CVD v Children's Guardian

[2017] NSWCATAD 224

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CVD v Children’s Guardian [2017] NSWCATAD 224

Hearing dates:

19 June 2017

Date of orders:

19 June 2017

Decision date:

19 June 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hon G Mullane ADC, Principal Member
Dr B Field, General Member

Decision:

(1) The decision of the Children’s Guardian in its letter of 30 September 2016 to CVD refusing his application for a Working With Children Check Clearance is set aside.

 

(2) The Children’s Guardian must grant CVD a Working With Children Check Clearance.

 (3) Publication or broadcast of the name or other identifying information of CVD or of any child referred to in the reasons is prohibited.

Catchwords:

Child Protection – Application for Working with children Check Clearance – where children’s guardian conducts assessment and refuses clearance- Review of refusal by Tribunal – where applicant when 12 charged with indecent assault of 2 year old child, but charge withdrawn – whether applicant poses risk to the safety of children.

Legislation Cited:

Child Protection (Working with Children) Act 2012;
Crimes Act 1900;
Child Protection (Prohibited Employment) Act, 1998
Administrative Decisions Review Act 1997

Cases Cited:

Children and Young People v V [2002] NSWSC 949

Texts Cited:

Nil

Category:

Principal judgment

Parties:

CVD (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Epstein (Applicant)
M Giacomo (Respondent)

  Solicitors:
R E Harper (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s):

2016/00378461

Publication restriction:

Yes - See order 3.

REASONS FOR DECISION

INTRODUCTION

1. CVD applied to the Children’s Guardian for a Working With Children Check Clearance to permit him to work with children.

2. Because CVD had in 2001 as a 12 year old, been charged with an aggravated indecent assault on his 2 year old niece, the Children’s Guardian was required by legislation to conduct an assessment of CVD to determine whether he poses a risk to the safety of children.

3. The Children’s Guardian conducted the assessment, decided that CVD poses such a risk and refused to grant a Check Clearance.

4. This was a review by the Tribunal of the Children’s Guardian’s decision.

RELEVANT LAW

5. Section 4 of the Child Protection (Working With Children) Act 2012 (“the Act”) provides:

6. “The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

7. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.

8. Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.

9. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.

10. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.

11. Section 12 of the Act provides that there are two classes of Working with Children Check Clearances which are:

1. Volunteer – authorising workers to engage in unpaid child-related work;

and

2. Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

12. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance and requirements for the application. It provides:

13 Applications for clearances

1. A person may apply to the Children’s Guardian for a working with children check clearance.

2. An application must:

1. be in the form approved by the Children’s Guardian, and

2. be accompanied by any other information required by the Children’s Guardian, and

3. specify the class of clearance applied for.

3. The approved form must provide for the authorisation by CVD of, and the consent by CVD to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force:

1. the conduct of a criminal record check in respect of CVD,

2. the disclosure of CVD’s criminal history,

3. other inquiries about CVD relevant to the application or clearance,

4. without limiting paragraphs (b) and (c), disclosure of information about CVD relevant to whether CVD may be subject to an assessment requirement.

4. The regulations may:

1. prescribe the fee payable for an application and the manner in which it is to be paid, and

2. require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children’s Guardian.

5. An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children’s Guardian.

13. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. Clause 1(a) of Schedule 1 is “proceedings have been commenced against the person for an offence specified in Clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings).” The offence charged was “aggravated indecent assault of a child under 16 years” under subsection 61M(1) of the Crimes Act 1900 as it then was. Offences under s 61M are included in item (1) (e) of the second Schedule of the Act and therefore gave rise to a requirement that the Children’s Guardian conduct an assessment of whether CVD posed a risk to the safety of children (S15).

14. CVD on 3 May 2016 applied to the Children’s Guardian for a Clearance and the Children’s Guardian undertook an assessment. Under Section 16 the Children’s Guardian may request further information from an applicant for a clearance related an offence or other matter related to the application or clearance and may terminate an application if CVD without reasonable excuse fails to provide such further information within 6 months of the request.

15. On 2 June 2016 the Children’s guardian requested CVD to provide further information described in the written request and this was supplied.

16. Section 18 of the Act Provides:

18 Determination of applications for clearances

1. The Children’s Guardian must not grant a working with children check clearance to the following persons ("disqualified persons"):

1. a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

2. a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

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

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

17. By letter of 30 September 2016 the children’s Guardian notified CVD that his application was refused because he posed a risk to the safety of children.

18. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4) of the Act provides: “An applicant must fully disclose to the Tribunal any matters relevant to the application.”

19. Subsection 30(1) of the Act applies to reviews. It provides:

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

(c) the age of the person at the time the offences or matters occurred,

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

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

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

(g) the person’s present age,

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

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

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

(k) any other matters that the Commission considers necessary.

20. A literal interpretation of “a risk assessment … to determine whether CVD ….poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.

21. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children’.

22. It is provided in subsection 30(1A) of the Act that:

23. The Tribunal may not make an order under this Part which has the effect of enabling the 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 directly 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.

24. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

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

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

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

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

THE EVIDENCE

25. The evidence comprises:

1. Application for Administrative Review;

2. Letter from Children's Guardian to applicant dated 2 June 2016;

3. Statement by CVD’s mother;

4. Character reference by friend of 2 years;

5. Character reference by friend of 5 years;

6. Character reference by anonymous person;

7. Character reference by another friend of 5 years;

8. Character reference by friend of 4 years;

9. Character reference by another friend of 4 years;

10. Character reference by another friend of 5 years;

11. Character reference the CVD’s brother, who is his senior by 19 years;

12. Statement by CVD (10 paragraphs);

13. Further statement by CVD (2 pages);

14. Letter from the Children's Guardian to CVD notifying of decision refusing clearance;

15. Reasons for Children’s Guardian’s decision;

16. Notice of representation by Legal Practitioner;

17. Bundle of documents tabulated and indexed filed under Section 58 of the Administrative Decisions Review Act on 1 February 2017;

18. Letter of instructions from solicitors for applicant to psychologist, Mr David Nagle;

19. Psychological report of Mr Nagle of 2 February 2017 (16 pages);

20. Affidavit of CVD's mother sworn 19 December 2016;

21. Affidavit of CVD's mother sworn 19 June 2017;

22. Affidavit of CVD's wife sworn 19 June 2017;

23. Affidavit of CVD 19 June 2017;

24. Further report by Mr David Nagle;

25. Bundle of 24 documents indexed and tabulated and filed by the respondent on 2 June 2017, including brief of evidence in relation to criminal proceedings against CVD in 2001;

26. Oral evidence by Mr Nagle, Psychologist, on 19 June 2017.

CHRONOLOGY

26. CVD and his sister were placed in the foster care of their parents in about 1990. CVD was about 12 to 14 months of age and suffered Foetal Alcohol Syndrome. It became a long term placement after 3 months and the parents adopted them in 1996. CVD’s cognitive development and motor skills were delayed. At 12 he was reading at about late infants or early primary school level and attending a school for developmentally delayed children. He was being medicated twice per day with Ritalin. He also took a medication to help him sleep each night.

27. On 11 January 2001 CVD’s sister’s 2 year old daughter (“the child”) and baby boy of several months were with the sister and CVD’s mother in the home of CVD and his parents and other siblings, the child had been wandering into CVD’s bedroom and then outside several times looking for CVD. She entered the garage through the side door. There is a verandah at the rear of the home and it is about 10 to 12 steps from the veranda to the garage side door, which is a sliding glass door with a screen door as well.

28. CVD, who was 12 at the time, was alone and masturbating in the garage of his parent's home. There was some blue hand cleansing lotion in a container in the garage and CVD was using that lotion when masturbating.

29. CVD’s sister, her female child (“the child”), and CVD’s mother were in the house. CVD’s mother, followed by CVD’s sister, went looking for the child. It was only about 5- 6 minutes from when the child left the house the last time to when CVD’s mother entered the side door of the garage.

30. The door was half opened and wasn't locked. CVD’s sister was following his mother. It was about 1:20pm or later that CVD’s mother followed by his sister went into the garage. CVD’s mother heard the voices of CVD and the child. She first saw CVD when she saw his head over the top of the car that was in the garage. There was a light on, but the light was not good and it did not light the whole garage.

31. As she went around the front of the car, CVD's mother saw CVD and the child walking towards her. She said that CVD was in front of the child as they came towards her. They were both fully clothed. She said that CVD told her that the child had "wanted to do a wee" or "had done a wee". She could not recall which it was. The child was wearing underpants, but no nappy. There is uncontradicted evidence from police that there was a small puddle on the floor. The mother told her mother that “oh well, she, she wanted to do it, she would’ve done it by now ‘cause she sort of just squats down and does a wee.”

32. CDV’s mother felt the child's shorts and they were dry. She asked CDV what he was doing and he said "nothing". She then turned to the child and asked the same question and [the child] said "'lay down'". The child then sat on the ground and then laid on her back. She or the sister then asked the child a leading question, "what'd you do when you laid down" and the child replied "the cream”. CVD said he was throwing “blue hand”. [CVD] said that the cream was a blue cream used to degrease dirty hands. [CVD] said that they were flicking cream around the garage.

33. Unfortunately, the sister, and mother of the 2 year old child, then asked the child a leading question "did [CVD] put cream on your vagina?" Not surprisingly the child responded to her mother, "yes, [CVD] put cream on my vagina".

34. CVD’s mother asked [CVD]. He said that he did not put cream on the child, but said that they were throwing the cream.

35. CVD’s mother asked the sister to take the 2 year old child out of the garage while she spoke with [CVD]. She told him that she needed to know what had happened and asked him whether he has touched the child's vagina. He denied any such behaviour. He told his mother that he went over to the garage and was masturbating there when the child walked in. She asked him what had happened. He said that he was masturbating and the child came in "and saw me". He said "I covered up quickly".

36. CVD’s mother asked him how the child got cream on her vagina and CVD’s mother says "he said that she did the same as he did, that she put her hand into the blue cream and pulled her shorts and her knickers and put her hand down to her vagina." She said CVD told her the child had a blob of the cream on her hand when she pulled her pants open and put her hand down. She said he also told his mother that after the child did this she complained that it was “burning”. He said he then told her to lie down and he used a towel that was in the garage to wipe the cream off her.

37. They observed CVD and also the child. Both of them were fully dressed.

38. [CVD’s] sister examined the child’s vagina and washed the genital area.

39. CVD’s sister telephoned her husband and asked him to come over. She told him "[the child] went missing for about 5 minutes, we went looking for her and found her and [CVD] in the garage. [CVD] had been masturbating and [the child] had some cream on her vagina".

40. The father of the child drove to the house. The mother of CVD told the police in her interview that the father when he arrived was “very distressed”, “agitated and hugging the child. The child had not appeared to be disturbed. According to CVD’s mother she had had “something.to drink, and she’d been playing, watching a video and all sorts of things”. The father said to CVD’s sister and mother "how the fuck did this happen?" They did not reply. CVD's mother said "can I bring [CVD] out of his room and we can sit down and talk about it?". The father of the child said "definitely not, I won't be able to control myself if I see him".

26. He then asked "Should we get [the child] to a doctor to have her examined?"

27. CVD’s mother telephoned her husband at work and he came home.

28. CVD’s sister made a telephone call. Unfortunately, the father of the child then questioned the child, making some seriously leading questions including "what happened in the shed?", "did you see his penis?", and "did he touch you with his penis?". "did [CVD] put cream on your vagina?" The child responded to the last , "yes, [CVD] put cream on my vagina"

29. In his statement, the father of the child said that the child appeared "bubbly and bright" and he said to her, (after her mother had previously put to her a leading question), "did [CVD] put cream on your vagina?" and the child responded "yes, [CVD] put cream on my vagina"), "what happened in the shed?", to which the child replied "[CVD] put cream on my vagina. The child then said to him, “He told me to lay down on the ground like this …..". He said the child "stood up and laid on the ground with her back against the ground and her arms and legs together". He says that he then cried, apparently in the presence of the child, and asked her further leading questions about whether she saw CVD's penis and "what else did he do to you?", and "did he touch you with his penis?".

30. Unfortunately, when the father and CVD’s sister returned to their home with the child, the father examined the child's vaginal area. He then made several attempts to call the police and eventually reported the matter to the police. When he spoke to the police he was advised to not question the child.

31. The same day at about 4:00pm, Senior Constable Farmer and Detective Davies attended at the home of CVD and his parents. His mother showed them the garage. Senior Constable Farmer noted a blue container on the southern side near the front roller door, and on the other side of the vehicle, (northern side of the garage) a "wet patch" on the floor near the rear wheel of the vehicle. Another officer arrived and took photographs of the garage, house and surrounds. Officer Farmer had a telephone conversation with Detective Rose of the JIT and then waited outside of the home until other officers arrived at 6:10pm.

32. Meanwhile at 4:00pm that day the parents of the child took her (through the sexual assault service) to the John Hunter Hospital where she was interviewed by a social worker and examined by a paediatrician, Dr Jones. This included a vaginal examination. He found no physical abnormality. CVD’s sister told her mother the examination revealed traces of the blue cream in the child’s navel. Both the father and mother of the child were present when the child was examined by the paediatrician, Dr Jones, This was the third time that day that one of the parents or another person had examined the child’s vagina.

33. CVD”s sister said in her statement to the police later that day said that the child had been saying before she attended the hospital "it was just a little sore to wee" but the last time she urinated before the attendance she made no complaint. CVD’s sister also said in her statement provided to the police later that night that the child "doesn't appear to be traumatised. She's not scared or frightened or anything. She is her usual, bubbly self".

34. Meanwhile, the same day at 4:30 pm the father of the child notified the Department of Family & Community Services by telephone of a sexual assault on the child by CVD. He reported that the child was still at the John Hunter Hospital. He alleged that a grandparent had walked into the garage "saw the subject child …. The child being in the state of undress – with what looked to be sperm on her near her vagina and / or her leg". There is no evidence of any person of the child being in any state of undress when CVD’s mother and CVD’s sister saw her in the garage. There is no evidence of anyone observing any substance on the child “near her vagina and / or her leg". It is recorded also that the father reported that CVD was "about 13 years of age". At the time he was approximately 12 years and 2 months of age.

35. Unfortunately the JIRT team treated the allegations of the child being found “in a state of undress” and suspected sperm being observed on her, both made by the father in this report to the Department, as reliable. But they were untrue.

36. It is noted that the father had been given instructions by the police not to question the child some time before 4.00 pm when he father reported the alleged indecent assault to the police by telephone. Then in his telephone conversation with the Department of Family and Community Services instructed by the officer to not question the child about the alleged incident. But by then the parents had asked the 2 year old child extensive leading questions, the mother and the father had each separately examined her vagina and both parents had taken her to the hospital and been present when Dr Jones did so.

37. At about 5:50pm, Detective Senior Sargent Parks of the Police Forensic Services arrived at CVD’s home. He took 15 photographs of the garage, the house, the clothes CVD had been wearing at the time of the alleged assault, and other clothing items. He also took 2 swabs of "the whitish coloured stain on the garage floor" and a sample of the contents of the "blue coloured plastic container".

38. 10 items of clothing, the swabs and the sample were sent for forensic examination. No semen was found on any of the child's clothes or the first swab. The remaining items were not examined.

39. The same day at about 6:10pm, Detectives Rose and Russell of the Joint Investigation Response Team (JIRT) arrived at CVD's home. CVD's mother gave the police the clothes CVD had been wearing at the time of the alleged offence. At the request of the police, CVD also removed the other shorts he was wearing at 6:10pm and gave them to the police. On advice, CVD declined to be interviewed. He was taken by police to a police station. His father also attended. CVD declined to be interviewed because he wished to obtain legal advice. CVD’s father obtained legal advice by telephone and he then told the police "I have obtained legal advice and we have been given instructions not to participate in any electronically recorded interview or to provide any body samples for examination".

40. At the request of the police, CVD’s mother also went to the police station for interview, which occurred at 8:36pm to 9:43pm.

41. On the same day, after the interview of CVD’s mother, plain clothes Senior Constable Rose interviewed the mother of the child (CVD’s sister) from about 10:10pm until 10:30pm.

42. Generally, the mother of the child corroborated her mother's version of events, except as follows:

43. She said that "it was just before 2, I guess, apparently 5 or 10 to 2, [the child] had been quiet and we hadn't heard her for a little while".

44. She said "I thought she was in, you know, [CVD’s] room, they had been in there before, earlier, and she wasn't in there, looked out the back door, couldn't see her out there, came back into ask did she know where they were". She said "they're out, [CVD] and her …. outside playing, so mum and I both went out there, looked in the yard, couldn't see them anywhere, and I thought, this is strange, and the only other place to look was in the back shed,…..' cause [the child] is not allowed out the front or anything, and she is not meant to be in the shed either. Went into the shed and CVD] and [the child] were both there, they were both fully clothed and [CVD] said '[the child] is doing a wee'. I think it was '[the child] is doing a wee' or '[the child] needs to do a wee', something like that.

45. And [CVD] went to go out of the shed and I automatically just went, thought that [the child] had wet her knickers, and pants, and took them off her, and I felt, they were actually dry. I said 'no, you haven't done a wee'.

46. “When asked 'who felt it, yourself or your mum?' she replied it was me because I was taking them off her. And no, they were dry …. putting them back on her and she said, [CVD] put cream on my vagina', [the child] uses the word 'vagina', and, and 'penis', and things like that, she knows what they mean. And I thought that was very strange. I thought …. and I thought what cream would you possibly use out here in the shed, and I said, '[the child] where, where's, what cream?' and we walked around the back of the car and over to the roller door there was a ….. of blue soap, hand-wash sort of soap, and, ok right, how did, I asked her about this, 'how did that get on your vagina?' and she said '[CVD] put it on my vagina'. And I said 'you didn't put it on yourself?' and she said 'no'. And then she said [CVD] told me to lay down’, and this is getting more …. awful, and mum and I were looking at each other and mum goes to talk to [CVD] and [the child] ran out of the shed then”.

47. In that process she did not notice any blue soap, but she says that when she was putting the knickers and pants back on she says she asked the child, a leading question referring to the blue soap nearby, “How did that get on your vagina?”. She did not allege that she had seen anything on the child’s vagina already, but apparently was relying on the previous statement by the child “[CVD] put cream on my vagina” which itself appears to have been elicited by a leading question. She says she then took the child out onto the patio and “I thought I better check out this and took off her pants and things and had a look at her vagina and there was blue hand cream on her…”. She obtained a face washer and washed the genital area, put the child’s clothes back on. She says “I think I changed her knickers, I went and got a fresh pair because they had a bit of blue on them, that was the only thing that had blue on them, the rest of the clothes didn’t”.

48. She continued "I talked to [the child] out on the patio … out on the patio and I thought I had better check out this and took off her pants and things and had a look at her vagina, and there was blue hand-cream on her ….” She said that [CVD]’s 14 year old sister “saw it before I, I washed it off. I asked her to have a look at it to say that ‘this is definitely blue, blue stuff isn't it?', and she said 'yeah'”.

49. Mum talked to [CVD]. I sort of talked to [CVD] as well inside. Then, [CVD] was adamant that he didn't put cream on her at first, he sort of, well, he … lying eventually said that he was actually masturbating. Then she said she was asked about saying that [CVD] was lying. She replied 'oh, yeah, at first he'd said that [the child] was in the shed and he followed her in, but there's no way that [the child] could …'

50. She said in elaboration "he, when we were out in the shed, he had said that [the child] was in here and he came in, but mum ... said 'no, that's not true', as well, there's there's kids can't open that, there's a key for it, to get it open, it's a heck of a ….. a pretty strong door, so [the child] couldn't reach the key or anything, so".

51. She continued "he'd obviously been in there first for her to have gone in there. And he was saying 'no, I didn't do, I didn't put cream on her'. Then he was not saying, he, like ... questioned him, then he sort of said, 'no, no, I didn't do that, I didn't tell her to lay down', and he said that. Mum, mum kept talking to him and I went out with [the child] to get ….. OK, might just talk better with mum, that kind of thing. Eventually I went back into the room, we were trying to tell [CVD] how serious it was kind of thing like, I just want to know what happened kind of thing and [the child] was in, in the room as well, and I asked [the child] and she told me the same story, every time we asked her she said the same thing, that [CVD] put cream on her vagina and, he told me to lay down and she goes, lay down like this, and she laid down on the floor and spread her legs".

52. She continued "mum said to him, asked [CVD] 'what, what were you doing with the cream' and he said 'he was …. he was flicking it about the shed mucking around'. He eventually said, said to mum, that he was masturbating with the cream in there ….".

53. When asked what her mother had said to CVD, she replied 'you were masturbating using the cream, weren't you [CVD]?' or something like that it was….. he didn't say anything at first, and then mum said, repeated it again, and then he said 'yes'. He was embarrassed about that. That's why he, he wasn't saying anything, cause he didn't want to be caught doing that".

54. She then continued "and [the child] was back in the room, like I said she was in and out and stuff when, and [the child], I asked her, 'did you see [CVD’s] penis?' and she said 'yes'. And that worried me as well that she had seen that and we sort of worked out that [the child] walked in on [CVD], caught him doing that, he [CVD] said he cleaned himself up and put himself away, and that sort of thing, and I asked [the child] 'do you do, where, where is [CVD's] penis?', cause I wanted …. what we were talking about was the same thing and she pointed towards his shorts".

55. In answer to a question from the interviewer, she said that "[the child] knows vaginas and penises. And I asked her, 'did [CVD] touch you with his penis?'. She said 'no'. She got a bit confused a couple of times with the, you know, saying about it, ….. penis, once she actually said, 'yes he did', and then, but most of the time it was 'no, he didn't', so …. 'he, she said once that he did … that he touched her with his penis, but all the other times ….".

56. She said that CVD was in the room when this was happening and said that he didn't do it, he didn't touch her with his penis. She said "he said he wasn't lying, he didn't try, yeah. I think [the child] was getting a bit frazzled by us keeping on asking her questions by that stage too".

57. She said "so we worked out that, yes, he, he had been masturbating, and she'd come in, but he still denied the he touched her. He said that she 'got it and put it down on herself, got a big handful and …. down and went and got [the child's] clothes and said 'well, that's not true because there's no blue on her shirt or on her shorts, they were clean….'"

58. CVD’s sister told the police that CVD said that the child used the blue soap detergent and put it on herself. She then said in the interview that she then said "no, that's, that can't be true, [CVD] caught there's and went, went out to the lounge room and grabbed her clothes, which I bought inside, and there's, there's no blue or there's nothing around the inside of her pants or anything like that, only on the inside of her knickers have got a bit of blue, and there was blue on her, on her vagina. And he just said 'no, she did it'".

59. She told the police that the cream on her vagina was blue. She was asked how much there was and she said "oh, it wasn't heaps or anything, it was enough that you could see that it was blue". When asked "what sort of area was it?", she answered "it was on her vagina and around her bottom”. She also said "it was more internal, it wasn't outside on, like on the crutch or anything like that. So it was inside".

60. She said that she had wiped it off and she had been out on the patio when she did this, and she used a washer that her sister located for her. The child was lying down on a chair on the patio and the mother showed the mother's sister.

61. The interviewer asked whether the child touches herself, and the mother replied "yeah. She does. She'll sometimes stick her hand in her vagina and that sort of thing, yeah". When asked whether the child does it when she is clothed or unclothed, the mother responded "only when she has clothes off". And then said "she doesn't, doesn't usually, take her, put her hands down her pants or anything like that".

62. When asked whether the child ever tells stories or untruths, the mother replied "no, occasionally she will tell a little fib like, oh, you did that, he, when you're standing right there, and, as a, jokey kinda thing ….. like she hasn't come out with big whoppers or anything". The mother said in her interview that she believes the child was telling the truth. She said that she did not see any of the blue cream on the child's hands. When asked whether she saw any of it on CVD, she said "I didn't see it, but he had also said that he'd wiped himself and …. when he was masturbating and stuff … he said he fixed himself up when she came in. I don't know whether that was before or after….".

63. She said that she knew that her mother had caught CVD masturbating once before in the past and confronted him and had told the sister that he had stopped that.

64. The following day, 12 January 2001, Senior Constable Rose conducted an interview of the child. The start and end time of the interview is not recorded. The transcript is 22 pages. The child was aged 2 years and 8 months at the time. Her father was present throughout the whole of the interview and actively participated in the interview. He interpreted some questions asked of the child by the police officer and asked the child some questions himself. He asked leading questions of the child that suggested answers. He sometimes answered questions for the child or repeated her answers. It appears that she was seated on her father's lap during the interview.

65. The interview included questions as to what it meant to tell the truth and as to what a lie is. The child did not make an audible verbal response to either of those questions, even though they were repeated.

66. It does not appear that she was able to identify the colour blue, although she did say that the lights on a police car are blue and red. Despite repeated questioning, however, she appeared unable to identify a blue pencil.

67. It was only on the 3rd occasion when she was asked if she went to her grandmother's the previous day that she responded with 'yeah'.

68. When asked what she did at her grandmother's house, she did not respond to that question. When asked who else was at her grandmother's house, she replied "Anthony, and a person … there". When asked whether she went into her grandmother's garage, she answered "yeah" and when asked what happened in the garage, her answer was not responsive. When asked again, and later asked whether she knew where the garage is, there was no audible reply to either question.

69. When asked whether she remembered being in her grandmother's garage the previous day, she said "yeah".

70. When asked what happened there in the garage, she said "she put some, I was ah …. the doctor" and later "I was in doctor's". When asked why she went to the doctors, she did not give an intelligible response. When asked a leading question of "who were you in the garage with?" she replied "[CVD], he was ah, putting cream on my vagina". Then when the question was asked "[CVD] was putting cream on your vagina?" she replied "yeah, I have went to the doctor's yesterday".

71. When asked later "where did you get the cream from?" she replied "ah, in the shed". When she was asked "do you know what colour it was?" she replied "blue". When asked where her vagina is, she indicated. When asked what she does with her vagina, she gave no intelligible answer.

72. When asked "what did [CVD], what did he use to put the cream on your vagina?" she gave no intelligible answer to the question asked twice.

73. When she was asked "how did the cream feel?" she was not responsive and said "ah, [CVD’s] in trouble now?". She was asked "did [CVD] put cream anywhere else?" she gave no intelligible response. Then she said "I want mummy".

74. When the officer asked her whether [CVD] touched her vagina with anything else, she answered "….dummy".

75. When asked "what parts of [CVD's] body did you see yesterday?" she gave no audible reply.

76. She was then asked "[name of child], you said that [CVD] put cream on your vagina. Is that right?" and she replied "yeah". When asked "how did he do that?" her answer was "in the shed". When the question was repeated as "and how did he do it?" she did not respond. When asked what clothes she had on, she did not respond. The question was asked twice.

26. When asked whether she saw [CVD] put cream anywhere else, she gave no audible response. She was also asked "has [CVD] ever put cream on your vagina before?" and she responded "yeah". When asked "when?" she replied "ah, in the shed".

27. She was then asked again what clothes she was wearing, twice, and gave no audible response.

28. When she was asked was there anyone else in the shed besides you and [CVD], she replied "yeah". When asked "who?" she replied "[CVD]".

29. When asked another leading question "and did gran come in after that?" she replied "yeah". When asked a double question of her mother also coming in and what the mother and grandmother said, she was asked 3 times but gave no intelligible answer.

30. When she was then asked "what's this person's name?" she replied "bananas in pyjamas".

31. The child was asked what clothes she was wearing when [CVD] put cream on her vagina. She did not respond to that question. She was then asked whether she had clothes on or they were off. She replied "off". When asked "how did they come off?" she gave no audible reply. When asked whether she took them off of someone else took them off, she replied "[CVD]".

32. She was asked whether he had clothes on and she replied "yeah". When asked what clothes he had on she did not respond. When asked whether they were blue, she gave no audible reply. When asked whether he said anything to her, she gave no audible reply.

33. [CVD], by request of the police, presented at a police station and was formally charged with aggravated indecent assault on a child under 16 years by applying the blue hand cream to the genital area of the child.

34. In March 2001 at the request of the parents of the child, a report was submitted by the police to the prosecutor at the Children's court requesting that the charges against CVD be withdrawn.

35. The police recorded that the child's parents did not want the child to have to give evidence at court as she was of such tender age at the time.

36. The charges were formally dismissed by the Children's court in March 2001.

The Seriousness of the matters which caused the refusal of a clearance

103. CVD was charged in January 2001 with aggravated indecent assault upon a female child (the daughter of his sister), who was aged 2 years and 8 months. The maximum penalty for an adult for such offence was imprisonment for 7 Years, so the legislature regarded the offence as serious.

104. The period of time since the matters occurred and the conduct of the person since they occurred

105. It is more than 16 years since the matter occurred.

106. In those 16 years CVD has not come under notice to the police. On the evidence he has submitted no criminal offence in that period and no conduct has been the subject of any complaint to the Police or the Department of Community Services.

107. There have been no apprehended violence orders made against CVD.

108. He and the mother of the child (his sister) were adopted by their parents, and their parents have adopted 2 other younger children, who have been in the care of his parents for the last 8 years. His younger siblings are a girl 9 years of age and a boy 8 years of age.

109. CVD suffers from Foetal Alcohol Syndrome. As a consequence he has cognitive handicap and is a slow learner. Despite his cognitive handicap and learning difficulties, he completed high school to the end of year 12. He later attended TAFE for "a couple of years" studying welding, car mechanics and panel beating courses.

110. From about May of 2011 he has cohabited with a woman who he married in May 2013. They have a daughter who was born in April 2015 and as at the hearing were expecting another child to be born in about 4 weeks. He has known his wife since they were about 12 of 13 years of age. He is now 28 years of age and she is 1 year older than him.

111. In the period since the matters that gave rise to the refusal, he has until the refusal of a clearance from time to time cared for and / or supervised his 2 younger siblings for his mother. He has done that from time to time for 6 years or so. He also cared for his niece and nephew for about 6 years prior to the refusal.

112. He has also been active in the care of his daughter and that care has included taking her to gymnasium classes and swimming classes and assisting at swimming lessons. Prior to the refusal, he also from time to time took his youngest male sibling fishing, but has not done this since the refusal. He has also assisted his wife when she worked in an early learning centre.

113. The only employment CVD has been able to secure has been working for a fast restuarant in 2015 for 5 months as a maintenance worker on weekends. That involved some direct contact with children. There were no complaints or disciplinary actions against him.

114. His employment with McDonalds was terminated because of absences from work after he "broke my toe outside of work". He has continued to apply for jobs and told the psychologist engaged by his solicitors to do an assessment that "my next plan is to do more training and maybe do a bar attending course".

115. His father died in January 2016 and after his father's death CVD suffered some depression. He has since had counselling, and this is presently continuing fortnightly.

116. The age of the person at the time the matters occurred

117. At the time the mattes occurred CVD was 12 years of age.

The age of each victim of the conduct

118. The victim of the alleged conduct was a child of 2 years and 8 months. She was vulnerable because of her tender age and immaturity, and the fact that when she entered the garage she was not under supervision by, or in the care of, an adult.

The difference age between the victim and the person

119. The child was 10 years younger than CVD.

Whether CVD knew that the victim was a child

120. CVD knew the alleged victim was a child

The present age of CVD

121. CVD is 28 years of age.

The seriousness of CVD's total criminal record and the conduct of CVD since the offences occurred

122. CVD has not been convicted of any crime in his 28 years. He has not been in his lifetime been the subject of any criminal proceedings other than the subject proceedings. The conduct of CVD since the alleged matter occurred has been discussed above. There is no criticism of his conduct in more than 16 years since the alleged matters occurred.

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

123. Any sexual assault of a child of the type that was alleged may result in a child suffering psychological or emotional disturbance, distrust, fear, or other problems extending into adulthood. Those consequences can be quite serious for the child.

124. There are 2 reports in evidence by Mr David Nagle, a psychologist, who conducted interviews of CVD on 28 January 2017 and on 10 May 2017. Mr Nagle's first report was dated 2 February 2017 and is 16 pages in length.

125. He carried out an extensive interview. He carried out a psychometric assessment of CVD using a personality assessment inventory. He reviewed extensive documentation in relation to the matter and prepared a risk assessment using the static–99R 2016 and the Risk for Sexual Violence Protocol (RSVP).

126. In applying the static-99R, Mr Nagle found CVD's score, based on static figures was at the average level. He found that CVD's score for dynamic risk factors was lower than average and his overall risk factor was low.

127. Further information that had not been provided to Mr Nagle for the first report subsequently supplied to him and his supplementary report issued on 10 May 2017.

128. Mr Nagle found that on all the material provided to him, he believes CVD's version of what happened on that occasion be true. One of the factors that lead to that was that there was no suggestion that the child had suffered any trauma, and that if CVD (at 12 years of age) had disclosed that he was masturbating, that would have been extremely embarrassing for him (consistent with other evidence as to his nature) and if he was going to tell a lie about what had happened, it would have been likely that he would have denied masturbation, or any form of sexual activity.

129. He relied also on the fact that CVD had never displayed any sexual conduct to other children, that the child had been in the habit of touching her vagina, that the alleged victim now as an adult has no recollection of any sexual assault, and also CVD, when asked by the police whether he put cream on the child's vagina, said "no" and when asked "did you do anything sexual to the child?" and he said "no I didn't. I don't know how to do the sex thing and she is a little girl and I've got to have a girlfriend my own age to do that".

130. Mr Nagle also expressed concern about the evidence of what the child said which had been tainted because of the child's father’s questioning of his daughter. In police interview where the child reported that CVD put cream on her vagina occurred after both parents had questioned the child using leading questions suggesting the answer and Mr Nagle noted "it was reported in a JIRT interview when questioned 'why she had gone to the doctors'. The child would have been told why she was going to the doctors and this, in my opinion, became the truth".

131. Mr Nagle concluded that the evidence did not establish that an offence of a sexual nature occurred.

132. Mr Nagle reported that "the RSVP is a structured clinical judgement tool that assesses both static and dynamic factors that have been related to risk across sexual offending, psycho-social adjustment, future plans and any other relevant domains. Importantly, the RSVP also allows for consideration of risk management issues. Consideration of those dynamic risk factors relating to sexual abuse suggest that [CVD] would represent a low risk of re-offence.

133. Mr Nagle listed the 9 factors which are protective against re-offending (if he did offend) and 2 factors that would have contributed to risk.

134. He did not depart from his previous opinion that CVD posed a low risk of reoffending (assuming that he did offend).

135. Mr Nagle was cross examined at the hearing. He said that if what happened was that the child saw CVD masturbating and they copied him by putting cream on her vagina, that this did not change his assessment of the risk. He was also asked whether his assessment would be different if what had happened was that CVD caused the child to lie down and then he put cream on her vagina. Mr Nagle said that the assessment of low risk would not change if that was the situation.

Any other information given by CVD in relation to the application

136. The 2 younger children that were adopted by CVD's parents are children of another child of the parents. They are therefore CVD's niece and nephew. CVD's evidence is that that in the period since his father died, he was particularly concerned to try to assist his mother in the care of his niece and nephew. However, in the period since he was refused a clearance, he has not been able to do so unless supervised by his mother. Previously he had cared for them without such supervision and also had them stay with him and his wife overnight. He proposes to provide such assistance to his mother in the future.

137. In a document titled "declaration" and attached to his affidavit sworn 19 June 2017, CVD says that at the time of the offence he was masturbating in a garage having used cream "for removing grease from hands". He said that the child walked through the door and "I quickly turned from being side on to the door where [the child] was, to my back facing her. While I very quickly put my penis away, I hurt it on my zip. [The child] had walked up to the big pot of cream and put her hands into it and she flicked her fingers and cream flew onto the garage walls a few times. I joined [the child] and we flicked the walls a few times. Just as mum was entering garage (sic) [the child] said 'wee-wee' putting her hands in her nappy".

138. CVD relies upon an affidavit of his mother sworn 19 June 2017. She corroborates CVD's evidence that he has been of considerable assistance to her in the care of the 2 younger children adopted by his parents, until he was required to be supervised by his mother after he had been refused a check clearance.

139. In her affidavit of 19 December 2016, CVD's mother gave some detail in paragraphs 6 – 24 of her affidavit. To the extent that any of the material in those paragraphs is inconsistent with the versions that she gave to the police on the day of the event, the Tribunal prefers the original version as it considers that the version provided more than 15 years later is more likely to contain more reconstruction.

Any relevant information in relation to the person that was obtained in accordance with Section 36A of the Act

140. Prior to the refusal to grant a clearance, the niece and nephew of CVD often stayed overnight with him and his wife. CVD also took the nephew fishing.

Any other matters that the Children's Guardian considers necessary

141. Counsel for the Children's Guardian informed the Tribunal that the Children's Guardian neither supports nor opposes the application.

S30 (1) Conclusions as to alleged assault

142. The statement by the 2 year old child that CVD put cream on her vagina was elicited, repeated and reinforced by conduct and leading questions from her parents. The context and the leading questions to the small child by adults to whom she was attached together with the child’s immaturity and lack of understanding of truth and falsity and her extensive involvement by the parents in their suspicions and fears mean that her statements to that effect are wholly unreliable evidence. On all the evidence the Tribunal is satisfied on the balance of probabilities that;

• The allegation that CVD put cream on the child’s vagina is false; and

• there was no sexual intention on CVD’s part in relation to any interactions he had with the child in the incident in 2001

143. There is no other evidence of any abusive behaviour on his part towards a child or other person. On the contrary, numerous character witnesses have observed him interacting with children over many years and have given glowing descriptions of his care of children and involvement with children. There is no criticism by them or anyone else of his behaviour in that regard.

144. The expert evidence of Mr Nagle is that even if the allegation that CVD put cream on the child’s vagina is taken as true, CVD is, amongst the general population, a person of low risk of any further sexual assault.

145. The Tribunal finds on all the evidence that CVD does not pose a real or appreciable risk to the safety of children.

Section 30(1A) of the Act

146. This subsection requires that the Tribunal must not make an order which has the effect of enabling a person to work with children, unless it is satisfied of 2 matters. In accordance with the subsection the Tribunal is satisfied that:

1. a reasonable person would allow his or her child to have direct contact with CVD that is not supervised by another person while CVD is engaged in any child related work; and

2. The Tribunal is also satisfied that it is in the public interest to grant CVD a Working with Children Check Clearance as CVD is likely to provide a worthwhile contribution to the community by his involvement with children and by their care.

Orders

Accordingly the orders of the Tribunal were:

1. The decision of the Children’s Guardian in its letter of 30 September 2016 to CVD refusing his application for a Working With Children Check Clearance is set aside.

2. The Children’s Guardian must grant CVD a Working With Children Check Clearance.

3. Publication or broadcast of the name or other identifying information of CVD or of any child referred to in the reasons is prohibited.

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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: 13 July 2017