic, it was quite large – it wasn't just a little manhole thing, it was quite a large attic, and you could go in there and you could stand on the wooden things - the – the things that are in the roof and you could – it was an attic.
Q: So the fact is that you knew had to get up there and had done so yourself.
A: Yes, I done so when my mum and [CLF] were in the room to show us when we had moved into the place to have a look around. We had had – we - even [my brother] done it.

She agreed that, on her evidence, apart from on two occasions, all the sexual abuse had occurred when her mother was absent from the house. She also agreed that she had said to her grandmother, ‘I can’t understand why mum didn’t know because he did it while she was in the house.’
In response to the suggestion that in 1999, the applicant had transferred money to her account on three separate occasions to help her, she replied that she couldn’t remember this.
Counsel for the applicant asked her about further contact with the applicant:

Q: Remember 2002, remember your son’s father…tried to take your two-year-old son from preschool?
A: Yes, he did.
Q: Did you remember who you rang to come and help you?
A: Yes I did ring [CLF].
Q: You rang [CLF]?
A: Yes I did I was petrified, my son had been taken.
Q: He came down,drove around…found you..true?
A: Yes, yes he did.
Q: He also came to [your son's] third birthday party, didn't he?
A: He turned up uninvited he come and stood near the – the basketball court and then left.
Q: Well, what about when you asked to babysit [your son], the first time for three hours?
A: I don't remember that.
Q I beg your pardon?
A: I don't remember that.
Q: Are you denying it?
A: I don't remember. I- I why would I ask him to babysit?
Q: Good question, particularly if he's molested you, why would you ask him to babysit?

A: I don't remember doing that.
Q: [Your son] used to call him Pop.
A: No, he's never called him Pop.
Q Have a look at this photo. I'm sorry it's a photocopy. The back is the other photo you've seen… Who is that?
A: That's the boys and [CLF] and [my son].
Q: Who is the boy in his arms?
A: [My son].
A that's my son?
Q: what's he doing there?
A: I don't even know where this was taken.
Q: How old is he there? You can tell by looking at him.
A: He’s about 17 months.
Q: Try-
A: 18 months – 17, 18 months.
Q: And he’s with –
A: He’s with
Q – [CLF.]
A: Yes, he is
Q: Are you suggesting you know nothing about that?
A: No, I don't. I haven’t even seen this photo before.
Q: But my point is I suggested to you that you asked him to babysit and he did and that’s the photo that was taken on that occasion..around the beginning of 2003..what do you say to that?
A: I - I didn't do it I didn't ask him to watch him.

When showed a further photograph by Counsel for the applicant, the complainant identified it as a picture of her with her son when he was about 11 months old:

Q. Would it help you if I told you that [the photograph] was taken..when [CLF] came up and dropped [your son] off to you?.. You dropped him off and then you came over to pick him up and that photo was taken, what do you say to that?
A. I don’t remember that.
Q. ..I’m telling you that on my instructions from that man, he’s taking me and I’m putting to you.,that he babysitted him, you dropped him off, you picked him up and that photo was taken. What do you say to that?
A. I don’t remember that. It’s a lie.
Q. You picked him up
A. I went to [CLF’s] house to pick up the boys on an occasion, my son was with me but I did not go there to pick up my son.
Q. In spite of that photo, you still deny that you got him to babysit your son, do you?
A. Yes, I – he never babysat him.
Q. What about the Valentine’s Day that you, in 2003, that you and [your partner] asked him to mind [your son] overnight?
A. I wasn’t-
Q. Remember that one?
A. No, I don’t.
Q. Don’t you remember that occasion where you two went out for the whole night and you wanted him…he was with the other boy and [CLF’s partner], his partner since 1999? She was there when you asked, do you remember that?
A. No, I don’t.
Q. So that's at least three occasions that I pointed out to you where he has babysitted your son and you don't deny it but you can't recall it, is that correct?
A. I don't recall that. I do recall that on an occasion when I let [my brother] babysit him and he went down to the house because [my brother] told me the next day that he was around. I don't know if they went anywhere but that's the only time that I’d known that he was there when my son was there but I don't recall ringing him and saying "can you babysit my son or night?" No.
Q. But you don't deny it happened?
A. I just said that. I don't recall it.
Q. You do agree with one thing, it’d sound pretty ridiculous if after everything you [sic] did to you, you were trusting with your own son, wouldn't it three-year-old boy?
A. No, I don’t.

She agreed that in January 2002 she had hired a car and that CLF was the guarantor for the car hire:

I asked my mum, she asked him. I took it. He said he would do it, I done it. He- he put his name down on a piece of paper as a guarantor for a hire car.’

In answer to the question who provided the car rental agency with CLF’s details, the complainant replied

He – he was there with me. He come out as well to – to get the car…I seen him quite a few times around. He was at – at my mum’s house.’

She agreed that she took the car back late, that there was money owing on it and that she didn’t make any payments.
She agreed that in 2002 when her son had locked the two of them out of her flat, CLF had come to help her: ‘I don’t remember calling him…I do remember being locked out and I do remember him coming there, yes I do’.
She denied calling CLF a bit before that to say that she had been threatened by one of her girlfriend’s boyfriends because she owed him money. She didn’t remember ringing CLF and CLF confronting the girlfriend’s boyfriend and telling him to back off.
When shown two cards written to the applicant, the complainant agreed that it was her writing. One of the cards was dated 1994 and was from the complainant, her brothers and the dog. It said ‘To [CLF] you are the best father anyone could ever have. The second card, also from 1994, is from the complainant and says ‘To Dad – [CLF], happy Father’s Day.’

The complainant’s mother

In a statement dated 9 June 2006, the complainant’s mother stated that she began a relationship with the applicant in 1984. She describes him as a controlling, jealous man who she suspected to have a sexual interest in his niece and in one of his daughter’s friends. She described him smashing up a heater in a rage just before they separated.
She and applicant separated in 1997 and according to the complainant’s mother ‘after [CLF] moved out as far as I know [the complainant] and [CLF] didn’t have anything to do with each other.
According to her statement, in 2006, during a celebration for the complainant’s 24th birthday, the complainant told her that the applicant had raped her.
In a separate statement dated 10 August 2006, the complainant’s mother detailed the lumps the applicant had on his penis:

I recall when we first met each other and started our relationship back in 1984 [he] had three or four smaller than pea sized lump sat the base of his penis. I didn't think much of them. I noticed over the years they spread and had a crusty hard surface on them and became darker. His skin on his genital area was pinkish and they were more brownish. They also became bigger and ended up being about the size of a pea. If you saw him naked you wouldn't see them unless you were up close to him. He had a fair bit of black pubic hair that was quite long and covered the lumps pretty well unless you were up close looking for something on his penis.

She was later told by a doctor that she had genital warts and asked the applicant to get the lumps on his penis checked by a doctor who told him that he’d need to get them burnt off.
The complainant’s mother stated that:

I never told anyone about me or [CLF] having genital warts because I was embarrassed and didn't want people knowing that sort of thing about us. I especially didn't tell any of our kids because that's not the type of thing I'd want to know. When [CLF] was in the bathroom generally he would lock the door. In our household if someone was in the bathroom you would always knock and if someone was in there the other person would either wait or use the downstairs toilet. If [CLF] was naked in the bedroom he would always lock the door by putting a knife in the skirting frame around the door or putting a bedside table behind the door. He was very persistent about keeping the kids out. When I first got with [CLF] I thought it very strange but I guess overtime I got used to it. I don't think there would be any way our kids would know about [CLF] or I having the lumps. I don't recall CLF walking around the house naked or talking about the lumps in any way.

The complainant’s mother was a Crown witness at the applicant’s committal. She gave evidence that during her relationship with the applicant, he had been physically violent and possessive towards her and resented her for already having a child: the complainant. In cross-examination, she agreed that the complainant is fair and bruises easily and agrees that on one occasion she thought she may have caused the complainant to bruise when she pulled the complainant towards her. She couldn’t remember a time when the complainant had two black eyes.
The complainant’s mother gave evidence that the applicant had bruised the complainant by slapping her when she was four or five years old and that he had once belted the complainant herself when she was about ten or eleven years old. She gave evidence to the court that the applicant would give the complainant extra money on top of that which he would give to the other children.
She confirmed that he had genital warts on the base of his penis.
When asked about the contact between the complainant and the applicant between 1997 and 2006, the complainant’s mother told the court:

There was a little bit of conversation when she had her first born…in 2000. …After the birth of her baby. Because he hired her a car so she can go travelling around and from that on, they haven’t spoken,

The complainant’s mother was also a Crown witness at the applicant’s trial. She gave evidence that there was a manhole in the house she had shared with the applicant and that she had never seen any of the children go into the manhole because it was too high for them to climb.
She stated that as far as she knew, after she and the applicant separated, the applicant and the complainant had no further contact.
She told the court that she had never told anyone in the family, including her children, that she and the applicant had genital warts.

The complainant’s grandmother

The complainant’s grandmother was a Crown witness in the applicant’s committal proceedings. She confirmed that she had trained as a sexual assault advice counsellor in 1988. At the time of giving evidence, she was still working as an educator in child sexual assault on a temporary basis. She agreed that, as a teenager, the complainant had probably learnt about child sexual assault from her.
In re-examination the following exchange occurred between the prosecutor and the complainant’s grandmother:

Q: You were asked some questions about pamphlets and material and that sort of thing when you first started as a sexual assault counsellor, your training. Was there much of that material around when you first started?
A: I wouldn’t have had any stuff at home. The only thing that the medical service had was two little booklets and one was aimed at kids and one was aimed at adults. It was about good touching and bad touching and she would have been able to get those from the medical service.

She gave evidence that she rang the applicant to accuse him of physical abuse after she saw the complainant, who was about four years old at the time, with two black eyes:

Q. Did he deny it? Did he say, I didn’t do it?
He never did say much at all. He never did, over the years, have a full conversation with anybody in the family.

She agreed that, when the complainant was four years old, she was ‘bumping into things and probably did bruise herself’ which was when the complainant’s grandmother realised that the complainant may need glasses.
The complainant’s grandmother was also a Crown witness at the applicant’s trial. She agreed that she had worked as an educator on child sexual assault and domestic violence, which included developing a training manual. She agreed that when the complainant was a child, she taught her protective behaviours.

CLF

In a statutory declaration dated 18 September 2015, the applicant declared that he has four biological sons and a foster son who has been in his care since 2011. He has also cared for other children short term and on respite. He has not had a relationship with his biological children since the court proceedings in 2006 although he has recently resumed contact with one of his sons (‘CLF’s son’) who has provided a statement in support of these proceedings.
In a statutory declaration dated 17 June 2016, the applicant refers to the allegations made against him by the complainant.
He denies ever having sexually assaulted the complainant and states that ‘engaging in sexual conduct of any kind with any child is the last thing on earth I would do and I find the idea sickening.’ He doesn’t know why the complainant and her mother made the allegations against him.
He denies showing any pornography to the complainant or encouraging her to look at it, or showing any sex toy such as a vibrator to the complainant of any other child, stating that he found ‘the idea sickening.’ He agreed that he had a box of pornographic videos and a vibrator which he kept hidden in the manhole above the main bedroom but denied ever having shown any of the children either the box or its contents, or telling them that it was there. According to the applicant, the complainant and her mother would see him getting into the manhole to put Christmas presents up there.
He accepted having slapped his former de facto wife on one occasion. He stated that he was in a relationship with his former de facto wife for twelve and a half years. In his statement, the applicant says that:

I cannot recall ever verbally abusing [her] but I accept that I sometimes have said upsetting things. I do recall arguing with [her]. She used drugs a fair bit and I would argue with her about that and sometimes swear at her about her use of drugs. That was the main thing we used to argue about. I was working long hours to make money to live on and she would spend it on drugs. I didn't approve of this. I did not and don't have a drug habit. I used marijuana once when I was about 17 and never again.

In relation to administering corporal punishment on the complainant, the applicant stated that:

The only occasion I can ever recall striking [the complainant] was when I gave her the belt. The circumstance was that she came home with about four or five packets of lollies (Lifesavers) she had stolen from a local corner shop.
I hit her once with the belt and I made her take the lollies back to the shop. It was a light blow with no real force. It's possible I gave her a smack with the hand on some other occasion if she was doing something naughty but I can't recall any particular occasion. I have never hit [the complainant] with a lemonade bottle as [her mother] has stated. I completely deny ever hitting [the complainant] in the face as she has suggested in one of those statements. I have never hit [the complainant] with my fists. I have never hit any child with my fists. I'm aware that [the complainant] also alleged that her mother punched her in the face. I never saw that occur either.

He would give his own sons a light smack when they were naughty but denied living in a household where there was regular physical punishment of any kind.
He agreed that he may have teased the complainant by called her ‘four eyes’ but denying ever locking her out of the house. He denied having abused the complainant for leaving her underpants on the bathroom floor.
After his relationship with her mother had ended, the applicant stayed in touch with the complainant and ‘supported her in various ways such as going guarantor on a car hire, helping her when she locked herself out of the house, babysitting her son and giving her money for food.’
He denies ever having smacked his seven-year-old foster son:

My foster son and I have had a very close relationship. He would always help me in the shed and follow me around. I always went to his indoor soccer. Since I haven't been able to have any contact with him, I talk on the phone every night with my partner to check how he is going. I feel completely devastated by being separated from my foster son and I'm aware that my partner is also devastated by the situation.
I do not have any history of being violent apart of my few fights at school that got me into trouble and one fight in a pub when I was in my 20s. I have never been charged with any offence related to violence or any offence related to mistreating children in any way (apart from the allegations made by the complainant).
I am aware that the evidence in the witness statements or criminal trial transcript may give an impression that I speak badly to or about women and I must have a bad attitude towards women. I have worked in tough workplaces and I admit that I sometimes use bad language which might be directed to wards men or women, specially if they have made me angry. I might also sometimes make stupid remarks to either a man or a woman that could be offensive, even if I meant it as a joke.
However I was brought up by my mum and grandfather, who were very strict, to respect my elders and to respect all people of all races and tribes whether they were men or women. I have tried to stick to that all my life.
As I get older I think I've also learnt more and more to avoid using rough language even as a joke. I'm also much calmer than I used to be when I was younger and less stressed. This has definitely helped me to be a good father to my foster son. Because I am better off financially than I used to be I want to give my foster son everything that I couldn't give to my kids in the past. My partner and I have both tried to make sure our foster son is brought up to respect all people.

In a statement dated 1 December 2015, the applicant stated that he was devastated to have been charged with the sexual assault of his stepdaughter. In his view, the primary reason why he was found not guilty at the end of the trial was because the complainant denied maintaining any form of contact with the applicant and in light of the evidence showing that he had an ongoing and supporting relationship with the complainant, with the applicant providing assistance and financial support between 1997 and 2000.
The applicant states that:

In the seven years since the verdict I have undertaken an in-depth 12-month assessment and training process which I completed and approval granted to become both a respite carer and foster parent. Since 2011 both my partner and I have provided respite care for children on various occasions. [The foster care agency] also conduct monthly and annual reviews, assessments and house safety inspections every 12 months. I have attended on occasions schooling and social events with friends and their families of [my foster son’s] school friends and despite the previous allegations against me, my attendance at these events has been without incident or any concern to anyone I've also maintained steady employment… since 2006. Despite the allegations, at all times during and subsequent to the court proceeding, I have had the support of my employer.

In oral evidence before the Tribunal, the applicant confirmed that when his working with children check clearance was refused, he moved out of the home he shares with his partner and his foster son. He confirmed that he continues to financially support them, and that he has telephone contact and minimal supervised contact with his foster son.
The applicant was cross-examined on his evidence by Counsel for the Children’s Guardian. He agreed that he had once slapped the complainant’s mother with an open hand after she had accused him of being unfaithful. He denied having hit her on any other occasion. He denied ever hitting the complainant with a closed fist or ever hitting her in the face. He told the Tribunal that he couldn’t remember if he had hit the complainant when she was three years old. He agreed that he had hit the complainant with a belt, but only once, after she had stolen lollies. He denied causing her bruising as a result of this. He denied causing the complainant to have two black eyes, telling the Tribunal that he wasn’t violent to children. He denied ever kicking any of his children on the bottom. He denied being told by the complainant’s mother that her own mother would be keeping the child because the applicant was hitting her. He couldn’t remember if the complainant ever went to live with her grandparents, explaining that it was thirty years ago and that he was ‘lucky to remember [his] parents when they passed away.’
After he and the complainant’s mother separated, he agreed that he had been distressed and suicidal and that he had signed himself into hospital to be treated for depression. He denied having threatened to kill the complainant’s mother but accepted that he had threatened to kill himself. He agreed that he didn’t like the complainant’s mother being employed and may have said that he was jealous of her going to work. He agreed with the proposition put by Counsel for the Children’s Guardian that he has a bad temper.

He agreed that they had pornography and a vibrator that they kept in the ceiling where the children couldn’t get to it. He denied showing this to the complainant.
He denied asking the complainant to scratch his stomach or his genitals. This would be impossible, he told the Tribunal, because he would wear track suit pants that had a ‘strong front.’ According to the applicant:

I was lucky to get my own hands down there, how could she get hers down?

He denied getting the complainant to ‘do something sexual’ to him.
He denied being jealous when the complainant’s mother went to bingo.
In 1994 when the complainant was 12 years old, the applicant denied telling her to go up into his bedroom, then putting a chest of drawers against the door, then raping her. He denied raping her in 1995 and denied playing her a pornographic film. He denied taking out a vibrator and telling the complainant to smell it. He agreed that there was a mattress in the lounge room for the kids to watch television but denied putting a blanket on the mattress and getting the complainant to suck his penis. He denied having sex with the complainant when the complainant’s mother was travelling to the country. He denied ever showing the complainant ‘was a 69er was.’ He denied bossing the complainant around and denied using her sexually to get back at her mother. He denied making the complainant masturbate him and suck his penis between June and December 1995.
He agreed that he received treatment for warts from a Sydney sexual health centre in 1997. He agreed that he had told the clinic that he had sexual contact with a person other than the complainant’s mum more than five years prior to his attendance at the clinic. He told the Tribunal that this person was a former neighbour of his.
He agreed that he used to be angry with the complainant’s mother for losing money at bingo, as he wanted the money to be used to feed and clothe the children.
He agreed that he would pay the complainant for babysitting and for school materials. He denied paying her to stay quiet about ‘what he was doing.’ He agreed that the money he was earning was precious to him and his family but told the Tribunal that he would pay the complainant to babysit because

her mother was off her head on marijuana – she was looking after the kids more than her mother.

He told the Tribunal that as a tow-truck driver, he has seen a lot of dead children, which is why he looks after children.
A medical file for the applicant confirms he had penile warts and contains a diagram dated 1997 showing nodes on the left hand side of the penis.

CLF’s son

CLF’s son provided a police statement dated 14 September 2006 in relation to the complaints made against the applicant.
In his statement he expressed his surprise at the allegations:
This has come as a surprise to me because I didn’t suspect he would do this…Dad never touched me in any sexual way. I don’t suspect he has touched my brothers either. He was always very protective of us. He would watch out for us and make sure other people didn’t treat us badly.
In a statement prepared for these proceedings, CLF’s son confirmed the truth of his earlier statement (apart from revising his age at the time of his parents’ separation):

When I think back now it is still true to say that I never saw or experienced anything to make me suspect that my dad was doing anything inappropriate with my sister or with anyone else in the family. ..I continue to get on well with both my mum and dad..I thought our family life was mostly good. I got on fine with my mum and dad and my sister and brothers….I do remember that in the last year or two before dad and mum separated they did argue more than before. However I did not ever witness their arguments become physical. I never once saw my dad be violent towards my mum…Occasionally we would get a quick kick up the backside or a smack. My memory of this was that it happened very rarely. I have no memory of ever receiving a bruise or any other injury and I never saw anyone else in the family receive a bruise or any other injury…Up until the time when my father had to move out of his family home where he lived with his partner and stepson [sic], I used to visit them all pretty often – I’d say dozens of times in the past year. They have always looked like a loving family unit to me.

In oral evidence before the Tribunal, CLF’s son confirmed his support for his father’s application for a working with children check clearance and told the Tribunal that his father’s foster son was just like his actual son. He told the Tribunal that his father had never been violent towards his foster son.
When cross-examined by Counsel for the Children’s Guardian, CLF’s son agreed that he could remember his parents arguing but could not recall an occasion when his father had hit his mother. He couldn’t recall his mother or the complainant being bruised. He told the Tribunal that he had never seen his father hit the complainant or any of the other children. He agreed that his father would say ‘I’ll give you the belt’ and agreed that his father had belted him once or twice. He agreed that his father would occasionally smack him with an open hand and would give him ‘a kick up the backside’ when he ‘deserved it.’ He couldn’t recall this happening to any of the other children.
He told the Tribunal that he had changed his name to his mother’s surname following the separation of his parents. He told the Tribunal that he sees his father regularly and that neither he nor his partner have any concerns about his father being around their own children.

CLF’s de facto partner

Since 2012, CLF’s de facto partner has been a full-time caseworker with a foster care organisation and holds a Certificate IV in Community Services, identifying and responding to risk of harm, and is currently in the process of obtaining a Diploma in Counselling. In a letter to the Children’s Guardian dated 30 November 2015, she confirmed her belief that CLF is innocent of the charges that were brought against him and noted that CLF was approved as a foster carer.
In oral evidence before the Tribunal, CLF’s de facto partner confirmed that she was already in a de facto relationship with him when he was charged with having sexually assaulted the complainant. She read the paperwork when it arrived and believed him when he said he was innocent. In her estimate, the jury was out for 45 minutes before delivering the verdict of not guilty. She confirmed that she lives with her foster son and is supportive of the applicant moving back into the house. She would like to have another foster child placed with her but this has now been put on hold.
She told the Tribunal that she had no concerns when her foster son is with the applicant. She told the Tribunal that the applicant is not aggressive and is very protective of their foster son. If she did have any concerns about the applicant, she would report those concerns.
To discipline their foster son, she gives him quiet time or time out. She told the Tribunal that the applicant sends their foster son to his room to think about his behaviour. He also sits him down to talk about it so he can find out the core of the problem.
In cross-examination before the Tribunal, CLF’s de facto partner agreed that she didn’t know the applicant before 1999 and so didn’t see him with either his own children or the complainant.
The applicant’s de facto partner gave evidence at the applicant’s criminal trial. She confirmed that they started living together in 2001.
She confirmed that in June 2006, the applicant had rung her to tell her that he had been asked to speak to the police about allegations made against him. The applicant’s de facto partner arranged a lawyer for the applicant. On the lawyer’s advice, he did not say anything to the police.
She described the applicant as someone who was always there for his sons. She was shown a photograph by Counsel for the applicant and asked to describe it. She stated that she had taken the photograph around 2003 and identified in it the applicant, who was holding the complainant’s son, and three of the applicant’s sons.

Q. How did [the complainant’s son] happen to be there at that time? Could you please tell the story there?
A. Okay. Well, it must be like for the boys to come up that particular evening, okay. When I got home they've – [CLF] and the boys already in the back lounge room which was a room built onto the house; it was an old–style house. So they were in the back. There was – I was in the kitchen, okay. I was cleaning up after dinner or probably getting out ice cream for the kids. There was a knock at the door. I went to answer the door and standing in front of me was [the complainant and] her ex-partner…[who] was holding his son.
Q. What happened?
A. Okay. [the complainant] asked where [CLF] was, and I said yeah hang on I'll go and get him. I went out to where [he] was with the kids and said, [the complainant] is at the door with [her ex-partner] and he said ‘ask them if they’d like to come in’. I said ‘Okay. So I've walked back out towards the front door I didn't realise that [CLF] was also coming behind me. I noticed him in the doorway; it's like an arch…[The complainant] walked through the door, had no hesitations whatsoever... [Her ex-partner] put [his son] down. He ran straight over to where the boys were… and [the complainant and her ex-partner] stayed there for at least 10 minutes.
Q. The idea was what?
A. Babysitting so [the complainant] could go out with her mother for the night.
Q. The baby stayed all night?
A. Yes.
Q. Tell us about it being picked up. Were you there in the morning when they picked him up?
A. No, [CLF] actually dropped [him] back down to the [complainant’s mother’s address.]
Q. That wasn't the first time, was it?
A. No
Q. Or the only time they were babysitting?
A. Yes.
Q. Can you remember any other episodes of babysitting [the complainant’s son]?
A. He would only stay overnight, okay? It was never for – from a Friday night to Sunday afternoon. It was when the boys were there. When – [the complainant] never asked him to watch a son just by himself, okay? But he’d always bring up videos to watch… I think it was Toy Story around that time because he had a little wooden doll like a hard plastic doll that he’d carry around with him or Bob the Builder, because he’d get up in the morning and put the video on and you’d hear, ‘Bob the Builder,’ you know, ‘Can we fix it?’.
Q. And there are times that he was babysitted by them, is that correct?
A. Yeah, [CLF] [sic] was there because of [CLF], not because of me.
Q. The other thing was did you ever hear [the complainant’s son] refer to [CLF] as something?
A. Yeah Pop or Poppy.
Q. Are you sure that?
A. Positive.
Q you heard that yourself?
A. Yes, because if [CLF] would disappear, [the complainant’s son] would be following around, ‘Where’s Pop, where’s Pop?” ‘Oh, pop’s in the garage,’ you know, or ‘Poppy, Poppy, where are you?’

When asked when the babysitting had started, the applicant’s de facto partner told the court that:

Well, we moved..in October 2001. It wasn’t every weekend where [the complainant’s son] came up. It might have been four to six month periods, it wasn’t, you know, it’s not what she asked him to do every weekend, or he was requested to do every weekend. But he stayed up there on – at least three times, maybe four times, okay….[The complainant’s son] was walking, he was two-three.

She told the court that in 2002, the applicant had told her that the complainant had asked the applicant to go guarantor on a hire car. The applicant’s de facto partner told the court that she had been unsure about the applicant going guarantor, explaining that this meant he would be liable to pay any monies owing. She told the Court that the applicant replied, ‘No, she’s okay. She wouldn’t do that to me.’ Because the car was returned late and the complainant’s payment was not accepted, the applicant was responsible for the outstanding payment of $3162 of which he paid $450- $500.
The applicant’s de facto partner also identified deposit slips from 1999 that had been made into the complainant’s bank account and a receipt for a fridge made out to the complainant’s mother.

Friend of the applicant

At his criminal trial, a friend of the applicant described him and his partner as being ‘like family.’

As a single parent I have – I’m very protective of my daughter, so I don’t have a – have a lot of male contact. She doesn’t see her father, so [CLF’s] sort of the dominant male figure in her life, she looks up to him, refers to him as Uncle. They’re – we’re like adopted family to them.

She gave evidence that there was nothing that would stop her from allowing the applicant to babysit her daughter. She told the court that on her observations of the applicant, he was not capable of committing such a crime against children.
In cross-examination she agreed that she hadn’t known the applicant between 1993 and 1997 and had never spoken to the complainant.

The applicant’s first niece

The applicant’s niece gave evidence at trial that she had seen the complainant’s son at the applicant’s house that he shared with his current partner. She described it as the first time she had seen the complainant’s son, although she had seen the complainant when she had been pregnant with him. When asked how old the child was, she replied ‘well, he was walking so I assume over the age of two-three.’
She gave evidence about the layout of the house the applicant was sharing with the complainant and her mother and her brothers prior to the applicant’s separation from the complainant’s mother. She described the lounge room of the house as being not very big and gave evidence that when a mattress was placed in front of the sofa, the mattress would be right in front of the television. She also stated that the sofa had its back to the stairs when meant that someone sitting on the sofa wouldn’t be able to see someone coming down the stairs unless the person on the sofa turned right around.
She gave evidence that on the basis of her own experience, the applicant would not be capable of committing a crime against children. He described the applicant in the following terms:
Well I know my uncle is –well most loved, he’s well respected, not only by myself, between the other nieces, because there is only majority of girls, we out – the boys outnumber us in the family. [Uncle’s] always been more close to us. He’s taught us girls how to, like self-defence, care. He’s always been honest. We could always go to him if we needed anything and he’d help. Whether it was when we were growing up, up until now, he was a man who could always count on to put family first, put his children first, a hard worker and a very much loved brother, son. He’s always been a hard working man and if he needed to he’d go without to give you, and there has been plenty of time where Uncle has come.. to help me move.

The applicant’s second niece

Another of the applicant’s nieces gave evidence at the applicant’s trial. She told the Court that she is the mother of six children and that, subsequent to the allegations being made by the complainant, has retained a close relationship with the applicant. Based on her experience and observations, she told the court that the applicant would not be capable of committing such a crime against children.

The applicant’s third niece

A third niece gave evidence at the applicant’s trial. She gave evidence that she knew the complainant and had visited the applicant when he lived with the complainant and her mother and brothers. Based on her experience and observations, she told the court that the applicant would not be capable of committing such a crime against children.

Psychological report

Ms Jessica Pratley, psychologist, prepared a risk assessment report for the applicant for these proceedings before the Tribunal.
In a history taken for the applicant, Ms Pratley noted that he worked making hot water and gas systems before working as a security guard and driving trucks. For the past thirteen years he has had a permanent job as a tow truck driver. His employer has confirmed that he has never been the subject of any disciplinary actions. The applicant self-reported two incidents of workplace complaints made against him and noted that no actions had been taken in relation to the complaints.
The applicant has a son to an early relationship and three sons to the complainant’s mother.
The applicant completed the PAI (Personality Assessment Inventory) test following his assessment interview with Ms Pratley. The PAI is used to reveal response tendencies that are inconsistent, exaggerated or otherwise invalid. According to Ms Pratley’s report, the applicant’s ‘response pattern demonstrated that he did not attend to the items appropriately, and the level of inconsistency in his responses renders the assessment invalid.’ Ms Pratley suggests that this may have been as a result of the applicant’s poor literacy.
Ms Pratley assessed the applicant’s level of risk using the RSVP (Risk for Sexual Violence Protocol) which explores static and dynamic risk factors, in addition to individual future needs that could reduce the risk of recidivism. According to Ms Pratley:

The RSVP was applied to assess [the applicant’s] risk if he had perpetrated the sexual abuse of his stepdaughter. If his acquittal in 2008 is accepted, it would not be appropriate to apply the RSVP, and the following assessment should be disregarded. Taking the perspective that he did sexually abuse his stepdaughter, consideration of risk factors identified through the RSVP suggests that CLF poses a low risk of sexual recidivism.

Assuming the applicant’s guilt, Ms Pratley identified the following issues seen to currently elevate the applicant’s level of risk:

his denial of his sexually abusive behaviour and the consequent likelihood of problems with treatment (given that he is unlikely to engage in it);

his lack of insight into the processes underlying his sexually abusive behaviour and limited insights into his own psychological processes.

Ms Pratley also identified historical risk factors for the applicant, which again assume his guilt:

chronic historical offending which was diverse in nature and showed an escalation in sexual violence;

his use of actual and threatened physical harm to force his stepdaughter to comply and his use of his position of power and grooming her by giving her money to force compliance;

his previously demonstrated poor coping skills, past violent and suicidal ideation and previous problems with intimate relationships.

Again assuming the applicant’s guilt, Ms Pratley cited the following protective factors for the applicant:

he professes a sexual preference for consenting adults and reports a moderate intensity sex drive;

he has demonstrated capacity to develop emotional intimacy with adults;

although his social network is currently limited to extended family, this network is primarily prosocial;

he has shown capacity for goal-directed living and appears to have a sense of agency over his actions;

he has reasonable problem solving skills;

he has shown stability in employment;

does not have problems with drugs or alcohol;

he has been generally law-abiding.

According to Ms Pratley

Taking into account CLF’s risk and protective factors, his overall level of risk is currently low, reiterating that this assessment is based on accepting that he committed the offence as alleged. If he did not commit the offence no appreciable risk is identified.

Ms Pratley noted that the current assessment relies on file information as well as CLF's account at interview. According to Ms Pratley, the vast difference between these two sources of information raises concern that CLF may have minimised or disregarded relevant information, which may result in an underestimation of risk.

Ms Pratley further stated that:

As outlined above, the risk that CLF poses is currently low and he presents as a reasonably stable member of the community. If an assumption is made that his acquittal in 2008 is true and valid, then CLF in fact poses no more risk to the safety of children and young people than an average community member. If, however, the acquittal was based on an incorrect interpretation of the evidence presented at trial, and CLF did in fact sexually abuse his stepdaughter, the risk that he poses, while low, is real and appreciable and would have significant impacts for a future victim. If this is the case, CLF’s ongoing denial of his abuse increases his risk, and it is of concern that he does not have external supports in place to manage his risk given that his partner and community do not believe that he sexually abused his stepdaughter. In this scenario, although his risk is mitigated by the protective factors outlined above as well as his advancing age, I hold concerns about how CLF would cope if he experienced significant relationship problems or a breakdown in his current relationship.

Ms Pratley gave oral evidence to the Tribunal in relation to the applicant. She agreed that, in her opinion, the applicant seemed unable to take responsibility for his behaviour in his relationship with the complainant’s mother. In relation to the applicant’s failure to recall events under cross-examination, Ms Pratley noted that, in her dealings with him, he was unsure about a lot of dates across his whole life. In relation to the applicant’s performance using the PAI test, Ms Pratley expressed her view that he had not understood the questions.
She agreed that she had assessed the applicant in terms of his risk of sexual abuse rather than physical abuse but agreed that, in the context of poor emotional coping, mostly likely if the applicant were not in a stable relationship, similar factors would be relevant in relation to his risk of physically abuse.
When asked whether the applicant may have minimized relevant information, Ms Pratley stated that in interview, the applicant presented as being able to cope and as being fairly stable and settled. She agreed that he placed responsibility on the complainant’s mother which was in conflict with file material suggesting that the applicant was responsible for much of the marital discord.
She agreed that if the applicant did not commit the offences he had been charged with, the risk test administered on him would be invalid.
She agreed that in terms of his ability to cope, it had been a positive step for the applicant to have voluntarily admitted himself to hospital in 1997 for depression. Ms Pratley was concerned, however, by the lack of follow-up in relation to his treatment for depression and notes that he might benefit from some treatment in order to assist him to cease taking antidepressants.

Foster care agency

In a 2011 placement review form for the applicant’s foster son, the following assessment was made:

[The child] has been in his current placement for four months now. He is the only child in the placement so he enjoys plenty of attention. [CLF and his partner] are the only other occupants in the household. [The child] has a great relationship with [CLF and his partner]. [The child] has developed a strong attachment to both [CLF and his partner]. [The child] is settled into a solid day routine. The placement can be described as very stable. Overall he is doing well and he appears and healthy. [CLF’s partner] is very organised and attentive to [the child’s] health needs and always makes sure that he attends his medical appointments. [The child] appears to be settled and happy in the placement. There are no behavioural concerns.

In a letter to the Children’s Guardian from the Chief Executive Officer of the foster agency with whom the applicant is a carer, he writes:

Since being approved as foster carers, both [CLF and his partner] have also provided care to other children on a short term and respite basis. They have always provided care that is of a high standard to not only [their foster son] but also to the children coming in an out of the home line placements. They have demonstrated that they have the capacity to care for children with their needs and have provided a safe and nurturing environment. They have been open and transparent in their dealings with the agency the communication with various staff has been positive. They are compliant and follow through with requests and are open to suggestions on how to support children in care. [CLF and his partner] have shown a strong commitment to ensuring that [their foster son] has a sense of belonging and his cultural identity is maintained. I would like to highlight that since [CLF and his partner] were approved as foster carers with our service there has been no concerns or risks identified by the… team.

In a reference contained on file, the manager of the early intervention program at the foster care agency states that she has no concerns for the care provided by CLF and his partner to their foster son.
In a Potential Carer Interview held with CLF, his partner and two foster care workers, the applicant spoke about the charges brought against him:

[CLF] stated that he always had a good relationship with [the complainant] and would see one another now and again. On one occasion, [the complainant] rang the applicant to tell him that her boyfriend had tried to kidnap her son. The applicant tried to find the boyfriend and when he did, he was at the courthouse and nothing could be done.
[CLF] was charged straight up with sexual assault to a child under 16 yrs. Initially there were 8 offences as the weeks went on this went to approximately 18…[CLF and his partner] stated that during court proceedings these charges dropping as there was no evidence and there was inconsistency. Court started in June and went for about 1 1/2 weeks…The court adjourned for deliberation and came straight back in… The court made a decision in 45 minutes and it was out of court by 4:30 PM. [CLF] stated the last part of court, the jury’s verdict, they stated not guilty. Court was dismissed, all charges were dismissed and [CLF] could go. [CLF] stated I went through court because I do not have anything to hide, I didn't do anything.

In an assessment dated 28 June 2013, the caseworker provided the following reasons for CLF and his partner continuing to be authorized as carers:

The carers offer [their foster son] a high standard of care. They show love and affection, and provide a safe and secure home…I would recommend [CLF and his partner] for short or long term care placements once [their foster son] has developed a sound settling and sleep routine where he is able to sleep in his own bed. I believe once this has developed, [CLF and his partner] would be able to care for one other child in the home.

Dr Bernand

Dr Bernand is the applicant’s treating doctor. In a reference for the applicant, she states that:

I have been involved in the fostering of [CLF’s foster son]. I cannot comment on the past court case that was dismissed without charge. However, I do know that [CLF’s foster son] has blossomed under [CLF and his partner’s] care and is a very happy confident boy. It will be very detrimental to his continued stability if the family unit is disrupted.

SUBMISSIONS

CLF

In his submissions, Counsel for the applicant gives the following explanations as to why CLF may have been found not guilty at trial:

The complainant gave evidence that CLF had a single lump on either side of his penis. She made a drawing to show this but stated in evidence that she had never seen the warts, despite her allegations of sexual assault including oral intercourse. The complainant’s mother gave evidence that CLF only had warts on one side of his penis and in numerous quantity throughout almost the whole of their relationship. It was suggested to the complainant that her drawing was identical to a drawing in a sexual health pamphlet found inside the family home and that she may have known that CLF had genital warts when she heard CLF and her mother arguing about them;

The complainant accepted that when her younger brothers were young, they would treat her like a mother and follow her around all the time. The complainant gave evidence that the two older boys (who would have been 10 and 6 when she was 16; and 7 and 3 when she was 11) were present, on numerous occasions, a few steps away when the assaults were taking place. There is no evidence, however, that over the four-year period of the alleged assaults, the brothers ever witnessed any inappropriate behaviour by their father towards the complainant;

The inherent unlikelihood of the evidence, including that the assaults occurred on every single occasion that the complainant’s mother was at Bingo which would been over 200 times; that the assaults lasted 2 to 3 hours at a time, without anyone’s suspicion having been aroused; that, whilst being assaulted, the complainant looked up the stairs through the gaps to see if anyone was walking down;

Because her grandmother was a sexual assault worker, the complainant had knowledge of sexual assault. According to Counsel for the applicant ‘in this context the jury may have considered that the lack of contemporaneous complaint by the complainant was relevant in assessing her credibility’;

In her original complaint to her grandmother, the complainant said ‘I can’t understand why Mum didn’t know because he did it while she was in the house.’ This, according to Counsel for the applicant, is inconsistent with her allegations that all but two of the incidents occurred when her mother was at Bingo, but consistent with the proposition that the complaint was fabricated in order to cause the complainant’s mother to feel guilty;

The complainant had the following motives to lie: she felt that the applicant did not treat her the same way he treated his own children and blamed him for the poor relationship between her and her mother; she made the allegations to hurt her mother during a heated argument;

The complainant’s behaviour at the time of the alleged assaults was inconsistent with emotional disturbance as a consequence of repeated (weekly) sexual assaults by the applicant;

Despite the complainant’s claim that the applicant had done nothing for her since the time of the alleged incidents, there was evidence that the applicant had transferred money to her on three occasions in 1999; that she had telephoned CLF to assist her when her young son was taken by her former partner without her consent; that she had asked CLF to babysit her daughter on a number of occasions in 2001 and 2003; that she used CLF as guarantor for the hire of a vehicle in 2002 which she did not return, as a result of which CLF was sued for $3200; that in 2002, she was locked out of her house and telephoned CLF to come and assist her;

There was strong character evidence provided for the applicant, including three of his nieces and an employee of the Aboriginal Children’s Service who had known the applicant for 33 years.

The fact that the indictment was amended just prior to the conclusion of the Crown case, as a consequence of inconsistences with the complainant’s evidence. According to Counsel for the applicant, the judge allowed the amendments and commented that the problems with the dates were matters of credibility that could be put to the jury.

According to Counsel for the applicant:

After a relatively short deliberation, the jury brought back verdicts of not guilty in relation to all counts. It is submitted that in circumstances where the allegations were inherently unlikely, there was a lack of corroborating evidence, the complaint was delayed and made in circumstances that the jury found to be unreliable, and the complainant told deliberate lies about her post-offence contact with CLF, the jury verdict was almost inevitable.

Counsel for the applicant submitted that on the evidence before it, the Tribunal was not in a position to find either that the applicant had sexually abused the complainant or that the circumstances surrounding the charges laid against the applicant or the course of conduct meant that there is a risk to children.
Counsel for the applicant submitted that if the credibility of the complainant is rejected, namely that it is found that she has not told the truth in relation to the central allegations, then it would follow that the surrounding circumstances would also be rejected. He distinguished this case from the circumstances set out in the case of Children’s Guardian v BQP [2016] NSWSC 1099 where there were allegations of different events happening to different people This case, he submitted, was limited to one complainant giving an account of the conduct and circumstances surrounding her allegations.
Counsel for the applicant submitted that the jury was in a better position to determine the guilt of the applicant than the Tribunal, noticing that the jury heard 2 weeks worth of evidence, the complainant was cross-examined at length and the jury took only 45 minutes to acquit the accused, without even having heard from him.
Counsel for the applicant submitted that the documents for the foster care agency are all supportive of the applicant’s pro-social behaviour towards both adults and children. He submitted that the Tribunal can consider the applicant to be a person of good character who has been assessed as having been of good enough behaviour to be a foster carer.

Children’s Guardian

In her submissions, Counsel for the Children’s Guardian sets out the charges for which the applicant stood trial. According to her submissions, the complainant ‘had repressed memories of the assaults for some 10 years’ and on 15 May 2006 went to the police. Counsel for the Children’s Guardian notes that the applicant refused to be interviewed or make a written statement in relation to the allegations.’
In her submissions, Counsel for the Children’s Guardian notes the vulnerability of the complainant who was left in the applicant’s care.
She notes that the applicant’s only conviction was for stealing in 1982. She notes that the applicant self-reported to the psychologist, Ms Pratley, two workplace complaints made against him that were not taken any further.
She notes the applicant’s strong support from his partner and that the applicant has support from the foster organisation supervising the fostering of the applicant’s son. She notes that in 1997, the applicant was hospitalised for depression.
Counsel for the Children’s Guardian submitted that the Tribunal was in a position to either make a positive finding that the offences charged did occur or, alternatively, to be satisfied that the circumstances surrounding the charges laid against the applicant or the course of conduct were such as to show that the applicant poses a risk to the safety of children.
She also submitted that weight should be given to the evidence of the applicant’s physical violence:

as a teenager;

towards his son, who gave evidence that the applicant had slapped him when he was a child;

towards the complainant, who he admitted having hit with a belt;

towards the complainant’s mother, who he admitted having slapped on one occasion.

Counsel for the Children’s Guardian submitted that an inference could be drawn from the applicant’s failure to discuss his relationship with the complainant’s mother that any evidence he could have given would not have assisted him. She also submitted that weight should be given to the evidence of the applicant’s jealousy in relation to the complainant’s mother.
She submitted that the Tribunal would not be able to find the applicant to be a witness of truth and should find that his answers were evasive, and that he didn’t remember events when it didn’t suit him to remember and only remembered things when it did suit him. She cited the inherent improbability of a 12-year-old girl having knowledge of a vibrator and pornography that had been keen in a box that she couldn’t reach and queried her knowledge of genital warts.
The Tribunal, she submitted, should also give weight to Ms Pratley’s concerns that the applicant requires treatment. She also submitted that the tribunal should not give weight to the time taken by the jury to reach a verdict in the applicant’s case and should not speculate on why the jury had acquitted the applicant.

FINDINGS AND REASONS

In determining this application, the Tribunal "must consider" those factors set out in section 30 (1) of the Act. The evidence will be considered under each of the following subheadings.

The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a))

The matters that that caused an assessment and the refusal of the clearance were charges laid against the applicant that he had sexually assaulted his stepdaughter between 1991 and 1995. As submitted by Counsel for the Children’s Guardian, these allegations of aggravated sexual assault and an aggravated act of indecency, if true, are very serious indeed.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

The trigger offences were said to have occurred between 21 and 23 years ago.

The age of the person at the time the matters occurred (s30(1)(c))

The applicant was 36 or 37 years old at the time the first offence was said to have occurred.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim (s30(1)(d))

The complainant was 11 years old when the first offence was said to have occurred and 14 years old when the last offence occurred. The complainant was vulnerable as she was under the authority of the applicant, who was her stepfather.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

At the time of the first alleged offence there was a twenty-five year age difference between the applicant and the complainant. The applicant was the complainant’s stepfather.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

The applicant would have known that the complainant was a child as she was his stepdaughter.

The person's present age (s30(1)(g))

The applicant is 59 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

In 1982, the applicant was convicted of stealing. He was fined $250 and placed on a good behaviour bond.
His conduct since the date of the complainant’s allegations raises no concerns. Since 2011, he has been the foster carer of a young boy. No issues of concern have been raised in relation to his care of the child.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

Contained on file is a psychological risk assessment report for the applicant prepared by Ms Jessica Pratley. Assuming the applicant is not guilty of the offences with which he was charged (and of which he was later acquitted), no appreciable risk to children is identified by Ms Pratley. In this circumstances, the applicant would pose no more risk to the safety of children and young people than an average community member.
On the assumption that the applicant did commit the offences for which he was charged, it is Ms Pratley’s view that his risk of re-offending is low, taken into account his risk and protective factors. Despite his risk of re-offending being assessed as low in these circumstances, it is Ms Pratley’s view that the risk, whilst low, is real and appreciable and would have significant impacts for a future victim.

Any information given by the applicant in, or in relation to, the application (s30(1)(j))

The applicant tendered a statement and a risk assessment report in support of his application for a working with children check clearance. He gave oral evidence before the Tribunal and was cross-examined on his evidence. A number of references are before the Tribunal in support of the applicant, including information from the foster care agency for whom the applicant is a foster carer. The applicant’s partner gave oral evidence in support of the application.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

The Children’s Guardian noted that in 1997, the applicant had a series of depressive episodes requiring his hospitalisation and that following his separation from the complainant’s mother, he had, as least for a period, limited contact with his sons.

Consideration

The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.
This matter involves the consideration of the very serious allegations that from 1993 to 1997, when she was between the ages of 11 and 15 years, the applicant sexually assaulted the complainant. The allegations, which are denied by the applicant, rely on the evidence of the complainant.
In BKE v Children’s Guardian [2015] NSWSC 523, the Supreme Court gave guidance in relation to the approach to be taken by the Tribunal when making findings in relation to such allegations. In the recent decision of Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Harrison J considers BKE v Children’s Guardian in the context of the statutory test requiring the Tribunal to consider whether a person ‘poses a risk to the safety of children’

The statutory test
13.The test in s 18(2) of the Act requires a decision maker to consider whether a person “poses a risk to the safety of children”. “Risk” in this context excludes “fanciful or theoretical risk” and instead requires a decision maker to determine “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”: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33].
14.The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.
15.The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
“... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child’s welfare.”
16.Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

Did the conduct, as alleged, occur?

On the evidence and material before us, and for the reasons that follow, we are satisfied, on the balance of probabilities, that the conduct for which the applicant was charged and stood trial did not occur.
In considering this application, the Tribunal was provided with the transcript for the committal proceedings against the applicant and the criminal trial itself. The Tribunal was also provided with the police brief of evidence, including witness statements.
The applicant did not give evidence at his trial where he was acquitte of all charges. He did, however, provide a statement and give oral evidence before the Tribunal in these proceedings. In his statement and during his oral evidence, in the course of which he was cross-examined by Counsel for the Children’s Guardian, he denied ever having sexually assaulted the complainant or committing an act of indecency against her. No witnesses were called by the Children’s Guardian in the course of the Tribunal proceedings.
It is not in dispute that the criminal trial relied on the uncorroborated evidence of the complainant. A consideration of her evidence is, therefore, fundamental to a finding by the Tribunal as to whether the relevant conduct occurred.
In analysing the complainant’s evidence, we have considered whether the complainant can be found to be a witness of truth. In light of the following, we have doubts as to her truthfulness when giving evidence at the applicant’s trial:

Complainant’s contact with the applicant

The complainant gave evidence that she had limited contact with the applicant after he and her mother had separated in 1997. She cited only two instances: once when she was 19 year old when she had contacted CLF for money and when he had texted back ‘I will if you will do what we used to do when you get back’; and once, when she was 21 years old and at her brother’s 18th birthday party, when she had told the applicant to ‘get the fuck away from me.’
In cross-examination at the trial, however, she agreed that:

she had rung CLF in 2002 to request his assistance when her son’s father had taken the child from pre-school;

CLF had attended her son’s third birthday party, although she stated that he had simply ‘turned up uninvited’;

In January 2002 she had hired a car and that CLF had agreed to be guarantor for the car hire;

In 2002, when her son had locked them both out of the flat, CLF had come to help her.

A photograph was tendered of the applicant holding the complainant’s son and evidence was given by the applicant’s de facto partner that on occasion, the complainant would ask the applicant to babysit her son. According to the applicant’s de facto partner, on at least one occasion the child, who called the applicant Pop or Poppy, would stay overnight with the applicant and her.
Evidence was also provided of three deposits made in 1999 from the applicant’s bank account into the complainant’s account.
In light of the trial transcript, we are satisfied that the complainant was untruthful in her evidence in relation to the extent of contact she had with the applicant after her parents’ separation in 1997. On the evidence before us, we accept that the applicant would babysit her son, would assist her financially, including agreeing to be guarantor for a car hire, and would help her in times of crisis, including when her son was taken from pre-school by his father and when she and her son were locked out of the flat.
In our view, the evidence of this contact, which we accept, is at odds with the complainant’s evidence that any later contact with the applicant was unwanted and threatening. It is also surprising that she would leave her son overnight with a man she alleged to have sexually assaulted her on many occasions as a child.

Inherent unlikelihood of offence 4 as set out in the police facts

The complainant gave evidence that on five or six occasions while her mother was out at bingo, the applicant would force the complainant to fellate him in the lounge room while her younger brothers, then aged ten and six were also in the lounge room, watching television.
Her evidence was that:

the applicant would lie on a mattress which was in between the television and the sofa;

her younger brothers would be sitting in front of the mattress watching television

the applicant made a tent with his legs and, covering himself with a blanket, told the complainant to go under the blanket and to suck his penis ‘like a Calippo.’

The applicant’s first niece gave evidence at trial that the lounge room of the house was not very big and that when a mattress was placed in front of the sofa, the mattress would be right in front of the television. She wasn’t cross-examined on this evidence. On the evidence before us, we accept the evidence of the applicant’s first niece’s in relation to the size of the lounge room.
The evidence of CLF’s son in these proceedings is that ‘when I think back now it is still true to say that I never saw or experienced anything to make me suspect that my dad was doing anything inappropriate with my sister or with anyone else in the family.’
On the evidence before us, it seems unlikely that in a small room with the complainant’s younger brother in such close proximity, it would have been possible for the complainant to have crawled under a ‘tent blanket’ and to have been given verbal, and threatening, instructions by the applicant as to how to suck his penis without attracting the attention of her brothers who, on the evidence, would have been ten and six years old at the time.
On this basis, we have concerns about the veracity of the complainant’s evidence in this regard. For this reason and on the evidence before us, we find, on the balance of probabilities, that this conduct, as set under Offence 4 in the police facts sheet, did not occur.

Complainant’s knowledge of genital warts

The complainant gave evidence at trial of feeling two pea-sized lumps on either side of the applicant’s penis but never actually seeing the warts themselves. The complainant’s mother gave evidence at trial that, at the time of their relationship, the applicant had genital warts on one side of the penis only. Medical notes for the applicant show lumps only on one side of the penis.
In response to the query by Counsel for the Children’s Guardian as how would a 12-year-old girl know about genital warts, the applicant submits that the complainant may have been aware of the warts having heard CLF and her mother arguing about them. At trial, it was also suggested to the complainant that her drawing of the warts was identical to a drawing in a sexual health pamphlet found inside the family home. We note that when giving evidence, the complainant was not a child but rather an adult and so her knowledge was that of an adult rather than that of a child.
In light of the conflicting evidence before us, we give little weight to the complainant’s evidence in relation to the lumps she allegedly felt on the applicant’s penis.|

Complainant’s knowledge of pornography and vibrator

Counsel for the Children’s Guardian submitted that it was improbable that a young girl would know anything about pornography or a vibrator unless she had been told about it and shown it, particularly as it had been kept in a box in the ceiling that she couldn’t reach.
We note that by the time she gave evidence at the trial, the complainant was no longer a child and whilst was giving evidence about conduct that allegedly occurred when she was a child, her knowledge when giving evidence was that of an adult. The complainant’s evidence at trial was that she had been shown up into the manhole where the box of pornography and the vibrator were kept and that she knew how to access the manhole. It is, therefore, possible that she and a second person may have found the box in the manhole.
On the evidence before it and in light of our concerns, as set out above, in relation to the veracity of other aspects of the complainant’s evidence, we are not satisfied on the balance of probabilities that the applicant showed the complainant pornographic material and a vibrator.

CLF’s evidence

Although CLF did not give evidence at trial, he gave evidence at these proceedings in which he denied ever having sexually assaulted the complainant. He was cross-examined by Counsel for the Children’s Guardian who submitted that he was ‘evasive’ in his responses.
We agree that CLF was taciturn in his evidence and did not recall dates or events when questioned by Counsel for the Children’s Guardian, such that he could be seen to be evasive. We are mindful, however, that the applicant is an indigenous man described as quiet. The forensic psychologist, Ms Pratley, also found CLF to have difficulty with dates and stated in her report that he seemed unable to understand the questions posed in the PAI test, such that his responses rendered the assessment invalid. On the evidence before us, whilst we agree that CLF was not a forthcoming witness, we are not satisfied that he was evasive.
Having considered the evidence as set out under the sub-headings above, we are not satisfied on the balance of probabilities that the complainant was a witness of truth in certain matters, particularly in relation to her later contact with the applicant. On this basis, and in light of the inconsistency of evidence that casts further doubt on the veracity of the complainant’s evidence in relation to the offence 4 (as set out in the police facts sheet), we are not satisfied, on the balance of probabilities, that the applicant ever sexually assaulted her.
For these reasons, we find that the conduct alleged did not occur.

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

As set out above, we are satisfied on the evidence before us that the conduct for which the applicant stood trial and was acquitted did not occur. We now need to consider whether the applicant does, nevertheless, pose a real and appreciable risk to children.
Counsel for the Children’s Guardian submits that he does on the basis of his history of violence, namely that:

CLF himself gave evidence that he had slapped the complainant’s mother on one occasion;

The complainant’s mother gave evidence of CLF’s physical violence towards her;

The complainant gave evidence at trial as to CLF’s physical violence towards her;

CLF’s son gave evidence that his father would give him ‘a kick up the bum when he deserved it.’;

In oral evidence before the Tribunal, CLF agreed that:

he had hit the complainant’s mother on one occasion;

he had hit the complainant with a belt as punishment for stealing lollies from a shop;

he would give his older sons a light smack when they were naughty.

CLF’s son told the Tribunal that as a child he never saw his father be violent towards his mother. He himself would get a ‘quick kick up the backside or a smack.’
The evidence from the applicant’s foster care agency is that the applicant is an impressive foster carer.
The evidence from the applicant’s de facto partner is that the applicant never applies corporal punishment to their foster son but instead sends him to his room.
For the following reasons, and having considered all the evidence before us, we are not satisfied that the applicant has a history of physical violence such that he poses a real and appreciable risk to children.
When considering the evidence of the complainant’s mother and the complainant herself, we prefer the evidence of CLF’s son who, in evidence before the Tribunal, stated that he never witnessed any violence between his father and mother to that of the complainant’s mother as set out in the trial transcript.
The complainant’s mother did not appear before the Tribunal and so was unable to be tested in relation to her allegations that the applicant had been physically violent towards her. Similarly, the complainant was not before the Tribunal to give evidence in relation to her allegations that the applicant was physically violent to her and so could not be tested on this. There is no evidence before the Tribunal that the applicant was responsible for bruises sustained by the complainant as a young child.
For these reasons, we give more weight to the evidence of CLF’s son that he did not witness violence in the household when growing up. We accept that CLF slapped the complainant’s mother on one occasion and that he now regrets this.
We are not satisfied that the applicant’s poses a risk to children because he hit the complainant with a belt and would smack his son, or give him a ‘kick up the backside.’ On the evidence before it, whilst it is not behaviour to condone, we are not satisfied that it constitutes physical violence such that it would pose a risk to the safety of children. We accept the applicant’s evidence that he no longer administers punishment in the form of corporal punishment and that he instead punishes his foster son by sending him to his room for time out.
We give little weight to the alleged workplace complaints made against the applicant. These were self-reported by the applicant to Ms Pratley and there is no evidence before us of what took place and how this would be relevant to an assessment of the applicant’s risk to children.
We give weight to the positive assessment by the foster care agency that the applicant is a successful and impressive foster carer.
We also give weight the report by Ms Pratley that, assuming the applicant to be innocent of the charges of which he was acquitted, he poses no more risk to the safety of children and young people than an average community member.
For these reasons, and having considered all the evidence before us, we find that the applicant does not currently pose a real and appreciable risk to the safety of children and young people. In our view, the risk is neither real, nor appreciable and neither is there sufficient evidence before us that there is any real likelihood of future risk,

CONCLUSION

For the reasons set out above, we reach the following conclusion.
The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children.
The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.
We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
In our view, having regard to all of the material before the Tribunal, the applicant does not pose a risk to the safety of children.
It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian.

ORDERS

The orders are as follows:

The decision of the Children's Guardian dated 8 January 2016 to refuse to grant the applicant a working with children check clearance is set aside.

In substitution for that decision, the following decision is made: the applicant is granted a working with children check clearance.

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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: 04 January 2017

Medium Neutral Citation:	CLF v Children’s Guardian [2017] NSWCATAD 9
Hearing dates:	23 August 2016
Date of orders:	04 January 2017
Decision date:	04 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member Prof P Foreman, General Member
Decision:	1 The decision of the Children's Guardian dated 8 January 2016 to refuse to grant the applicant a working with children check clearance is set aside. 2 In substitution for that decision, the following decision is made: the applicant is granted a working with children check clearance.
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence –Credibility of complainant – Inconsistency of complainant’s evidence - No presumption of risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Children’s Guardian [2015] NSWSC 523 BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41]. BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 Children and Young People v FZ [2011] NSWCA, Children’s Guardian v BQP [2016] NSWSC 109 Children’s Guardian v BRL [2016] NSWSC 1206 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 FZ v Commissioner for Children and Young People [2010] NSWCC 1201 M v M (1988) 166 CLR 69; [1988] HCA 68 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
Category:	Principal judgment
Parties:	CLF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: T Edwards (Applicant) V Hartstein (Respondent) Solicitors: Browns Legal & Consulting (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610102
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.