DHK v Children's Guardian

[2018] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DHK v Children’s Guardian [2018] NSWCATAD 227
Hearing dates:	28 August 2018
Date of orders:	28 August 2018
Decision date:	28 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member R Royer, General Member
Decision:	(1) The decision of the respondent dated 20 December 2017 to cancel the applicant’s working with children check clearance is set aside.  (2) In substitution for that decision, the following decision is made: The applicant is to be granted a working with children check clearance.
Catchwords:	CHILD PROTECTION – Working with Children – Risk Assessment – Whether applicant poses a risk to children – Real and appreciable risk – Allegations of aggravated indecent assault – Allegations retracted – Charges withdrawn – Costs order made against the prosecution.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476. Office of the Children’s Guardian V CFW [2016] NSWSC 1406. R v Commission for Children and Young People [2002] NSWIRComm 101 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	DHK (Applicant) Children's Guardian (Respondent)
Representation:	Counsel: K Dailly (Applicant) V Hartstein (Respondent)   Solicitors: McKeown Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00017541
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Summary

1. The applicant is a health professional who seeks a working with children check clearance in order to continue his practice which predominantly treats adults but occasionally treats children, too.

2. The Children’s Guardian, who is the respondent in this case, has the power to undertake a risk assessment under s15 of the Child Protection (Working with Children) Act 2012 (‘the Act’). Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

3. The applicant was the subject of a risk assessment because in 2012, he had been charged with the aggravated indecent assault of his daughter (‘the daughter’) when she had been aged between eight and nine years. Following the daughter’s retraction of her earlier statement alleging the assault, all charges were withdrawn by the prosecution.

4. Costs were later awarded in favour of the applicant. In his decision to award costs, the magistrate found that the prosecutor had unreasonably failed to investigate or to investigate properly any relevant matter of which it was aware or ought reasonably to have been aware, namely the intrinsically inconsistent account given by the complainant during her initial interview with police and the evidence that she had a history of fabricating stories.

5. In 2015, a notification was made to the Department of Family and Community Services that the applicant had stated that her father had molested her in the past and had ‘got away with it.’ This notification, together with the withdrawn charges, were considered in the risk assessment undertaken by the Children’s Guardian which culminated in the decision on 20 December 2017 to refuse the applicant a working with children check clearance.

6. Under section 27 of the Child Protection (Working with Children) Act 2012, the NSW Civil and Administrative Tribunal (‘the Tribunal’) has the power to review a decision of the Children’s Guardian to refuse a working with children check clearance. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 of the Administrative Decisions Review Act 1997.)

7. The applicant lodged an application for review to this Tribunal on 17 January 2018.

8. At the end of the Tribunal hearing in this matter, Counsel for the Children’s Guardian advised that she had been instructed to take a ‘neutral stance’ in the case.

9. On the evidence before us and for the reasons set out below, we have decided that the decision of the Children’s Guardian to refuse the applicant’s working with children check clearance should be set aside and that the applicant should be granted a working with children’s check clearance.

Evidence

10. A number of documents are before the Tribunal, relevant details of which are set out below. Oral evidence was also given to the Tribunal by the applicant, the applicant’s wife and the psychologist, Ms Laura Durkin.

The daughter’s electronically recorded interview with police

11. The daughter was interviewed by JIRT officers (a police officer and a child protection caseworker) in 2012. During the interview, she alleged three incidents of indecent assault by her father and one incident of indecent assault by her then fourteen-year-old brother.

12. In relation to each of the three allegations of indecent assault against her father, the daughter told police that she had separately reported each incident to her mother, immediately after it had occurred.

13. In relation to the allegation made against her then 14-year-old brother (‘the son’), namely that he had forced her to touch his penis, the daughter at first told the police that she had told her mother about it and that she didn’t think her mother ‘said anything to him about it.’

14. Later in the police interview, the daughter said that when she had spoken to her mother about the allegations against the son, her mother said to her ‘This is bad because your dad has done it 3 times and your brother is starting to do it so I guess you should just, just forget about it and just like forget about it and make sure that if he tried to do it again to walk away and tell me.’

15. Later in the interview, in relation to her allegations against her brother, when asked ‘so did you tell mum straight after your brother did it or you told her yesterday’, the daughter replied:

I told her, I haven’t actually really told her yet ‘cause like I was going to tell her but then it was late at night so I didn’t actually get a chance to tell her so I haven’t actually ‘cause I forgot and then I haven’t actually told her so I’m telling her tonight.

16. When pressed, the daughter said that ‘I’ve told mum about the dad but I haven’t told my mum about my brother.’

The daughter’s retraction statement

17. In June 2013, the daughter provided a supplementary (non-police) statement retracting her police statement. She stated that:

• she had wanted to have her mother present during the police interview and was not given the opportunity of speaking to her mother before she was interviewed by police;

• she had been very confused about the whole matter;

• what she told the police was not true;

• her father did not grab her hand and place it on the outside of his pyjama pants;

• when she went interstate with her father (without her mother and brother because her brother had sporting commitments), she had not wanted to sleep alone so had slept in her father’s bed. She stated that ‘during the night, I was rubbing Dad’s stomach when my hand went low and accidently touched his private parts. Dad jumped out of bed and got angry with me and said “Don’t do that.” I was very embarrassed about this happening. We then went back to sleep. When I attended the school lecture on sexual education, I thought that what happened with Dad was inappropriate. I was very confused…The whole incident was an accident and should never have happened. My father did not do anything wrong. He has not touched me in any way that is inappropriate and he has not forced me to touch him in any way that is inappropriate.’

• she told her mother that her father had pushed against her but that this had never happened and that she just wanted to get some attention from her father, who spends a lot of time with her brother but not with her.

• when she realised the police believed what she was saying about her father, she also told them that her brother had touched her inappropriately.

• the reason she told the police things that were untrue was because ‘when the police came to my school, I thought I was in trouble for telling lies and I thought that if I said that what I said to [my babysitter] was untrue the police would put me in gaol for lying.’

18. On the evidence before us, the daughter has not given a statement in relation to the charges subsequent to her written retraction. She has not provided a statement in these proceedings nor has she given evidence. On the evidence before us, we accept that the daughter’s retraction statement is truthful, as she has declared, and that her reasons for making the false allegations against her father are as set out in it.

Family and Community Services documentation

19. File notes prepared by Family and Community Services (‘FACS’) deal with the 2012 charges against the applicant and the notification by a counsellor in relation to comments made to him by the applicant’s daughter in 2015.

2012

20. File notes taken by FACS officers provide the following information:

• the carer who had reported the allegations had noted that the allegations came after the applicant’s daughter (‘the daughter’) had been learning about puberty and sexual abuse at school, and had been asking questions about both these issues;

• that the daughter had been interviewed by officers from the Joint Investigation Response Teams (‘JIRT’) at her school. During the interview she had alleged that her father had indecently assaulted her on three occasions. She had also stated that she had been indecently assaulted by her then fourteen-year-old brother.

• that the complainant’s mother had spoken to the JIRT officers about her daughter’s allegation. In relation to the allegation that the applicant had pushed his daughter’s face towards his groin area, the mother told the officers that her daughter’s story had kept changing and that she ‘was not sure of’ the disclosure.’ She told the officers that she had been concerned about her daughter’s allegation and told the officers that her daughter ‘displays ADD behaviour and has auditory disorder where [she] interprets everything differently’.

21. There is no dispute to the accuracy of these file notes and we have given them weight in considering this matter.

2015

22. File notes made in 2015 by FACS officers state that in late 2015, the daughter had disclosed to the notifier that she was molested by her father in the past, that she feels her father got away with it, that she doesn’t feel safe alone with her father but that her mother never allows the daughter to be left alone with the father. In a subsequent report, the notifier states that the daughter had been very upset at the initial presentation and that ‘the trigger seemed to have been discussions sex ed/puberty in PDHPE.

23. The contact record for the notification provides as follows:

On 15 October 2015, [the daughter] was brought up to see me [redacted] very distressed. She had just disclosed to [redacted] that she had been molested. I was able to ascertain that she was referring to the previous disclosure and that nothing new had happened. But she said that now that she is older it is starting to upset her more as she has a better understanding of what happened and the significance of it. She said that she feels her dad ‘got away with it’ when he should have. This trigger seemed to have been discussions sex ed/puberty in PDHPE…I ascertained that nothing had happened recently and she didn’t currently feel at risk, although she doesn’t like being alone in the house with her dad (and apparently Mum makes sure this never happens). She has shared with her mother that it’s all starting to come back to her, and her Mum apparently said that they may do something ‘after Christmas.’ I asked what this might mean, and [she] thought that maybe they might get a divorce.

I spoke to [her about the previous allegations]. She said it is very hard to her to remember as it was three years ago and she was young. She remembers the JIRT team coming to speak to her at school in 2012 and then she remembers that there was a court case. And then she only remembers that things went back to normal. She didn’t have to attend court. She felt that her parents were trying to put it behind them, so that’s what she did as well.

24. It is not disputed that the notifier is a male school counsellor who the daughter saw in 2015 although his identity has not been provided to the Tribunal. As the notifier has not been identified and neither the notifier nor the daughter has provided a statement or given oral evidence to the Tribunal to confirm and clarify the 2015 conversation, we give little weight to the 2015 FACS file notes referred to above.

Statement by housekeeper

25. The housekeeper employed by the applicant and his wife gave a statement in relation to allegations made to her by the complainant that her father had indecently assaulted her. The allegations were made in the context of classes on puberty that the complainant had been attending at school. She told the housekeeper: “I’m not so lucky, I’ve been abused by someone in this house,’ before spelling out the letters DAD in sign language. She told the housekeeper that ‘He forced me to touch him, it has happened 4 times.’

26. There is no dispute that the allegations were made to the housekeeper and we have considered her statement on this basis, rather than as truth of the allegations themselves.

Child protection learning package

27. There is no dispute that the daughter attended five school-organised personal development presentations in late 2012 - including a parent and student session to discuss changes related to puberty, discussing body parts and body development and appropriate and inappropriate scenarios – and we accept that she did attend these sessions.

Complainant’s learning issues

28. Assessments contained on file, which have not been disputed and to which we have given weight, show the daughter to be in the severely delayed range for receptive language (i.e. understanding spoken language) skills. According to the assessment, ‘her ability to perceive subtle variations in spoken language (variations in sentence structures that change the meaning of a sentence) may be affecting her ability to comprehend language.’ By contrast, her expressive language skills were assessed as being in the average range. On assessment, she was found to have difficulties with rapidly retrieving lexical information when naming, indicating that her language processing abilities may be slower than typical.

The son’s evidence

29. In a statement prepared in 2013, the applicant’s son (‘the son’) denies ever having touched his sister (‘the daughter’) inappropriately.

30. In his statement he gives examples of untruths his sister has told, including that her eyes had been glued shut with super glue and she had to go to hospital when this had not happened; that she had been made class captain when she hadn’t; that she had seen him firing a pellet gun when she had not.

31. The son was not required for cross-examination and no dispute was taken with his statement. On this basis, we have given weight to it in reaching our decision in this matter.

Applicant’s evidence

32. In 2012, the applicant attended the police station to be interviewed about the allegations made against him. At the police station the applicant advised that he had received legal advice not to be interviewed. When the police officer told him that ‘The allegations from your daughter are that you forced your daughter’s hand onto your penis,’ the applicant replied, ‘That’s simply not true.’

33. In a response to the Children’s Guardian’s request for further information, the applicant stated that:

• as a health practitioner, 99% of his clients are adults although he does see some children, almost always in the company on a accompanying adult;

• he has never been the subject of any complaints or disciplinary proceedings or risk assessments in the course of his current or any previous employment whatsoever regarding children or adults.

• he had been charged with the indecent assault of his daughter and that all charges had been withdrawn by the Director of Public Prosecutions. He described his daughter as having a history of ‘saying things which were not accurate or completely untrue’ and that the matter had been ‘reported to the nanny in late 2012 and with a backdrop of other issues which involved sex education lessons at school, another young classmate inappropriately touching her and a concern that I was not paying sufficient attention to [her] from her perspective.’

34. Following the allegations made by his daughter, an apprehended violence order was issued against the applicant, which was removed following the withdrawal of the charges.

35. In a statement prepared for these proceedings, the applicant referred to the earlier charges brought against him in relation to his daughter and stated that ‘I have always denied the veracity of the allegations and I continue to do so.’

36. In relation to the allegations, the applicant stated:

Despite the matter not being finally determined by a court, I maintain that I did not engage in any type of inappropriate conduct towards [my daughter]. I note in [her] police interview she did not limit her allegations to just myself. [My daughter] also alleged that [my son] and another boy in her year on separate occasions also inappropriately touched her prior to the date of her police interview. I believe this is indicative of the allegations being completely false…I am unable to provide any explanation as to [my daughter’s] motives for reaffirming her original complaint when speaking to the school counsellor. I am not privy to the actual notes of that session and am not aware of how the meeting was conducted by the counsellor. I am aware that [my daughter] does seek attention and that the previously alleged conduct against me was identified by [my daughter] as a means to get more attention from me. Despite [her] reaffirmation I maintain I have not engaged in any such conduct and her allegations are false. Further, I am not aware as to the identity of the counsellor, their age or level of training and experience in such matters.

37. Whilst highlighting the difficulties in refuting the allegations made by his daughter - namely that the alleged conduct was said to have occurred when the two were alone and there were no witnesses, either to corroborate or reject the alleged conduct having actually occurred – the applicant set out the following matters as supportive of his innocence:

• his denial of the charges;

• his wife’s statement in relation to the allegations;

• his daughter’s assertions of three different males having inappropriately touched her, which raise concerns as to the veracity of his daughter’s allegations;

• his daughter’s assertion that she wanted more attention from the applicant as a motive for her allegations;

• her belief that she would be put in gaol for lying about the allegations provides a reason for her solidifying her account to the police;

• the applicant’s good character and lack of criminal record.

38. In relation to his daughter’s reaffirmation of the allegations in 2015, the applicant stated that

[her] reaffirmation was made in a private counselling session where she most likely believed her communication was entirely confidential and therefore she was free to return to her allegations without fear there would be any consequences for myself and the family. The reaffirmation of a prior false statement does not make the statement true.

39. The applicant stated that:

Whilst a child’s allegation should not be dismissed without due attention being given to it, I believe it is equally important to take into account the opportunity for fabrication by a child who is wholly unaware of the seriousness of the consequences of their false statements….I believe the..Risk Assessment Officer gave a disproportionate weight to my daughter’s allegations as reaffirmed during a counselling session in 2015 and entirely disregarded the inconsistencies within my daughter’s original evidence, retraction statement and the evidence of my wife and son, the DPP’s withdrawal of the case and the awarding of…legal costs by the Court to me and, in doing so, failed to give appropriate weight to relevant matters which resulted in an incorrect refusal of the work clearance.

40. He also expressed his concern about excessive weight being given to a statement given to a counsellor by his daughter, ‘where knowledge of the content of that private counselling session is limited in that there is only a third party summary of a comment made by [her], unlike the police interview which was recorded independently and available for later scrutiny. There appears to be no such independent recording of the counselling session to ensure that the counsellor’s account accurately recorded my daughter’s comments. In addition, there is no protection afforded to me that the counsellor acted with appropriate caution in the manner in which questions were asked of [my daughter].

41. In oral evidence before the Tribunal, the applicant stated that none of the allegations that he had indecently assaulted his daughter were correct.

42. In describing his current relationship with his daughter he told the Tribunal that he has been trying to understand her experience, namely that if she believes that he was inappropriate towards her even though he was not, he needs to accept that this is what she believes in building his relationship with her.

43. He describes the anguish of the allegations and the stress it caused in his marriage and the fact that he and his wife has been working hard to move forward.

44. He described steps he now takes in the event of any further false allegations being made against him by his daughter. This includes not being alone with his daughter in either her bedroom or the master bedroom. He has also implemented steps to protect his son against any false allegations being made again him by the daughter, namely that he is never alone with her in a bedroom. He also makes sure that when his son has friends over at the house, they are given space away from the daughter and any of her friends.

45. His wife regularly travels overnight, sometimes for up to three or four weeks, and leaves the applicant to look after their children while she is away.

46. The applicant confirmed that he rarely treats children in his health practice and has not practised in his profession since the refusal of his working with children check clearance last year.

47. The applicant was cross-examined on his evidence. We found the applicant to be a truthful and open witness and have given weight to both his oral and written evidence.

Applicant’s wife’s evidence

48. In a statement made to police in 2012, the applicant’s wife said that in December 2010, her daughter had told her that when she and the applicant had been together interstate, the applicant had put her hand on his penis. In March or April 2011, her daughter had told her that the applicant had been ‘pushing up against her’ when he was tickling her.

49. When the applicant’s wife asked him about the daughter’s allegation when the two had been interstate he told her:

That’s not true, that didn’t happen. What did happen was she had her head on my chest and was rubbing my stomach and her hand went lower onto my penis and I was so shocked I jumped out of bed and told her off

50. The applicant’s wife told the police officers that she understood that he meant her hand had touched his penis of the outside of his pants, and that she had accepted this explanation.

51. In relation to the second allegation, the applicant’s wife told him that their daughter ‘seems overly aware of contact as you were tickling her on the bed and she felt your groin pressing against her and felt that was inappropriate.’

52. She and the applicant then spoke to their daughter about her concerns with the applicant telling his daughter ‘I’m sorry if this has made you uncomfortable.’ The applicant’s wife said that the applicant had said this ‘as he felt she needed to hear that from him, but not because he had done anything wrong.’

53. After this, the applicant’s wife said that her husband was ‘very particular about not being left alone with [their daughter] because I think he didn’t want to be in a situation where he could be blamed for something again.

54. In her statement, the applicant’s wife describes the following learning difficulties experienced by their daughter:

[She] is a little bit quirky and eccentric…She also goes to speech therapy…not for her pronunciation but for her comprehension…She undertook child specialist auditory testing which they found she did have problems in that area. They also found she had significant attention deficient [sic] problems. This was not for hyperactivity but for being able to focus properly and maintain attention. The impact for that is that she is able to read words well but is only able to comprehend on a basic level.

55. In a later (non-police) statement made by the applicant’s wife, she reiterated that she had told the police officer that her daughter fantasised about things and advised him to ‘look into this more carefully.’ According to the applicant’s wife, the police officer assured her that he would.

56. In this subsequent (non-police) statement, the applicant’s wife told the police officer about the following incidents, none of which were included in her police statement:

• prior to her daughter speaking to her about the first incident, she had found a copy of the graphically-illustrated book, The Joy of Sex, under her daughter’s bed, but said that the police officer seemed uninterested in this;

• what her daughter had told the police about three separate incidents all occurring at home was inconsistent with what her daughter had told her in 2010;

• when the applicant and his son had been using super glue on remote control cars, the applicant’s wife had feared that a drop of Superglue had splashed into her daughter’s eye. The applicant’s wife contacted a relative who was an ophthalmologist who advised her to simply wash the eye out with saline. According to the applicant’s wife ‘there appeared to be no damage and there were no repercussions as a result of the incident.’ Later, however, her daughter was adamant that her eye had been glued shut as a result of the incident and that she had been admitted to hospital where her eye had been operated on;

• when out to dinner with her grandparents, (and having earlier watched a documentary on seafood allergies) the daughter told them that she is allergic to seafood even though she is not. Her declaration that she is allergic to seafood, and her subsequent refusal to eat prawns, followed a documentary she watched on allergies, which included seafood;

• after the daughter had complained that a boy at her school had twisted her arm, the teacher clarified that it had been the daughter who had taken the boy’s school hat from him and when he had tried to grab it back, the daughter had slapped him in the face;

• the daughter announced that she had been made class captain when she had not been.

57. In her subsequent (non-police) statement, the applicant’s wife describes inconsistencies in the daughter’s statement, including where she was at the time of the alleged assault, whether she had advised the applicant’s wife about the allegations against her son and her unrealistic descriptions of the applicant’s wife’s reaction to her daughter disclosing the alleged assaults. In this statement, the applicant’s wife also points to inaccuracies in her daughter’s description of her grandparents’ health and household circumstances.

58. The applicant’s wife also set out her interaction with her daughter in relation to the allegations against the applicant, stating that the daughter had spoken to her for the first time in December 2010, approximately six months after the incident was said to have occurred. The daughter alleged that her father had pushed her head down towards his groin when they had been in Adelaide for a family occasion. The applicant’s wife told her daughter she had trouble believing her ‘because she had got other incidents confused.’ According to the applicant’s wife, this allegation was at odds with the daughter’s statement to the police when she said the assault had occurred at the family home. In March or April 2011, the daughter had told the applicant’s wife that ‘daddy had been inappropriate again.’ She had described her father tickling her and wrestling her on the floor and had been concerned that his groin was close to hers and she thought that this was inappropriate. According to the applicant’s wife ‘from what she said and how she demonstrated what [he] did, I took the view that [he] had done nothing wrong and his actions were innocent.’ The applicant, his wife and the daughter then had a discussion about the two events and the daughter’s interpretation of them. According to the applicant’s wife ‘[He] apologised if his actions made her feel uncomfortable, and we explained how she might be over sensitive to some issues. [She] did not raise a third incident with me. [He] did not apologise for being inappropriate.’

59. The applicant’s wife denied that her daughter had ever told her that her brother had been inappropriate with her.

60. In a statement prepared for these proceedings (‘the supplementary statement’), the applicant’s wife explained her initial reaction when her daughter told her that the applicant had made her touch his penis and have pushed her head down towards his groin area:

As a result of [her] allegations I was shocked and greatly distressed and I did not immediately know how to respond. My first thoughts were that this is not true as [she] had a very strong history of being very imaginative, making up very detailed stories, often misinterpreting events and lying. My second thoughts were that I needed to respond carefully and in a way that did not directly negate her story as I wanted her to be able to always feel safe in coming to me with any concerns, now and in the future and to be assured that her concerns, real or unreal, were valid and needed to be brought to my attention no matter what.

61. In her supplementary statement, the applicant’s wife expressed her view that her daughter may have made up the allegations to encourage a divorce between her parents so that, like her best friend whose parents had recently divorced, she might also get preferential treatment both at home and at school.

62. She confirmed that her daughter would have been familiar with male genitalia from a sex education class she had recently attended called ‘Amazing Me and Puberty’ and from her surreptitious reading of the graphically illustrated book, The Joy of Sex, that the applicant’s wife had found hidden in her daughter’s bedroom.

63. She was also concerned that her daughter had continued to tell her story to the police because ‘she was really scared when the police went to speak to her at school and she was worried that they would be sending her to gaol so she told them the same story she told [her nanny].’

64. In her supplementary statement, the applicant’s wife provides further details of the family’s focus on the sporting activities of her son, an elite athlete, which may have led her daughter to believe her father was not interested in her activities. It is her view that the allegations may have been a way to seek attention in light of the lack of attention she felt she had from her father.

65. The applicant’s wife also highlighted the fact that when retracting the allegations, the applicant’s daughter told her own (independent) lawyer that fear she would get into trouble from the police for lying was one of the main reasons she kept quiet all that time and did not retract her story sooner.

66. She also clarified that the agreement she had with the applicant not to leave him alone with their daughter was ‘more for [his] safety and not because we did not trust [him] with [the daughter]’ and so ‘there would not ever be a situation that could be misconstrued again.’

67. She noted that her daughter continues to show that she still has ‘difficulty accurately processing information and incorrectly applying external situations to herself as well as perhaps overdramatising certain situations.’ This included repercussions of a school presentation on mental health issues covering anxiety and depression, after which the daughter rang a relative concerned that she was suffering from depression or bipolar because ‘sometimes she was happy and other times she was sad.’

68. She explained a situation that when he daughter had stayed home from school having vomited, the school counsellor had advised the applicant’s mother that she had texted her friends to say she was going to ‘end it all by taking sleeping pills.’ The applicant’s wife advised the counsellor that the daughter had been genuinely ill and had vomited and did not try to commit suicide with sleeping pills. The applicant’s wife was advised she would need to obtain a clearance from a GP for the daughter to return to school, which was done. The daughter also had three or four sessions with a counsellor to assist her with some school-related issues. During this time, neither the daughter nor the counsellor raised any issues that the daughter had stated or felt that her father had molested her in the past and that he had ‘got away with it.’

69. In around 2015, the applicant’s wife stated that the daughter had been part of another lesson on sex education and puberty and that according to the complainant’s wife ‘this would have brought back memories of the last time [the daughter] was in a sex education and puberty class and the events with the police that followed afterwards. This was also a very unhappy, confusing and stressful time for [her] where I feel she has reverted to her mismemory of events and by placing herself as the victim in this situation and not the wrong doer it would gain her the sympathy and attention she was probably wanting at the time.’

70. According to the applicant’s wife ‘I believe at this time of high stress and anxiety…[my daughter] created two situations (being molested and attempting suicide) that were not true and presented it to others for sympathy and attention.’

71. After this, the daughter made friends with a girl diagnosed as suffering from anxiety who had behaviours described by the daughter as ‘hiding behind a bush instead of socialising or curling up under her family car when she was upset.’ According to the applicant’s wife, her daughter began to copy her friend’s behaviours, including curling up on a rug in a position similar to the one she had described her friend as adopting. When the daughter discovered that the friend had been prescribed medication for her anxiety, the daughter had queried why she had not also been prescribed medication.

72. Following a presentation in 2016 or 2017 at school on sexual orientation, the daughter had become unduly worried as to whether she was gay or not.

73. According to the applicant’s wife, her daughter has recently being spending time with a boy whose sister suffers from an eating disorder and towards whom the boy is very supportive and caring. Since then, the daughter has been hinting to the applicant’s wife that she also has an eating disorder.

74. The applicant’s wife stated:

When I discussed this with her counsellor the counsellor agreed that it was unlikely [the daughter] had an eating disorder if she willingly brought food to eat at school without argument, eats well at home, indulges in her favourite junk food when given the opportunity and does not throw up her food. [The counsellor] agreed not to be an enabler in this situation.

75. She described the applicant’s relationship with the daughter as being ‘a normal father/daughter relationship’ and that there does not seem to be ‘any awkward reservation between them.’

76. The applicant’s wife stated that:

I love my daughter and would do everything to protect and support her however knowing her tendencies toward misperceiving, misremembering and dramatizing certain events, I do not believe that [she] was telling the truth when she stated that she was ‘molested by her father when she was younger and that he got away with it.’

77. In oral evidence before the Tribunal, the applicant’s wife clarified that whilst she had ensured that the applicant was not alone with their daughter while the legal proceedings was on foot (and an apprehended violence order was in placed against the applicant), this changed after the charges (and the apprehended violence order) were withdrawn.

78. She told the Tribunal that her husband was concerned not to expose himself to further false allegations by the daughter. She also told the Tribunal that her father did not want to be left alone with the daughter in case she made a false allegation against him.

79. She stated that she regularly travels and when she does, she leaves her daughter alone with the applicant.

80. She agreed that the charges had been very stressful and had affected her relationship with the applicant. She described it as

A bit of a cloud hanging over us. [DHK] had to move out and had no unsupervised contact with [our daughter]. [Our son] had free access to his father and [our daughter] felt excluded from him and sad.

81. The applicant’s wife told the Tribunal that she is quite certain that the events alleged by her daughter in relation to the applicant did not occur. She has no concerns at all that the applicant has ever sexually abused their daughter.

82. In relation to the independent solicitor engaged for her daughter, she denied being related to her and stated that she had been out of the room when the solicitor had taken the retraction statement from the daughter. She agreed that she and her son had also made a statement to the independent solicitor that day.

83. We found the applicant’s wife to be a truthful and open witness who seemed, at all times, mindful of her daughter’s wellbeing and protective of her safety. We accept that she does not believe that the applicant has ever behaved inappropriately towards their daughter and would not have remained in the marriage had she believed otherwise. The applicant’s wife was cross-examined on her evidence and gave her testimony in a thoughtful and open manner. For these reasons, we have given weight to her evidence in reaching our decision.

Psychological evidence

84. A psychological risk assessment was prepared for the applicant by Ms Laura Durkin on 17 May 2018. At this proceedings, Counsel for the Children’s Guardian made an application that the Tribunal not accept the assessment into evidence on the basis that Ms Durkin’s report did not include the facts and assumptions on which her findings were based, namely that she did not provide the pro-forma document containing the list of questions asked of the applicant in the administration of the Personality Assessment Inventory (PAI). In oral evidence, she did answer questions in relation to the pro-forma document, which she stated she not able to provide as it would breach the Australian Psychological Society’s guidelines for practice. She told the Tribunal that whilst the applicant had given some idiosyncratic answers to questions for his PAI, which may have shown some difficulties in understanding the questions, they did not affect the validity of his results.

85. In these proceedings where the Tribunal is not bound by the rules of evidence, the NCAT Procedural Direction 3 (Expert Evidence) effective on 28 February 2018 provides that ‘the acceptability of expert evidence is a question of weight not admissibility. Nevertheless, if those proceedings involve complex or difficult expert issues, it is appropriate to require expert evidence to be prepared and presented in a manner which seeks to ensure its usefulness.’

84. We are satisfied that Ms Durkin’s report has been prepared and presented in a manner which seeks to ensure its usefulness in that it clearly sets out its methodology and findings. We are satisfied that Ms Durkin had two separate interviews with the applicant, the first face to face and the second by telephone.

85. In her report, Ms Durkin provides a diagnosis of adjustment disorder for the applicant. She notes that the applicant had been charged with the aggravated indecent assault of his then 10-year-old daughter but that she had recanted her allegations resulting in the withdrawal of the charges by the prosecution. She also noted that the applicant maintains his innocence in relation to the charges.

86. To enable the applicant to be assessed for risk, however, Ms Durkin has made the assumption that the applicant was guilty of the charges originally brought against him and has assumed that the police facts sheet ‘provide the most accurate information about [his] offending. Ms Durkin used the Static-99R static risk assessment tool in her assessment of the applicant. The applicant received a total score of -1 on the Static 99R, which places him at Risk Level II or Below Average Risk for being charged with/convicted of another sexual offence within five years of now.

87. Ms Durkin used the Risk for Sexual Violence Protocol (RSVP) as the risk assessment tool to assess the applicant’s level of dynamic risk. She identified a number of protective factors in the applicant’s favour, including his above average intelligence, his secure attachment in childhood to one caregiver, his stable work future, his stable relationship and networks and ability to display empathy and to cope effectively.

88. According to Ms Durkin:

Review of these proactive factors would indicate that [he] maintains a high level of protection against future sexual offending and there are few relevant areas where improvement or change is required…[His] risk of future sexual offending is, overall, considered low and it appears that there are a number of positive, protective factors working in his favour and which improve his ability to avoid sexual offending.

91. Ms Durkin made the following recommendation in her report:

There are no assessed treatment needs in this case and no significant areas of deficit which require intervention to reduce [his] risk of engaging in sexual offending. He presents as a prosocial and stable individual who is maintaining a long-term relationship, engaging in employment, and he displays a number of positive personality traits and is willing to engage in treatment to address any outstanding issues that arise as a result of the ongoing legal issues he has experienced over the last seven years. Thus, from a risk perspective, I am not of the opinion that there is a need in [his] case to restrict him from working with children in the future.

92. We are satisfied by Ms Durkin’s expertise as a forensic psychologist and give weight to her risk assessment report accordingly.

Real and appreciable risk

93. In this application, the issue for determination is whether the applicant poses a risk to the safety of children. The test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476; Office of the Children’s Guardian V CFW [2016] NSWSC 1406.

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

95. The Child Protection (Working with Children) Act 2012 (‘the Act’) came into force on 15 June 2013 and was amended by the NSW Parliament on 28 September 2015. The amendments commenced on 2 November 2015. The amendments inserted s 15(4A) and s 30(1A) into the Act and apply to this application. The additional test that is provided by s 30 (1A) is:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

Section 30(1) matters

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

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

97. The matter that caused an assessment and the refusal of the clearance was the fact that in 2012, the applicant had been charged with three counts of indecently assaulting his daughter when she was eight or nine years old.

98. Although the daughter made a statement in 2013 recanting the allegations which she said were false, in 2015, a notification was made to FACS that she had told a counsellor that her father had molested her and that he had got away with it when he shouldn’t have.

99. The applicant denies all allegations and told the Tribunal that he has never indecently assaulted his daughter.

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

100. The indecent assaults were alleged to have taken place sometime between 2010 and 2012.

101. Since the withdrawn of the criminal proceedings in 2013, the applicant has lived in the family home with his wife, son and daughter. Until the refusal of his working with children check clearance, he has maintained his employment as a health professional. On the evidence before us, we accept that no complaints have ever been recorded against him in his professional capacity as a health professional.

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

102. The applicant is now 63 years old. At the time of the offences, he was approximately 55 years old.

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

103. The applicant’s daughter was eight years old when the first indecent assault was alleged to have occurred. Due to her relationship with the applicant, she would be deemed to be a vulnerable person. As noted by Counsel for the Children’s Guardian, she was particularly vulnerable as she has some learning difficulties.

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

104. There is approximately 48 years difference between the applicant and his daughter.

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

105. The child making the allegations was the applicant’s daughter. The applicant was aware she was a child at the time of the allegations.

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

106. The applicant is 63 years of age.

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

107. The applicant has no criminal convictions. He has never had any complaints made against him in his capacity as a health professional.

108. Since the withdrawal of the charges in 2013, the applicant has lived with his wife, son and daughter.

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

109. According to the risk assessment report prepared by the forensic psychologist, Ms Laura Durkin, even assuming that the applicant had indecently assaulted his daughter as alleged, she is not of the opinion that there is a need in the applicant’s case to restrict him from working with children in the future.

110. Using the assumption that he was guilty of the indecent assault of his daughter, the applicant’s scare on the Static-99R static risk assessment tool placed him in the below average risk for being charged with or convicted of another sexual offence in the next five years. His results for the Risk for Sexual Violence Protocol placed him in the low risk category of re-offence

111. Counsel for the Children’s Guardian had some initial objections to Ms Durkin’s report on the basis that not all the raw material upon which she had based her opinions had been provided to the Tribunal. The Tribunal allowed the report into evidence noting that, in accordance with NCAT Procedural Direction 3 – Expert Evidence (28 February 2018) in proceedings such as this where the rules of evidence do not apply, the acceptability of expert evidence is a question of weight not admissibility.

112. In oral evidence before the Tribunal, Ms Durkin gave details of the raw material upon which she had based her findings, satisfying the Tribunal of the professional rigour of the work.

113. On this basis, we have given weight to the report in assessing the issue before us, namely whether the applicant poses a real and appreciable risk to children.

114. Given the report was prepared on the assumption of the applicant’s guilt in relation to the alleged indecent assaults of his daughter, any perceived risk would logically be reduced should his innocence instead be accepted.

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

115. The applicant and his wife gave statements to the Tribunal and made themselves available for cross-examination by Counsel for the Children’s Guardian.

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

116. At the conclusion of the proceedings before the Tribunal, Counsel for the Children’s Guardian advised that the Children’s Guardian would be taking a ‘neutral’ view in relation to this application.

Conclusion on section 30(1) matters

117. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.

118. For the following reasons, we are not satisfied that the applicant indecently assaulted his daughter, as set out in the charges brought against him in 2012:

• The applicant’s daughter recanted the allegations in a statement made to an independent solicitor in 2013.

• The daughter’s reasons for having made up the allegations, namely that she wanted to get some attention from her father, and that she was scared the police would put her in gaol if she said she’d lied to her carer (or nanny), are credible reasons, particularly in the context of the daughter’s undisputed history of having previously made up stories. We accept that these (untrue) stories included having been to hospital because her eyes had been stuck together with super glue; having been made school captain and being allergic to seafood.

• We are satisfied, as was the magistrate who awarded costs in favour of the applicant, that there are substantial inconsistencies in the daughter’s police statement. These include her allegation that her then 14-year-old brother had indecently assaulted her and the statement she almost immediately contradicts that she had informed her mother of this assault. Such a clear inconsistency within the daughter’s police statement gives weight to the evidence of the applicant’s wife that her daughter is prone to making up stories.

• On the evidence before us, we accept that the daughter has some learning difficulties which may affect her perception of events, including misinterpreting the appropriateness of the applicant’s wresting with her and the son;

• The daughter did not give evidence before us nor did she provide a statement in relation to these proceedings. Accordingly, there is nothing from the daughter to contradict her earlier retraction stating that she had made up the allegations of indecent assault against her father.

• We accept that in 2015, FACS was notified by a counsellor that he daughter had told him that her father had molested her and had ‘got away with it.’ Whilst this notification is concerning, nothing further was provided to the Tribunal to give the context in which the conversation took place or what words were said. The counsellor in question did not provide a statement to the Tribunal nor did he give evidence. No statement was provided by the daughter to confirm the conversation. For these reasons, we have given limited weight to the notification.

119. On the evidence before us and for the reasons set out above, we are not satisfied that the applicant indecently assaulted his daughter. Accordingly, we find that the applicant does not pose a real and appreciable risk to the safety of children.

Reasonable Person & Public Interest Test - s30 (1A)

120. Section 30 (1A) of the Act applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the 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 child-related work, and

2. it is in the public interest to make such an order

Reasonable person test

121. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

122. In order to properly consider this test, a “reasonable person” would need to know about the charges brought against the applicant in 2012 and their withdrawal following the complainant’s retraction of the allegations, the subsequent notification to FACS in 2015 and its context in addition to the complainant’s undisputed history of fabricating stories and the expert assessment for the applicant by the psychologist Ms Durkin.

123. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. In this regard, the reasonable person would note that the applicant has no criminal record and that the charges brought against him in relation to the indecent assault of his daughter were withdrawn, and costs awarded to him, after his daughter recanted her allegations and attention was drawn to the inconsistencies in her statement and to her history of fabricating stories. In the light of the above - and in the absence of any evidence from the daughter of the counsellor who notified FAC in 2015 that the daughter had told him that her father had molested her and that he had got away with it – the reasonable person would give weight to the oral and written evidence provided by the applicant in which he maintains his innocence in relation to the allegations and that of his wife in which she sets out why she, too, believes her husband to be innocent.

Public interest

124. In Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143,at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

125. On the evidence before us, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, including evidence of the daughter’s retraction of the allegations she made against the applicant, the subsequent withdrawal of the charges against him, and the evidence provided by the applicant and his wife in support of these proceedings, including the psychological report by Ms Durkin, we are satisfied that it is in the public interest to make the orders sought.

Decision

126. For the reasons set out above, we are satisfied that the applicant does not present a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Orders

(1) The decision of the respondent dated 20 December 2017 to cancel the applicant’s working with children check clearance is set aside.

(2) In substitution for that decision, the following decision is made: The applicant is to be granted a working with children check clearance.

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

Registrar

Decision last updated: 28 September 2018