DCZ v Children's Guardian

[2024] NSWCATAD 300

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DCZ v Children’s Guardian [2024] NSWCATAD 300

Hearing dates:

14 May 2024

Date of orders:

10 October 2024

Decision date:

10 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
J Herberte, General Member

Decision:

The decision of the Children’s Guardian made on 24 January 2024 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 18 Child Protection (Working with Children) Act 2012

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) 2012 (NSW)

Cases Cited:

BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

BKV v Children’s Guardian [2015] NSWCATAD 65

CDX v Children’s Guardian [2016] NSWCATAD 17

Commission for Children and Young People v FZ [2011] NSWCA 111

CXZ v Children’s Guardian [2020] NSWCA 338

DAI v Children’s Guardian [2017] NSWCATAD 308

DCZ v Children’s Guardian [2018] NSWCATAD 81

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

Category:

Principal judgment

Parties:

DCZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Ms A Zheng (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00053667

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

1. Before the Tribunal is an Application for review of a decision made by the Children’s Guardian (“the Respondent”) on 24 January 2024 to refuse the Applicant’s Working With Children Check clearance (“WWCCC”) under s 18(2) of the Child Protection (Working with Children) 2012 (NSW) (“the Act”). This decision was made following an application made by the Applicant on 22 July 2022 for a WWCCC. As set out below, the Applicant has made other applications for a clearance.

Previous review applications

2. Relevantly, we set out a history of the Applicant’s requests for a WWCCC and the subsequent decisions and review applications.

3. The Applicant applied for a WWCCC on 21 April 2015 citing the purpose for the clearance as “coaching children playing Rugby League football with Illawarra District Rugby League”. He was granted a volunteer clearance on 26 May 2016, following a risk assessment undertaken in accordance with s 15 of the Act. This risk assessment was prompted due to charges of child-related sexual offences, where the complainant was the Applicant’s son, who was then 5 years of age. The charges were dismissed.

4. On 1 August 2016, the Respondent received further information from the NSW Ombudsman that there was certain information held by the NSW Department of Family and Community Services (FACS). The information is summarised in a related decision, discussed below DCZ v Children’s Guardian [2018] NSWCATAD 81 (“the 2018 decision”) at [3] – [9]:

3 That information was that, as well as allegations of sexual abuse to the Applicant’s son, there were also allegations of sexual harm to the Applicant’s daughter and step daughter. As a result, a further risk assessment was carried out.

4 The information from FACS was that, notwithstanding the fact that the Applicant had been acquitted of the charges relating to his then five-year old son, the Department had sustained a finding of “confirmed, register (ongoing)” in relation to the alleged sexual abuse.

5 Further information provided by FACS showed that in 1987 another notification was made in relation to alleged sexual abuse of the Applicant’s son and daughter. The Department noted that family law proceedings between the Applicant and his wife led to consent orders that contact between the Applicant and the children should be supervised by his wife and that the Applicant would seek psychiatric treatment. Subsequently, it was ascertained that the Applicant was having contact with the children without supervision, contrary to the Court Order.

6 Updated information provided by FACS showed that the Applicant’s stepdaughter alleged that she had been sexually assaulted by the Applicant. She was interviewed by officers of the Department in December 1986. There is no record of any finding made by FACS in respect of this allegation.

7 There was a further notification to FACS in January 1989 that the Applicant had moved back into the matrimonial home and was again sexually assaulting his son. However, when the son was interviewed by FACS officers the allegation was not substantiated.

8 In 1993 the Applicant’s daughter, then aged 8, alleged that he had sexually assaulted her. The daughter was interviewed by the police and was removed from her parents’ care. The daughter subsequently retracted the allegations and was returned to the care of her parents.

9 After receiving the further information from FACS via the NSW Ombudsman, the Office of the Children’s Guardian carried out a further risk assessment of the Applicant. This was based on the fact that the original decision to grant a clearance to the Applicant was based on incomplete information.

10 In conducting the further risk assessment, the Office of the Children’s Guardian considered that there were additional concerns regarding other allegations of sexual harm towards the Applicant’s son, daughter and stepdaughter over a period of approximately fifteen years. The Children’s Guardian took into account various references provided in support of the Applicant, “his significant child-related employment of almost 30 years without incident and that he has no criminal records”. However, the Children’s Guardian considered that the seriousness of the matter that prompted the risk assessment, the age and vulnerability of the complainant at the time, and the fact that there were multiple complaints of alleged sexual harm outweighed the Applicant’s positive child related employment and the passage of time since the alleged sexual harm. The Children’s Guardian was satisfied that the Applicant posed a risk to the safety of children.

11 Accordingly, on 28 April 2017 the Children’s Guardian cancelled the Applicant’s Working With Children Check clearance under s.23 of the Child Protection (Working with Children) Act 2012.

5. The 2018 decision related to an application filed by the Applicant for administrative review of the 2017 cancellation decision. Relevantly, the Applicant set out the following grounds for the review at [12] in the 2018 decision:

(1) the passage of time between the alleged offences and the application for review;

(2) the fact that the Applicant was found not guilty of the alleged sexual offence in 1988;

(3) the fact that the Applicant has no criminal record;

(4) the fact that the accusations were retracted by the complainants;

(5) that FACS made further investigations in 1989 and 1993 that were not sustained and those facts were not proven in court; and

(6) that the Applicant had successfully participated in child related employment for up to 30 years with no complaint.

6. In support of the application in the 2018 decision, the Applicant relied on the following documents at [13]:

(1) two references;

(2) his statutory declaration dated 11 April 2016;

(3) a National Police Certificate dated 4 April 2016;

(4) an affidavit by his daughter affirmed 8 April 2016;

(5) an affidavit by his son affirmed 8 April 2016;

(6) affidavits by Erika Winkelbauer and Barry Jones; and

(7) an expert report by Bradley Jones, forensic psychologist, dated 31 August 2017.

7. In the 2018 decision, the Tribunal affirmed the decision of the Children’s Guardian made on 28 April 2017 to cancel the Applicant’s Working With Children Check clearance. Importantly, at [176] the Tribunal found:

Nevertheless, noting, as the Respondent submits, that the Applicant provided no evidence of any steps taken to address any issues relating to his behaviour, including his failure to consult a psychiatrist as he was required to do by the Orders to which he consented in the family law proceedings, the Tribunal finds that the Applicant poses a real and appreciable risk to the safety of children.

8. On 22 July 2022, the Applicant again applied for a volunteer clearance nominating “clubs or other bodies providing services to children as the child related-sector”.

9. On 2 September 2022, the Applicant was the subject of a risk assessment by the Respondent. An interim bar was placed upon the Applicant due to his records and prior history.

10. On 2 September 2023, the Applicant’s interim bar ceased to have effect. On 22 January 2024, the Applicants clearance was refused, which has led to this review application being lodged with the Tribunal on 6 February 2024.

11. In the grounds for this application, the Applicant refers to not having any criminal charges for 30 years, and he has only one conviction of assault on a child and he states “I think I have served my time for that stupidity”.

12. Unlike the 2018 Tribunal proceedings, the Applicant was not legally represented.

Legal Principles

13. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

14. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

15. Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

16. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act.

17. Section 18 of the Act constrains the Children’s Guardian from granting a WWCCC if, following a risk assessment the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

18. To determine whether a person is a risk to the safety of children, the Respondent must carry out a risk assessment if it becomes aware that DCZ is subject to a risk assessment (see section 15 of the Act).

19. As the Respondent was aware of the above matters, and following the undertaking of a risk assessment under s 15 of the Act, DCZ’s WWCCC was refused under s 18(2) of the Act.

20. Subsection 27(1) permits a person who has been refused a working with children check clearance by the Children’s Guardian to apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 within 28 days after notice of the decision was given to the person. The decision under review is dated 24 January 2024. The Application was filed on 12 February 2024. The Application was lodged within the 28 day prescribed period.

21. As the Respondent submits, in determining an application for review, the Tribunal must decide what is the correct and preferable decision having regard to the material before it (Administrative Decisions Review Act, s 63).

22. As the Respondent has correctly submitted:

23. Neither party bears an onus in an application for review under s 27 of the Act: citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39] - [40].

24. An application under s 27, a clearance may not be granted subject to conditions: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [36]- [45]; BKV v Children’s Guardian [2015] NSWCATAD 65; CDX v Children’s Guardian [2016] NSWCATAD 17 at [36].

25. The scheme of the Act is protective and not punitive: DAI v Children’s Guardian [2017] NSWCATAD 308; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. Further, “the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act”: s 4.

26. The Tribunal must consider each of the matters in s 30(1)(a)-(k) of the Act in determining this application. The issue for the Tribunal to consider is whether we are satisfied that the Applicant does or does not pose a risk to the safety of children based upon the material before us.

27. The approach to the assessment of risk is explained by Beech-Jones J (as he then was) in BKE v Children’s Guardian [2015] NSWSC 523 (BKE) at [33]:

“…Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

28. The Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 (“CXZ”) describes the assessment of risk as being a single process, instead of what was incorrectly described previously as, a mandatory three-step process (see CXZ at [55]). Simpson JA, describes that process in CXZ at [57], as:

“…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well-founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

29. Where there are multiple considerations, the Tribunal is to evaluate the accumulated weight of the allegations in terms of risk. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to the safety of children.

Background

30. The Tribunal in the 2018 decision set out a useful chronology at [25] – [59], which is not in dispute:

Counsel for the Respondent has filed a useful chronology describing events that are uncontroversial and the Tribunal has had recourse to that document for the purpose of preparation of these reasons.

The Applicant was born on 22 November 1953.

The Applicant and his (now deceased) wife were married on 25 September 1982, although they had lived together since a date in 1976.

The Applicant and his late wife had two children, a son born on 13 September 1981 and a daughter who was born on 3 May 1985. The applicant’s wife had a daughter by a previous relationship. She was born on 23 February 1970. She lived with the parties until a date in 1989.

The parties separated in April 1984 and reconciled in April 1985.

They separated again on 30 December 1985. That same day, the Applicant’s wife attended at the Wollongong Local Court and laid an Information alleging that earlier in the day the Applicant had assaulted her daughter, the Applicant’s stepdaughter.

The Applicant attended Court on 17 January 1986 and entered a plea of guilty. The Magistrate recorded a conviction and placed the Applicant on a recognizance under the provisions of s.558 of the Crimes Act 1900 (NSW) for a period of 12 months. It was a condition of the recognizance that the Applicant was not to approach or contact or accost his stepdaughter.

There was a subsequent reconciliation and a further separation in 1986.

On 28 November 1986 the Applicant’s wife commenced proceedings against him in the Local Court at Wollongong, seeking orders for maintenance, custody, guardianship and restraining orders under the provisions of the Family Law Act 1975 (Cth).

On 1 December 1986 a notification was made to FACS that the Applicant had previously interfered with his stepdaughter and had sexually abused his son. The following day, officers of the Department interviewed the son, the stepdaughter and the Applicant’s wife.

On 4 December 1986 the Department commenced care proceedings in the Children’s Court.

On 17 December 1986, the Applicant was interviewed by Police in relation to allegations made by his son. He signed a statement making certain admissions. He was charged with committing an act of indecency with a child under the age of 16 years under s.61E(2) of the Crimes Act.

The following day the Children’s Court made certain findings and ordered the children be taken to a place of safety until 19 February 1987. Any contact between the Applicant and the children was to be supervised by the mother.

On 16 February 1987, the Applicant entered into Consent Orders in the Wollongong Local Court to resolve the Family Law proceedings between them. The Orders included:

(1) maintenance payments for the parties’ son and daughter;

(2) the mother to be granted sole custody and guardianship of the son and daughter;

(3) the mother to have exclusive occupancy of the former matrimonial home;

(4) the Applicant to be restrained from molesting, harassing or threatening the mother and stepdaughter;

(5) the Applicant to be restrained from entering or loitering about the former matrimonial home;

(6) the Applicant to seek the advice of a psychiatrist; and

(7) the Applicant to have reasonable access to the parties’ son and daughter.

The Applicant attended Wollongong Local Court on 2 June 1987 in relation to the criminal charge against him. He initially pleaded guilty but subsequently changed his plea to not guilty.

On 2 December 1987 the Applicant’s wife notified FACS, alleging that the Applicant was interfering with their two children.

On 8 December 1987, at the Wollongong Local Court, the Applicant was committed for trial.

On 26 August 1988, at the trial of the Applicant in the Supreme Court, after certain evidence, relating to a statement by the Applicant, was excluded, the Crown offered no evidence and the Applicant was discharged.

On 3 January 1989 a further notification was made to FACS in respect of the Applicant’s son. After officers of the Department spoke to the child, the allegation was not substantiated.

On 21 April 1989, a further notification was made to FACS that the Applicant was continuing to abuse the children. Officers of the Department investigated the notification on 24 April but the allegation was not substantiated. The Applicant and his wife told the Department that the stepdaughter was no longer living with them.

On 3 August 1993 the Applicant’s daughter alleged that the Applicant had sexually abused her. She was interviewed by officers from FACS and the Police on 23 August and signed a statement.

On either 24 or 25 August the daughter retracted most of the allegations.

On 28 October 1993 in an assessment report from the Child Protection Unit, Camperdown Children’s Hospital was said to have concerns that the daughter had been sexually abused but may have recanted her allegations because of separation from her family and her mother’s disbelief and lack of support.

On 21 January 1994 a report was made to FACS that the Applicant’s son and daughter had told the stepdaughter that the Applicant had sexually abused them.

On 23 November 2009 a report was made to FACS about concerns that the applicant had been seen kissing his grandson on the lips. The notifier also alleged that the Applicant had previously abused the child’s mother, his daughter.

The Applicant applied for a Working with Children Check Clearance on 21 April 2015.

On 3 August 2015 the Respondent gave notice of an interim bar and requested further information from the Applicant.

The Respondent again sought further information on 9 September 2015.

On 21 March 2016 the Respondent issued a notice of proposed refusal to the Applicant. However, on 26 May 2016, the Respondent granted a Working with Children Check Clearance to the Applicant.

On 14 July 2016 the NSW Ombudsman provided information to the Respondent concerning various allegations relating to the Applicant.

The Respondent received further information from FACS on 1 August 2016.

On 10 November 2016 the Respondent requested further information from the Applicant.

The Respondent issued a notice of proposed cancellation of clearance to the Applicant, with attached reasons.

On 28 April 2017 the Respondent issued to the Applicant a Notice of cancellation of his Working With Children Check Clearance with accompanying reasons.

The Applicant filed his Application for Review on 7 June 2017.

31. Since then, the Applicant has had no further adverse relevant criminal matters or allegations made against him from when the previous application was heard before the Tribunal. This is not in dispute.

Evidence

32. The applicant relied upon:

1. The application filed on 6 February 2024, which attached the following documents.

2. A copy of a letter from the Crown Solicitor’s Office to the Applicant dated 13 July 2023.

3. A handwritten note to the Tribunal requesting the matter be listed for hearing, received 1 February 2024.

4. A letter, with the date cut off from the Crown Solicitor’s Office.

5. A statement of attainment for Cert III in Sport and recreation dated 8 January 2013.

6. A statement of attainment for first aid 11 November 2023.

7. A certificate for attaining Level 2 Sports Trainer expiring 8 April 2024.

8. Undated letter from Barry Jones, which appears to be a character reference.

9. Email 8 January 2024 from Erika Winkelbauer, which appears to be a character reference.

10. Award noting the Applicant was a finalist for the Volunteers of the Year 2012 (Sport and Recreation) Award.

11. 8 August 2011 reference by Neil Ballinger in support of an application for an award.

12. Undated and signed letter from the Applicant.

13. Undated and signed letter from the Applicant’s daughter.

14. 21 pages of handwritten submissions.

33. The Applicant filed no other evidence. He was cross-examined. His daughter was also cross-examined.

34. The Respondent relied upon:

1. S 58 bundle filed on 26 March 2024 (with pages 43, 44, 48 and 54 being replaced).

35. Written submissions were filed.

36. In his oral evidence, the Applicant said that he had been training football players for many years, and he still carries strapping in the boot of his car to strap children up if they, or, their parents ask. The Applicant does this in the car park. He said that when his children were growing up there would be 20 or 30 children at his place. His wife would often cook breakfast for them.

37. In cross-examination by Ms Zheng of counsel for the Respondent, the Applicant confirmed his reference to the comment “I think I have served my time for that stupidity” related to the act of assaulting his step daughter in 1995.

38. The Applicant did not challenge the evidence he gave to the Tribunal in the 2018 decision.

39. When asked why he had made admissions to the Police when he was charged in 1986, the Applicant said it was “to take the easy way out” so his son did not have to go to court. We note in the reasons for the 2018 decision, the Tribunal found “He said that he made the admissions so that he could see his children. His wife had told him to tell the Police what he had done.”

40. The applicant said he had no recollection of the two hearings, the committal hearing and the supreme court hearing.

41. The Applicant agreed that despite there being orders in place restricting him from seeing his son, he continued to do so with the knowledge of his then wife.

42. The Applicant was questioned about an investigation undertaken by an officer from child welfare in December 1987 concerning allegations he sexually assaulted his son and daughter. He was asked whether he denied the allegations of sticking his finger in his sons bottom and his tongue in his daughter’s vagina. The Applicant replied “I can’t see how I could do that. No. I would not do those things. I have no recollection of those things.” He was asked whether he had touched his daughter “in the vagina a number of times” as disclosed by his daughter to a police officer. The Applicant said “No, I never have done them. I wouldn’t have done it. I was not concerned”. However, he had no recollection about discussions concerning these allegations with his wife, nor, the investigator. Ms Zheng asked the Applicant whether he didn’t do these things, or if he would not have done these things because of what he knows now. He said “I know I would not have done it”. He said he had no memory of not doing these things but believed he did not. The Applicant said he participated in a headspace course about children in abusive relationships. He agreed that he did not undertake any counselling with a psychiatrist as ordered by the Family Court in 1996. He did not think it was relevant.

43. The Applicant did not accept there was a pattern of allegations being made against him concerning child sexual abuse. He blames his stepdaughter for putting ideas into his children’s head which led to complaints being made against him.

44. As to his relationship with his stepdaughter, the Applicant agreed that his behaviour amounted to bullying a small child. He denied that his behaviour towards her was psychologically harmful. He also denied that he was not in a position of power in that relationship with his step daughter.

45. The Applicant said that since the 2018 decision he had strapped some children from the boot of his car at football games at their, or their parents request. The Applicant also said he assesses head injuries at football games and advises whether players can return to the field. Most of the players are over 18, there may be an occasional 17 year old. He denied that he was volunteering in an official capacity.

46. The Applicant’s daughter provided a statement and was cross examined. The statement is undated and not signed. However, it was adopted in oral evidence.

47. The Applicant’s daughter said that her half sister and her boyfriend told herself and her brother to make allegations of sexual abuse against their father. After an investigation the Applicant was cleared of the allegations. She said that her and her brother admitted “that it was all made up!”. The witness said she has a clear recollection of being coerced to make allegations against her father.

48. In cross examination the witness said she wrote the statement to support her father being granted a WWCCC. She said she was not close to her half sister and there was a significant age difference between them. She recalled her parents having a “good relationship” and she was about 11 or 12 years of age when they separated.

49. We note the following findings about the daughters affidavit evidence in the 2018 decision, which we adopt:

In her affidavit of 8 April 2016, the Applicant’s daughter deposed that she was aware that her affidavit was to be used for an assessment by the Respondent to determine whether the Applicant should be granted a Working With Children Check clearance. She deposed that she was aware of the allegations against her father but had no independent memory of the events. She further deposed that she had no recollection of any abuse, sexual or otherwise, and does not believe that she was abused by him in any way.

The Applicant’s daughter went on to depose that her half-sister, the Applicant’s stepdaughter, coached her to make allegations of a sexual nature against her father.

She deposed that she and her father now have a very close relationship and have done so for many years, and:

I currently live with my Father and my two children who are aged 13 and 9. He looks after [them] often and I have no absolutely no concerns about leaving them alone with him.

50. We have placed less weight on the daughter’s evidence that she has a “clear recollection” of the events given it is inconsistent with “having no clear independent memory of the events” as set out in the 2016 affidavit.

51. No other witnesses were required for cross-examination. The other documentary evidence relied on by the Applicant was unchallenged.

52. The reference by Neil Ballinger was tendered in the 2018 decision and the following findings were made which we also adopt “The reference by Neil Ballinger dated 8th August 2011 related to the Applicant’s work in coaching junior and senior rugby league football and described him as a “very strong standing person within the community”.

53. We have reviewed and accept the same findings concerning the Applicants son, as found in the 2018 decision:

The Applicant’s son deposed in his affidavit of 8 April 2016 that he, too, was aware of the use to which his affidavit was to be put. He deposed that he was aware of the allegations against his father but has no independent memory of the events including the Police and the Court proceedings. He deposed that he had no memory of any abuse, sexual or otherwise, and does not believe that he was abused by his father in any way.

The Applicant’s son went on to depose that he recalled his mother telling him before she died that she believed that her elder daughter, the Applicant’s stepdaughter, had pressured him into making a complaint. He stated that he had five sons and his father regularly looks after them.

54. We have considered the evidence of Erika Winkelbauer, and the findings in the 2018 decision:

…deposed that she was aware of the purpose of her affidavit. She said that she had known the Applicant for over 15 years and was aware of his activities with a Junior Rugby League Club as a coach, sports trainer and club secretary. She relied on him to supervise her four children who play for the club.

Ms Winkelbauer deposed that she was not aware of any incidents in relation to the Applicant that would cause her to be concerned for his ability to supervise or work with children.

55. A similar reference was provided in an unsigned email purportedly from Erika Winkelbauer dated 8 January 2024. We do not place significant weight on this evidence as it is unsigned and does not refer to the various allegations contained in the Applicant’s history. However, we accept it gives a favourable recommendation about the Applicant.

56. Barry Jones provided an undated reference supporting the good character of the Applicant. Mr Jones says he has not personally witnessed any inappropriate behaviour by the Applicant against any person. The reference does not refer to the many allegations made against the Applicant and its weight is duly reflected in this regard.

Submissions

57. The Applicant’s made oral submissions. He said he has had “countless friends that come over and stay at our house, transport children to and from football.”

58. The Respondent relies on documents which are 30 years old. He said: “What I have done for the community is commendable” and that he had been given an award in 2011. He said he was given a WWCCC that was cancelled in August 2016.

59. The references attesting to his character, he said demonstrates that he has coached the children of Barry Jones over the years. He now takes one of “their kids to games.” Erika Winkelbauer is a single mother with 6 children. He said he had “taken her kids to games and had them stay overnight.”

60. The Applicant said: “I can understand where the guardian comes from with what they do. But giving a life sentence for something over 30 years ago, this is an injustice on the judicial system. They have not looked into my background and what I have done for the community and been involved since 2009, football both white and aboriginal children, kids in the care cup. This helps kids in care. My hours spent in the community in the last years is thousands of dollars helping kids. I have paid kids registration to do sport where parents can not pay for them.”

61. Counsel for the Respondent, made an oral submission at the conclusion of the evidence as well as relying on her written submission filed on 1 May 2024. Ms Zheng submitted that the Tribunal should place significant weight on the 2018 decision for the following reasons, which we accept:

1. The 2018 decision was made under the same legislation, applying the same legal test.

2. The body of evidence is largely the same.

3. The Applicant has not put on any evidence which shows a material change in his circumstances.

4. The applicant has continued to volunteer in the last few years, despite not having a clearance.

62. We accept the Respondents submissions that the Tribunal is not bound by the 2018 decision and must carry out the legislative function in reviewing the application itself. We have done so. However, we have placed weight on the findings in the 2018 decision where there is no new evidence and after undertaking our own consideration of the material before us. The principle of ‘comity’ gives us some guidance in doing so.

63. The Respondent submits that the evidence discloses:

1. allegations of sexual misconduct towards the Applicant’s son, some of which led to charges that were dismissed;

2. allegations of sexual misconduct towards the Applicant’s daughter;

3. allegations of sexual misconduct towards the Applicant’s stepdaughter;

4. a conviction of assault towards the Applicant’s stepdaughter; and

5. other allegations of criminal; or discreditable conduct.

64. It is submitted that the matters forming the allegations against the Applicant are objectively serious. The Applicant has admitted and not recanted that he assaulted both physically and verbally his step daughter. He continued to do so during the time he lived with her. He has demonstrated no remorse or insight into his behaviour.

65. In relation to the allegations of sexual offending against the Applicant’s son, the Tribunal should find that the events occurred. However, the allegations concerning his daughter have been denied by her and the Tribunal should not make a positive finding. However, the Respondent submits that the approach as set out by Beech-Jones J in BKE should be applied.

66. The Respondent submits that despite the family court orders, the Applicant has taken no remedial action to satisfy the Tribunal he is not a risk to the safety of children.

Conclusions

67. The Applicant is 70 years of age. He has been involved in children’s community sport for over 30 years. He is a plasterer by trade and has had two marriages. Relevantly, the Applicant has a step daughter and two children to his now deceased ex-wife. They were married in 1982, although they had lived together for a number of years before the union.

68. The step daughter was about 6 years of age when she started to live with the Applicant. The Applicant and his ex-wife had two children, a son and daughter.

69. The couple separated in April 1984 and reconciled in 1985. They then separated again in December 1985. The ex-wife brought a private prosecution in the Local Court of NSW in 1985. The Applicant pleaded guilty to assaulting the step daughter and was convicted on 17 January 1986. This is not in contest.

70. The couple reconciled again and then separated in 1986. In November 1986, the ex-wife commenced proceedings for maintenance and custody and guardianship of the children under the Family Law Act.

The 1985 conviction of assault against the step-daughter

71. The Applicant pleaded guilty to a charge of assaulting his then 15 year old step daughter. He was convicted and was placed under a 12 month good behaviour bond. This is not in dispute and we find accordingly.

The family law proceedings

72. Relevantly, the family law proceedings include allegations that the Applicant was verbally and physically abusive towards his step daughter. He accepts that he was. We find accordingly.

Alleged sexual assault of his daughter

73. In documents from the Department of Family and Community Services (FACS) a transcript of interview between investigators and the step daughter discloses allegations that the Applicant assaulted her when she was about 7 years of age until she was 11. These allegations were disclosed in an investigation concerning allegations that the Applicant assaulted his son.

74. No criminal proceedings were brought. We are unable to make any positive finding in relation to these allegations either way.

Criminal proceedings concerning the Applicant’s son

75. FACS on 1 December 1986 received notification that the Applicant had sexually assaulted his son. The son alleged his father played “with my diddle and my bum” while in bed with him. He said that he “touched daddy’s diddle” to his bum which hurt. The ex-wife said similar allegations were raised by the step daughter.

76. The Applicant initially pleaded guilty to charges of sexual assault and later not guilty to sexual intercourse with a child under 10 years and commit act of indecency with person under 16 years.

77. The Applicant had initially admitted that he had played with his son’s penis in a signed statement. The court in the criminal proceeding ruled the statement inadmissible as it was obtained under coercion from his ex-wife in the family court proceeding. The prosecution failed as there was no evidence to present as the son could not recall the events.

78. We are not satisfied that we can make a positive finding that the events did or did not occur. However, it seems odd that a father would commit in writing to playing with his son’s penis and later retracting that statement on the basis of coercion in a family law proceeding. In any event, we can not make a positive finding either way. We are unable to find that the events did or did not occur.

79. We also find that the Applicant chose to ignore orders of the family court about when and how often he could visit his son. This is not in dispute.

Allegations concerning the daughter in 1987

80. Another incident was alleged to have occurred in 1987. The events were disclosed in the investigation concerning the allegations about his son. The son said his father stuck his fingers up his bum and put his tongue in his sister fanny.

81. We are not able to make a positive finding that the events did or did not occur. The Applicant believes the allegations are untrue but could not recall them nor did he deny them.

Further allegation in 1989 regarding the son

82. Further reports were made to FACS on 3 January 1989 and 21 April 1989 in relation to the Applicant interfering with his son. The ex-wife did not believe the allegations and said the step daughter was making stories up. We are also unable to make a positive finding either way in relation to these allegation.

Allegations made by the daughter in 1993

83. Reports were made to FACS on 23 August 1993 to the effect the Applicant sexually interfered with his daughter. The daughter gave a version to the investigator that her father touched her vagina during bath and shower times. Hospital records show no evidence of sexual assault, but they are not conclusive that there was no assault. At the next interview the daughter withdrew the allegations on 24/25 August 1993. The daughter said she was encouraged by her half sister to say these things.

84. Given the daughters evidence in this hearing and the unsubstantiated investigation by FACS, it is unlikely these events occurred. We can not make a positive finding they did.

83. A final record of an alleged assault by the Applicant against his son and daughter was made on 21 January 1994. There is no corroborating evidence that this occurred and we make no positive finding either way.

84. We have considered a number of allegations made to FACS and DCJ from 1999-2005, 2009 and 2016, but we place no weight on them.

85. However, we find that even in the absence of positive findings of fact about the allegations, apart those admitted by the Applicant, we conclude that the circumstances surrounding the possibility of the allegations occurring concerning the step daughter, son, and the daughter, evidences a real and appreciable risk to the safety of children.

Section 30 (1) considerations

88. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

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

89. The matters of concern relate to a period between late 1985 and 1994. Although there was only one conviction in the Applicant’s criminal record concerning the 1985 assault and a minor driving offence, the report of allegations of sexual assault are serious. The allegations span a period of time and involve the sexual abuse of children.

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

90. A long period of time, some 38 years, has passed since the allegations and conviction was made. There is also an absence of more recent offending or complaints being made.

91. However, the Applicant has not led any evidence to demonstrate his remedial action since that time. He admitted to poor regulation concerning his step daughter and ex-wife. He has not adduced any evidence of professional assistance he has received to address his predisposition to dysregulated behaviour with children. We have also considered that there has been no recent complaints made against the Applicant.

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

92. The Applicant was 33 years of age at the time of the 1986 conviction. He was 35 years of age at the time of the 1993 reports to FACS and 40 years of age in 1994.

(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.

93. The son was 5 at the time disclosures were made. His daughter was 2 years of age. The step daughter was 15 years of age.

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

94. Variously, the Applicant was 26-31 years older than the victims.

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

95. It would have been obvious to the Applicant that the victims were children.

(g) The person's present age.

96. 70 years.

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

97. As set out above, the Applicant was convicted of assaulting his step daughter and a minor traffic matter.

98. He was charged with the offences concerning his son which were dismissed.

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

99. In the 2018 decision the Applicant relies on the Assessment by Bradley Jones, Forensic Psychologist, dated 31 August 2017, which states that the Applicant “poses a low risk for committing any offence, sexual or otherwise”. The Tribunal found that “Mr Jones maintained his view in cross-examination, even after it was put to him that the Applicant had not disclosed to him that he had pleaded guilty to an assault on his stepdaughter in the Local Court on 17 January 1986.”

100. The Tribunal went on to find :

The Tribunal notes that the Applicant said in cross-examination that he had not mentioned this to Mr Jones because he could not remember at the time and just answered the questions he was asked. The Tribunal found the evidence of the Applicant unsatisfactory on this issue.

If the Applicant were to assault a child in the future, whether sexually or otherwise, the impact on such a child would be considerable.

101. No further evidence is before the Tribunal in this regard. We accept the findings made in the 2018 decision based upon the report of Mr Jones and the cross examination that followed.

102. The Applicant did not call Mr Jones as a witness. There is no evidence before us about any changes that would be relevant to a change in the Applicant’s circumstances. Even with the passage of 6 years since the 2018 decision. And no new allegations being made against the Applicant, he has not provided further evidence of whether he is a risk to the safety of children. The lack of evidence and steps taken by the Applicant does not lead us to a different finding as that made in the 2018 decision.

(i1) any order of a court or tribunal that is in force in relation to the person

103. Not relevant

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

104. The Respondent raised whether the Applicant has demonstrated a disregard for the protective regime in so far as he continues to volunteer, albeit at the request of parents, at sporting events in strapping children for football and assessing head injuries. We can not make any conclusive finding about this. However, the Applicant said he was strapping children for games but he considered this as “not volunteering”. His argument may be a matter of semantics, but one, which, we assume the Respondent may be making further enquiries. For our purposes, we draw an inference that the Applicant shows a poor understanding of the objects of the Act and the seriousness and significance of the WWCCC regime. This is because, concerningly, he did not see his current activities as any possible contravention of the legislative regime.

105. The statements of Mr Jones and Ms Winkelbauer and the letter of Mr Ballinger, with respect, are of little weight and do not advance the Applicant’s case to any degree.

106. With the exception of the matters referred to above, there is insufficient evidence for the Tribunal to find that the matters of sexual assault actually occurred.

107. However, we remain concerned, as the 2018 Tribunal was, as to whether the Applicant may have in fact committed some of the alleged abuse. We find there is a pattern of allegations over the period from 1986 to 1994. In the 2018 Decision the Tribunal found :

The Applicant’s own evidence was unsatisfactory and he was not a credible witness in his own case. His statements that he could not remember significant matters, including going to court and pleading guilty to an assault on his stepdaughter, even when reminded by reference to a reasonably contemporaneous affidavit, did not ring true.

108. We make a similar finding. When asked to deny specific events occurred, the Applicant said he “believed” they did not, or said they did not. He could not recall specifically a number of matters. He also agreed that he believed some of the assaults did not occur based upon what he had read.

109. The Tribunal in the 2018 decision found:

As there is evidence, including a conviction and some admissions in family law proceedings in 1987, the Tribunal concludes that there is prima facie evidence that the applicant poses a risk to children. Whilst there is no onus on either the Applicant or Respondent, it is clear that the Applicant’s written and oral evidence does not rebut this risk.

110. We also make that finding.

111. We have taken into consideration the lengthy period of time, at least 30 years, since any allegations were made against the Applicant. However, the effluxion of time itself does not eliminate risk. The Applicant has not undertaken any professional assistance in dealing with his prior behaviour including physical violence and assaults and verbal aggression against children. He provides as a ground for allowing the application being “I have served my time” referring to the assault on his step daughter. Of concern is the Applicant’s lack of insight into the psychological harm he could have caused his step daughter due to his behaviour and his denial that he was in a position of power over her as a parent. This weighs against granting the application to enable the applicant to hold a WWCCC.

112. We have considered Applicant’s son and daughter’ evidence, that they have no independent recollection of any abuse having taken place. We also note they have allowed their father to spend time with their children.

113. Nevertheless, noting, as the previous Tribunal did, “that the Applicant provided no evidence of any steps taken to address any issues relating to his behaviour, including his failure to consult a psychiatrist as he was required to do by the Orders to which he consented in the family law proceedings, the Tribunal finds that the Applicant poses a real and appreciable risk to the safety of children.” We find his lack of insight into his past behaviour leads to our conclusion that the decision must be affirmed.

114. The only difference between the martial before the 2018 decision and this review is essentially a 6 year period of no further allegations being made against the Applicant or any offending. That in itself is not sufficient to enable a finding that the Applicant does not pose a real and appreciable risk to the safety of children.

115. We find that the correct and preferable decision is to affirm the decision under review.

116. Given our findings, we are not required to consider s 30(1A) of the Act.

Order

117. The decision of the Children’s Guardian made on 24 January 2024 is affirmed.

**********

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

Registrar

Decision last updated: 10 October 2024