DJF v Children's Guardian - [2019] NSWCATAD 246

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DJF v Children’s Guardian [2019] NSWCATAD 246
Hearing dates: 19-20 September 2018, , 6 December 2018 and 11 June 2019
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
A Limbury, General Member
Decision:
The decision of the Children’s Guardian dated 23 January 2018 refusing to grant the applicant a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing) Procedure Act (NSW) 1999
Evidence Act 1995 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BJB v Office of the Children's Guardian [2014] NSWCATAD 11
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Children’s Guardian v CFW [2016] NSWSC 1406
Children’s Guardian v CKF [2017] NSWSC 893
Children’s Guardian v CXZ [2019] NSWSC 1083
CKF v Children’s Guardian [2017] NSWCATD 6
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
CTM v Children’s Guardian [2016] NSWCATAD 280
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAR v Children’s Guardian [2018] NSWSC 942
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6
M v M [1988] HCA 68; 166 CLR 69
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
R v Commission for Children and Young People [2002] NSWIRComm 101
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Smith v Commissioner of Police [2014] NSWCATAD 184
ZZ v Secretary of the Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: DJF (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitor:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s): 2018/00059005
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

Introduction

The applicant seeks administrative review of a decision of the respondent to refuse the granting of a Working with Children Check Clearance (WWCCC), in that the respondent (the Office of the Children’s Guardian), following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons.
The applicant in these proceedings is referred to as "DJF". DJF is the applicant's pseudonym used in these proceedings in conformity of with an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013.
On 3 March 2017, DJF made an application to be granted a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act). His application nominated ‘Entertainment for children’ as the child related employment. DJF wishes to be able to run a child related mobile jumping castle business and also requires a WWCCC to enable unsupervised access to his grandchildren whom are under the care of the minister.
On 23 January 2018, the respondent informed DJF that following a risk assessment being completed, a WWCCC would not be issued to him as he poses risk to the safety of children (referring to s 18(2) of the Act).
In determining the risk assessment, the respondent relied on 15 charges relating to offences of a sexual nature in New South Wales and the Australian Capital Territory. The incidents are alleged to have taken place between 1980 and 1997. Six charges of counts relating to child related common assault were also considered. The respondent, notwithstanding the historical nature of these matters, relied upon the alleged offences being indicative of a pattern of allegations spanning five different complainants over a 17 year period. Three of the complainants were children and two were vulnerable adults who were inpatients at a psychiatric facility. The respondent has relied upon information provided by Family and Community Services (FACS) which, in the respondent’s submission, support a number of the allegations and charges that were made against DJF. The respondent acknowledges that the fifteen sexual charges and the six violence related charges have been dismissed, withdrawn or DJF has been found not guilty by verdict. Despite this, the serious sexual, violent and child related nature of the numerous alleged offences indicative of a pattern of alleged offending behaviour over time, are of concern to the respondent, which has led it to the conclusion that DJF poses a risk to the safety of children.
On 21 February 2018, DJF filed an application pursuant to s 27(1) of the Act seeking administrative review of the decision of the respondent to refuse him a WWCCC. DJF relies on his evidence which he says explains the circumstances pertaining to each of the allegations relied upon by the respondent in coming to its determination to cancel his WWCCC.
The issue for us to determine is whether, as at the date of hearing, we can be satisfied DJF poses a real and appreciable risk to children if he were granted a clearance to work in child related-work.
After consideration of all of the evidence, we decided to affirm the decision of the Children’s Guardian to refuse DJF a WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application (s 27(1) of the Act). In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see ADR Act, s 63(3) and the Act, ss 18(2) and (3).

Relevant Law and Legal Principles

The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering s 28 of that Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3   Object of Act
The object of this Act is to protect children:
(a)   by not permitting certain persons to engage in child related work, and
(b)   by requiring person engaged in child related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

The Children’s Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. 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: s 18(2) of the Act.
A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision under s 27(1) of the Act. That section provides:

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

The Notice of refusing DJF’s application for a WWCCC under s 18(2) of the Act was issued on 23 January 2018. DJF stated in his application that he was notified of the decision on the same date. DJF’s application for administrative review was filed on 21 February 2018 which means it was filed within the required 28 day period.
DJF must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.
In this administrative review, neither party bears the onus of proof. There is no presumption that DJF poses a risk to the safety of children as would be the case under s 28(7) of the Act if he was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR):

There is certainly no legal onus of proof arising from the fact that this is an “appeals” tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. …

The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that:

… the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove.

An application under s 27 of the Act is a merits review and not a review in which DJF must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.
Our jurisdiction under s 27 of the Act is protective of children and not punitive of DJF: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111; R v Commissioner for Children and Young People [2002] NSWlRComm 101.
In exercising our protective jurisdiction and considering the paramount principle in s 4 of the Act, the tribunal in carrying out an assessment of whether DJF is a real and appreciable risk to the safety of children should err on the side of caution if there is a deficiency in information, or, if there is doubt created by the available material (BFB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [119].
The issue for us as required by s 18(2) of the Act is whether DJF, on the balance of probabilities, poses a risk to the safety of children. Section 5B of the Act defines “risk to the safety of children” as being a real and appreciable risk to the safety of children. The definition is similar with the decision of Young CJ in Commissioner for Children and Young People v V (2002) NSWSC 949 considered the test to be applied is:

...whether, in all the circumstances, there is a real and appreciable risk, in the sense of a risk that is greater than the risk of any adult preying on a child. One, however must link the word “risk” with the words that follow, namely, to the safety of children.

In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).
…
[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):
“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).
[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.

For clarity, the Court in M v M accepted that a positive finding that an allegation of sexual abuse is true should not be made ‘unless the Court is so satisfied according to the civil standard of proof, with regard to the factors mentioned in Briginshaw’ (M v M at page 76).
It is well established that a three step approach to assessing a risk under the Act has been endorsed by the High Court in M v M requiring the Tribunal to first decide whether or not it is satisfied on the balance of probabilities that an allegation is true (and, if it is so satisfied, then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation is groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue), Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).
The third step requires the Tribunal in reaching neither of the satisfactions set out above with respect to an allegation, is still obliged to consider questions of risk that may be indicated by all the facts, CFW at [15]. All the facts include the fact that an allegation has been made and facts relevant to assessing the weight of the allegation. Even if an allegation, or set of allegations, is not proven on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the applicant, CFW at [16]. This has been taken to mean that if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused.
In Children’s Guardian v CKF (2017) NSWSC 893, Justice Davies agreed that the correct approach to risk is outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted above.
In Office of the Children’s Guardian v CFW (2016) NSWSC 1406, Justice Harrison discussed how the Tribunal could consider events when the Tribunal had a lingering doubt or where suspicion remained. Justice Davies accepted there was a three step process and the only point of departure was whether doubt ‘counts against the defendant or is … simply a matter to be considered’.

The New South Wales Court of Appeal in Tilley v Children’s Guardian (2017) NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors. This is certainly applicable in this application for administrative review.
We may not make an order on conditions, whether under ss 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.
In determining this review application, we must first have regard to the factors set out in s 30(1) of the Act.
In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.
The question for the Tribunal is whether DJF poses a real and appreciable risk to the safety of children, particularly in light of:

His criminal record;

Charges laid against him and the result following the charges;

Domestic relationships involving children; and

His work history as a mental health nurse.

Evidence

Documents

DJF filed the following written material:

Application filed 21 February 2019 (A1)

Statutory Declaration of DJF 1 August 2017 (A2)

Letter of DJF 2 April 2018 (A3)

Report of Miriam Wyzenbeek 13 March 2018 (A4)

Statement of referee 26 July 2017 (A5)

Report of referee 25 July 2017 (A6)

Statement of DJF’s son 15 June 2018 (A7)

Statement of DJF’s daughter 7 June 2018 (A8)

DJF’s combined written submissions and statement 25 June 2018 (A9)

Reference of DJF’s friend 20 July 2018 (A10)

Further statement of DJF’s daughter 9 September 2018 (A11)[??]

Order of the Family Court of Australia 25 November 1995 (A12)

Bundle of documents including statement of DJF’s son 16 May 1995 (A13)

Further statement of DJF’s daughter 19 September 2018 (14)

The respondent filed the following material:

S58 bundle (R1)

Further documentation filed 27 April 2018 (R2)

Further bundle 8 June 2018 (R3)

Further bundle filed 11 July 2018 (R4)

Further bundle filed 11 July 2018 (R5)

Further bundle filed 11 July 2018 (R6)

8 June 2018 submission (R7)

Further bundle filed 22 June 2018 (R8)

DJF was not represented. The respondent was represented by Counsel.
The hearing was conducted over 4 days. During the hearing, DJF gave oral evidence and was cross-examined by the respondent’s counsel. DJF tendered the report of Miriam Wyzenbeek. Ms Wyzenbeek gave evidence and was cross-examined.
DJF made an application for an adjournment on the second day of the hearing, 20 September 2018, as his expert witness Ms Wyzenbeek had not been made available for cross-examination. It also became apparent that Ms Wyzenbeek had not been provided with all of the documentation that related to each of the offences DJF had been charged with, and those taken into consideration by the respondent in refusing a WWCCC. The application for an adjournment was not opposed. We granted DJF’s request for the hearing to be adjourned so that he could address these issues.
On the third day of the hearing, 6 December 2018, Ms Wyzenbeek was cross-examined. At the conclusion of her evidence, DJF made an application for a second adjournment to obtain a further report from Ms Wyzenbeek and any report from his treating psychologist. The application was not opposed. To ensure DJF was afforded the greatest degree of procedural fairness we granted his application. In doing so we took into consideration that DJF was unrepresented and unfamiliar with the process of expert evidence and reports in reply, despite explaining this to him throughout the hearing. DJF also said he wanted to seek legal advice as to how to prepare his final submissions which was a further factor we took into consideration in granting the adjournment.
Ultimately, DJF filed no further evidence and said he was unable to obtain legal advice. The hearing concluded on 11 June 2019 with the parties making final submissions.

Allegations considered by the respondent in conducting a risk assessment of DJF

The respondent refers to the following allegations which were taken into consideration in determining to refuse DJF being granted a WWCCC:

indecent assault and rape in 1980. The complainant was 17 years of age. The charges were dismissed at Orange Petty Sessions on 5 May 1981;

three counts of indecency under 10 years, four counts of common assault in 1991. The complainant was 7 years of age. The charges were dismissed at the ACT Magistrates Court on 24 September 1991;

one count of sexual intercourse under 10 years, one count of commit act of indecency under 10 years and two counts of common assault in 1991. The complainant was 7 years of age. The charges were dismissed at the ACT Magistrates Court on 30 April 1992;

two counts of aggravated sexual assault - victim under the age of 16 years in 1996 and 1997. The complainant was 9 years of age. The charges were dismissed at the Parramatta Local Court on 11 December 1997;

one count of aggravated indecent assault - victim has intellectual disability and two counts of sexual intercourse without consent in late 1996. The complainant was an adult. The charges were dismissed at the Goulburn Local Court on 20 January 1998;

one count of aggravated indecent assault - victim was under the authority of the offender in late 1996. The complainant was an adult. DJF was found not guilty by verdict at the Goulburn District Court on 21 September 1999;

two counts of sexual intercourse without consent - person in authority in late 1996. The complainant was an adult. DJF was found not guilty by verdict at the Queanbeyan District Court on 11 August 2000.

28 November 1980 Incident

The relevant facts in relation to this charge of rape and indecent assault are set out at page 58 of Exhibit R1. The facts include at 6.45am on 28 November 1980 the victim, 17 year old female work colleague, heard a knock at the door. She said ‘Who is this?’ and she heard a reply ‘DJF’. She took this to be a friend of her husband so she got out of bed, wrapped a towel around herself and let DJF into her home. She went back into the bedroom to get dressed and DJF followed her to the bedroom and forced her onto the bed and raped her. She told DJF that her husband had not gone to work and that he had only gone to the shop. DJF then left the premises. The victim got dressed and went to the post office where she contacted her husband and told him what happened. At approximately 8.45am on 28 November 1980 the victim attended the police station with her husband and made a complaint. DJF was charged with rape and indecent assault. The charges were dismissed as there was no prima facie case (page 259, Exhibit R1).
DJF in his written submissions/evidence states the following in relation to this incident:

I went to see the worker but at no time was there any improper conduct. Her partner contacted me and offered to drop the charges if I paid him $1,000. I contacted my solicitor, (solicitor’s name) and advised him of the phone call and he advised me that her partner had no influence in the matter. When the matter went before the Magistrate it was found that no prima facie case existed, and the matter was dismissed.

In cross-examination DJF said that he had attended on a work colleague who was 17 years of age at the time. He said he went to see her about her doing some shifts at a kiosk because DJF was going away to visit his children. He denied that the alleged victim answered the door wearing a towel. He denied he followed her into the bedroom and forced her onto the bed and raped her. He said he was set up and asked by the victim’s husband to pay $1,000 and, in doing so, the victim would withdraw her claim. He was asked the following questions:

Q:   You would have to agree though, sir, would you that it is a fairly extreme thing for an individual to do, to arrange for his wife to accuse you of rape in order to obtain $1,000?
A   Not really
Q   You don’t think that that is an extraordinary thing to do?
A   Nobody has ever come to her door with a towel wrapped around ever when I have visited.

We had little evidence available to us in respect of this charge apart from the competing version of events. We have taken into consideration that DJF was not convicted of the offence with all charges being dismissed. We cannot, on the balance of probabilities, make a positive finding that the event occurred. However, we are not satisfied that the allegations are untrue in light of the cumulative allegations of a similar nature that have been made against DJF - see below. In our minds we have a lingering doubt, or suspicion, that the allegations may have some truth as we find it extraordinary that the victim’s husband would have made the allegations as alleged by DJF in order to extort money from him. We also have found DJF to be less than a reliable witness given his refusal to accept the findings of the Nurses Tribunal concerning the sexual and common assaults of patients under his care. This denial reflects on DJF’s credibility generally.

The 1991 charges involving the daughter of one of DJF’s partners

The alleged incident which occurred in 1991 resulted in charges being laid against DJF. The allegations involve a 7 year old girl who was the daughter of DJF’s then partner. The relevant facts are as follows (pages 73 to 74 of Exhibit R1).
Sometime in January 1991, DJF was present with a number of children at a home where the complainant lived. A game ensued in the lounge room where people, including DJF, commenced to tickle each other. It is alleged that during this game DJF approached the complainant and placed his hands on the inside of the complainant’s pyjamas and on her breast which lasted for a short time and was not observed by anyone. At a later stage during the same evening whilst watching a movie, the complainant was allegedly lying on a lounge with her head resting on DJF’s lap. He is alleged to have placed his hand underneath her pyjama top and fondled her breasts, this also lasting for a short period of time after which the complainant got up and walked from the room.
On 7 February 1991, whilst DJF was driving the same complainant referred to above, where she alleged DJF rubbed his hand up the complainant’s leg and said to her ‘Would you like to go for a little swim before school?’ The complainant declined the offer. It is alleged DJF continued to touch the complainant’s right leg with his left hand. She said she told him to stop and pulled her leg away. It is alleged DJF then dug his hand into her leg and forced it forwards towards him. Just prior to this the complainant alleges that DJF rubbed his hand in the area of her vagina.
On 23 February 1991, it is alleged whilst the same complainant was in bed asleep at DJF’s home she was awoken by him standing over her and touching her in the stomach area. The complainant rolled over onto her stomach. It is alleged the applicant forced the complainant to roll back over and squeezed her stomach causing her to cry from the pain he was inflicting. DJF is then alleged to have slapped the complainant to her face and threatened her in relation to a deal that he had spoken to her previously about, this deal relating to her not telling anyone about what had happened. He is alleged to have threatened her further and then left the room.
DJF’s daughter who was awake in the room at that time corroborated what the complainant stated to the police. DJF was spoken to by police on 28 February 1991. He denied the allegations concerning the complainant and stated that he believed her mother had instructed her to make the complaints against him. He admitted that he was in the bedroom in the early hours of 23 February 1991 but denied slapping her on the face or threatening her in any way.
A statement to NSW Police obtained by DJF’s daughter is found at pages 142 to 146 of Exhibit R1. The statement which was made on 26 February 1991, three days after the alleged incident occurred, records DJF’s daughter stating the following things to police:

she saw DJF place his hand on top of the complainant’s thigh in the car;

she saw DJF whispering to the complainant and the complainant sitting on DJF’s knee. She observed DJF’s arm around the complainant;

the complainant said to her the following day: ‘Dad has been touching me in places I don’t like it’;

that evening in the car, she witnessed DJF tickle the complainant around her belly and the top of her leg. She heard the complainant say to DJF ‘Don’t. Stop it because you’re hurting me.’

when they drove through a tunnel and it was dark she heard the complainant say ‘no’;

she observed DJF later that evening talking to the complainant near the car. She observed DJF cuddle the complainant and kiss the complainant on 3 occasions (once on her mouth and twice on the side of her neck). She heard the complainant say ‘Leave me alone. No. Stop. Don’t’. She saw the complainant struggle to get free and she pinched DJF on a sore he had on his wrist;

on 22 February 1991 she was on the bottom bunk of a bed and the complainant was on the top bunk. She saw DJF standing over the mattress and the bed. She saw DJF put his hand over the complainant’s body and saw him move it around. She saw the complainant sit up and DJF push the complainant back down onto the bed. She heard DJF say ‘Be quiet’. She heard the complainant start to cry. She said that she observed her father to continue to touch the complainant and the complainant looked like she was going to push DJF’s hands away. She heard the complainant say ‘Leave me alone you’re hurting me. Stop it.’ She saw DJF continue to touch the complainant’s chest. She heard DJF say ‘We have made a deal and you won’t tell anyone. You promised you would not tell anyone’ and ‘If you tell anyone I’ll belt you and tell everyone you’re a tart’ and ‘You’re not to tell your mother or [DJF’s daughter]’ and ‘You have to give me a kiss and a hug’.

In a record of interview on 5 March 1991 DJF’s daughter was interviewed by police. She gave a consistent account of that which she gave in her statement (see pages 117 to 120 of Exhibit R1).
DJF was charged with three counts of indecency where the complainant was under 10 years and four counts of common assault in 1991. He denied all charges which were ultimately dismissed on 24 September 1991 in the ACT Magistrates Court.
DJF in his written submissions (Exhibit A9) states that the incidents alleged ‘never occurred’. He denies the statement of his daughter and refused to accept that he had placed his hand on the complainant’s leg whilst he was driving. He said the complainant apparently had a history of accusing her mother’s partners of sexual assault. DJF further submitted that the complainant’s aunty and grandmother were prepared to give evidence at trial in relation to similar allegations made by her concerning her mother’s ex-boyfriends who were charged with similar offences.
The allegations were put to DJF in cross-examination. He admitted that there were times when he had driven the complainant to school. He accepted that the complainant would have been approximately 7 years of age at the time of the alleged incidents. He denied placing his hands inside her pyjamas and on her breasts and tickling her. He denied that the complainant was laying her head on his lap and that he fondled the complainant’s breasts. When asked about digging his hand into the complainant’s leg and forcing it towards him, he said ‘Never, I was driving a car so how could that and someone in the back of the car.’ He specifically denied rubbing his hand in the area of the complainant’s vagina and denied each and every allegation concerning entering her bedroom, standing over her and rubbing her stomach making her cry. DJF also denied threatening the complainant if she were to tell anyone about the allegations being made.
In offering an explanation as to why his daughter may have made the statement to the police as she did in 1991, he replied ‘Probably because she was angry, she wanted to go and live with her mother.’ When pressed as to his explanation as to why the complainant may have been making up these stories to despatch a boyfriend of her mother’s that she didn’t like, he replied ‘Well, her aunty told me she had done it to the previous boyfriend of her mother as well, and was happy to come to court with me, and so was her grandmother was happy to come to court with me.’
The following question and answer exchange took place:

Q   I just want to ask that question again, are you saying that a 7 year old girl has made up allegations of sexual abuse?
A   Yes.
Q   In order to despatch boyfriends of her mother that she did not like?
A   Yes, it happened before, it happened previous – to the previous boyfriend.
Q   You don’t think that that conduct is really rather remarkable for a 7 year old?
A   I don’t, you know I was told by her own family. They were happy to come to court with me.
Q   Sir, I want to put this to you. Are you suggesting that [the complainant] at 7 would develop a plan of that sophistication, that she would make up stories of sexual abuse in order to get her own way, get rid of her mother’s boyfriend is fanciful?
A   It is what?
Q   It is untrue, sir, you are making it up?
A   No I am not.
Q   Your daughter, [name], goes on to tell police that she witnessed you tickle the complainant around her belly and the top of the legs in a motor vehicle, and she heard the complainant say at the time, ‘stop it because you are hurting me’. Do you recall anything like that happening?
A   No.
Q   If your daughter said that to police, can you think of a reason as to why she might say that?
A   I was driving a vehicle, I - how could I be tickling someone when I am driving a vehicle, I would lose concentration and crash.
Q   Do you say that your daughter said that to police in order go and live with her mother?
A   No idea.
Q   [Your daughter] says that she observed you later that evening talking to [the complainant] near the car and she observed you cuddle and kiss [the complainant] on three occasions, once on [the complaint’s] mouth and twice on the side of the neck?
A   Not to my knowledge.
Q   Did that happen?
A   No.
Q   That was a lie if your daughter said that to police?
A   I never kissed [the complainant].

When asked why his daughter may have made these complaints to police, the following exchange took place:

Q Your daughter met with police again in March 1991, and she is said to have made a statement that was consistent with the statement she made in February that we have just gone through. Can you think of why your daughter might have made a similar statement a month later?
A I believe she did make it a - it was through the police, I think, it was a DOCS statement and she has refuted that in her - by all that stuff in her Statutory Declaration.

In this regard DJF referred to a Statutory Declaration that was prepared by his daughter and tendered as part of his case which is marked Exhibit A8. In that Statutory Declaration she refers to the statements made by herself in 1991. With regard to those statements:

To the best of my knowledge I do not ever remember stating that I was sexually abused by my father DJF, on the contrary over the years I have made it very clear that I was not. … I was never given a copy of the statement I made in 1991 and over the years due to being told that I had made these allegations I have several times contacted the police and family services to gain access to the statements but was told repeatedly over the last 26 years that they no longer existed and could not be found in any records held by either service. …

After reading the statements they are basically similar to what I remember saying, however other than a vague recollection of tickling and being hurt and what at the time may of seemed to have been inappropriate touching in the chest area, I never said that I was sexually abused in either of those statements. At the time of making the statements I was very angry, confused, hurt, scared and frankly reeling from my world being torn upside down, I was having nightmares and panic attacks, the statements I made about myself was never really discussed with me further at the time and now as an adult and actually even in my teens I knew that I was confused about when I first left [DJF] was that in trying to piece everything together was if it I had been sexually abused by my father and if these things I remembered happening when I was young were normal or out of place, had family services or the police asked to discuss my statement with me, even a month or a few months later, they would of been told that, while the home life was no picnic, that I did not believe at all that I had been sexually abused by my father.

A further statement of DJF’s daughter dated 9 September 2018 was admitted and marked (Exhibit A14). That statement reinforces the contents of the Statutory Declaration (Exhibit A8) and confirms that at no point was DJF’s daughter coerced to make the Statutory Declaration.
DJF, in addition to his denial that these allegations occurred, relies upon the Statutory Declaration (Exhibit A8) and the further statement of his daughter (Exhibit A14) in support of a finding that these allegations made by the complainant did not occur. The Affidavit and statement of DJF’s daughter do not go as far as to deny or withdraw the statements given by her to police as it relates to the allegations by the complainant. The statements certainly deny any sexual assault by DJF on his daughter. In our view, little weight can be placed on the Statutory Declaration and further statement of DJF’s daughter with respect to our finding in relation to the alleged incidents which have occurred concerning this complainant.
The statements by DJF’s daughter and the complainant describe in detail the alleged assaults by DJF on the complainant. The particular detail in relation to the rubbing of the complainant’s leg, her vagina, her breasts, and the incidents where DJF is alleged to have entered the complainant’s bedroom are also detailed allegations provided by a 7 year old child. The allegations have been supported by DJF’s daughter in two statements to police which are outlined above. In cross-examination, DJF said that there may have been an inability of his daughter to observe his hand being pushed away by the complainant when he was leaning over her bed. No evidence was given as to the layout of the beds in the bedroom, this may or may not be the case. However, the accumulation of the version of events of a 7 year old child, the two supporting statements of DJF’s daughter and a non-withdrawal of those statements in a later Statutory Declaration and a statement are persuasive factors we have taken into consideration in reaching our determination with respect to whether these allegations occurred on the balance of probabilities. Further, we do not accept it to be plausible that a 7 year old child could have made up a rather complex version of events to despatch her mother’s boyfriend whom she did not like and make allegations to the police as the complainant has.
Having assessed all of this evidence and carefully considering DJF’s explanation concerning the events, which we reject, we find on the balance of probabilities the likelihood of these offences occurring is more probable than not. If we are incorrect in coming to this conclusion, there is lingering doubt, or suspicion, that the events occurred. Our findings in this regard must be taken into consideration when assessing the real or appreciable risk DJF poses to the safety of children.

The allegations concerning the 1991 charges

The complainant in relation to these allegations are said to have occurred on 6 April 1991. The complainant was a 7 year old girl who at the time of the alleged conduct was a friend of DJF’s son, and regular visitor to DJF’s home.
The allegations complained of are set out in a Statement of Facts (page 116-117 of Exhibit R2) as follows:

On 6 April 1991, the complainant went to DJF’s home to play with his son. Whilst at the home she was in the lounge room area. DJF began kissing her and holding her. She was sitting down and he was sitting in front of her. He pushed her legs open and she felt his teeth and lips rub against her genital area. She was fully clothed at this time. DJF told her that if she told anyone what happened she would not be able to come to his home again. Later that day it is alleged DJF held onto the complainant, kissed her and then put his finger ‘in my private part where the babies come out’.
When the complainant arrived home she told her mother what had happened and that DJF had put his hand on her ‘private’. ‘Private’ was apparently the term the complainant used for her vagina.

DJF’s son was interviewed by police soon after the alleged event which statement is found at (page 171 to 173 of Exhibit R2). In that statement he said that he saw his father ‘tickling’ the complainant ‘everywhere’. He said he saw his father ‘cuddling her and kissing her’. When asked where he was kissing her he replied, ‘around the face’. DJF’s son told the police ‘[The complainant] was telling dad to stop and he said you love being tickled.’ DJF’s son estimated that this conduct went on for about a half an hour and referred to himself going next door to borrow a bike and when he came back his father was still ‘doing it’.
At page 174 of Exhibit R2 it records the complainant having been medically examined by the Chief Medical Officer and ‘nil injuries or trauma found’. The medical examination related to the alleged assault complained of by the complainant.
DJF was charged with one count of sexual intercourse under 10 years, one count of commit act of indecency under 10 years and two counts of common assault. DJF denied all charges. The charges were dismissed at the ACT Magistrates Court on 30 April 1992 as a result of no evidence being offered in corroboration of the complainant’s evidence.
DJF in his submissions denies each of the allegations raised with respect to this incident. He states:

This never occurred and this is shown in the medical evidence that there was no signs of penetration and the hymen was still intact, and again the charges were dismissed as the police had no evidence to offer. This was despite DNA being taken and it was alleged that I bit her on her underwear in the area of her private parts, no DNA was found on her clothing that was not hers.

There is no evidence before us which would enable a positive finding to be made that DJF indecently assaulted the complainant. To the contrary, the medical examination and the DNA investigation undertaken by the police would indicate that there was no evidence to substantiate the allegations. DJF in a statement to police (page 157 R2) admitted that he was tickling the complainant in his lounge room. There was no evidence before us as to an available explanation as to why the complainant made the allegations. We do note in the complainant’s record of interview to police she provided a rather detailed explanation as to what occurred. This is again an explanation which has been provided by a 7 year old child and it includes statements such as:

Q   How was he cuddling you?
A   With his arms, real tight and I couldn’t get away.
Q   Did he say anything to you?
A   Yes he said that I was beautiful and I said I am not beautiful and he said you are very beautiful.
Q   How many times did he kiss and cuddle you?
A   I don’t know, lots of times.
Q   How did he try and bite your privates?
A   He opened up my legs and bit it about 3 times in the lounge room.
Q   Where were you in the lounge room?
A   On the chair.
Q   Where was DJF?
A   Sitting in front of me and he opened my legs.
Q   Were you wearing your clothes?
A   Yeah.
Q   What did you feel when DJF tried to bite your privates?
A   His teeth and lips, he just rubs them.
Q   Did it hurt when DJF did that?
A   A little bit.
Q   Did DJF say anything?
A   Yes are you cranky with me.
Q   What did you say?
A   Yes.
Q   Why did you say yes?
A   Because he wouldn’t leave me alone.

The complainant then goes on to describe attending DJF’s home again that day and where he placed his finger in her vagina. The following is recorded:

Q   Who was home at the time?
A   Just DJF in the garage. He said he was thinking when he was holding me and then went inside and then he started biting my private again and then I ran and he chased me and I opened the door and went home.
Q   How did DJF hold you in the garage?
A   He held me and kissed me and put his hand on my private part and wiggled his finger around.
Q   Did DJF touch your privates through your clothes?
A   He put it in my private where the babies come out.

The evidence before us does not enable a positive finding that the conduct alleged to have occurred by DJF happened. However, we are not satisfied that we can make a finding that the events did not occur. The statement of the complainant and the statement of DJF’s son place DJF in the lounge room tickling the complainant. DJF admits he was doing this. We find that DJF was physically involved with the complainant at that time and we accept the evidence of DJF’s son that it may have been going on for half an hour and that she was asking DJF to stop. In our mind this conduct is not conduct of an adult that would be acceptable specifically when a child is asking the adult to stop. This adds to our suspicion as to truthfulness of the version of events given by DJF. The allegations concerning this complaint are of a similar nature to those relating to the earlier 1991 allegations (above). The cumulative number of events adds weight to our finding of a lingering doubt or suspicion that the events may have occurred (see - Tilley v Children’s Guardian).

The 1996/1997 charges – DJF’s stepdaughter

The NSW Police on 28 August 1997 interviewed DJF’s stepdaughter, who at the time was 9 years of age. In that interview (page 195-207, Exhibit R1) DJF’s stepdaughter made the following disclosures:

DJF digitally penetrated her vagina and has done this more than once;

DJF had sexual intercourse with her on one occasion in her bedroom which caused her pain;

DJF had sexual intercourse on one occasion in his bedroom and her brother walked into the bedroom after DJF had removed his penis. This intercourse caused her pain;

DJF’s stepdaughter does not feel safe around him and described her feelings as being frightened.

The grounding questions asked by NSW Police of DJF’s stepdaughter in the interview included asking her why she thought that she was being questioned. She said, ‘Because my dad has been sexually harassing me.’ When asked to describe what ‘sexually harassing you means’ she said, ‘It means like they lie on top of you and sex you.’ The police officer asked DJF’s stepdaughter what the term ‘sex’ meant to her and she replied, ‘It means they put their rude part up your rude part.’ When asked what she meant by the word ‘they’ she said, ‘my dad’. The police interview went on to question what is their rude part and DJF’s stepdaughter responded: ‘The girls have a vagina and the boys have a penis. We were talking about this school when we were having a talk about child protection.’
At questions 24 to 30 the following exchange took place in the interview:

Q24   You said that your dad was sexually harassing you. Can you tell me what he did?
A   He touched me on the vagina with his finger.
Q25   How does he touch you on the vagina?’
A   He gets his finger and just touches me.
Q26   Is this on the inside of your clothing or on the outside?
A   He does it on the inside and outside.
Q27   Which finger does he touch you with?
A   His pointing finger.
Q28   What does he do with his pointing finger?
A   He puts it up my vagina.
Q29   What does he do then?
A   He lets me go. He gives me money and he tells me not to tell mum that he gave me money.
Q30   Can you tell me how many times dad has touched you with his finger?
A   He has touched me more than once. He has touched me a lot with his finger.

DJF’s stepdaughter said that this activity occurred prior to 30 July 1997. In a further part of the interview the following exchange took place:

Q48   Can you tell me what ‘starting sexing me’ means?
A   He took his shorts off, he took my pants off and then just got his penis and stuck it up my vagina.
Q49   Did you see his penis?
A   Yes.
Q50   Can you tell me what it looked like?
A   It had hair on it it was pointing down.
Q51   What did he do then?
A   He opened up my legs, and then he opened up my vagina, and stuck it in. He laid on top of me…
…
Q53   What did you feel when he did this?
A   I felt frightened and not safe.
Q54   Did you feel any pain?
A   Yes, I felt a lot of pain. It was hurting between my legs…
…
Q58   What did you do then?
A   I ran outside and told [name] my brother.
Q59   What did you tell [name]?
A   I told [name] that he sexed me and put his penis up my vagina [name] didn’t say anything.

Further questions were asked in relation to an incident which was witnessed by DJF’s stepdaughter’s brother in Goulburn:

‘Q68   What happened in Goulburn?
A   Mum had gone out, dad told [brother’s name] to go and feed the ferrets and then he picked me up and took me into mum and dad’s room. He took off my clothes, and he also took off his. He laid on top of me and started to sex me.
Q69   Can you remember what you were wearing?
A   Yes, I was wearing a maroon tracksuit and a maroon jumper that went with it and a T shirt.
Q70   What clothes did he take off?
A   He took off all my clothes, including my knickers.
Q71   Can you remember what dad was wearing?
A   Blue shorts and a T shirt.
Q72   Did he take all of his clothes off?
A   He just left his T shirt on and then he done the same thing that he usually does to me.
Q73   What’s that?
A   Rape me.
Q74   Can you tell me what rape means?
A   It means when you sex someone?
Q75   Can you tell me how he sexed you?
A   He opened up my legs and opened up my vagina and stuck his penis up me again. He put his finger in before he put his penis in. He usually puts his finger in, but not a lot.
Q76   Which finger did he put in?
A   The same that I told you last time, his pointing finger.
Q77   What did he do when he put his finger in your vagina?
A   He put it up and touched me and then took it out.
Q78   How long did he do this form?
A   About 5 or 10 seconds.
Q79   Then what did he do?
A   He took it out and then he put his penis in.
Q80   What did he do when he did this?
A   When [brother’s name] walked in he told [brother’s name] to knock first.
Q81   Did [brother’s name] walk into the room when dad was doing this?
A   [Brother’s name] walked in just after dad took his penis out.
Q82   Where was dad when [brother’s name] walked in?
A   He was standing up, he was about to pull his pants up…

On 28 August 1997 DJF’s step-son was interviewed by police and he said the following things (page 180-185 Exhibit R1):

‘Q18   How do you know that your dad is harassing your sister?
A   I walked in, I opened up the door one day and saw him on top of my sister and he started shouting at me, ‘why don’t you knock?’
Q19   Do you know when this happened?
A   While we were in Goulburn, it happened around July.
Q20   July of this year or another year?
A   This year.
…
Q29   Where were DJF and DJF’s stepdaughter when you walked in on them?
A   In my parents’ bedroom.
Q30   What did you see?
A   My dad [DJF] with his belt undone and my sister with no clothes on. When I came in she jumped and ran behind a door.
Q31   What happened then?
A   He started shouting at me, ‘why don’t you knock next time?’ and then he started doing up his belt.
Q32   What happened then?
A   He started walking off and my sister started crying.
Q33   Whereabouts in your parents’ bedroom were they?
A   On the bed.
Q34   Were they lying, sitting or standing?
A   Lying…
…
Q47   Did you speak with [DJF’s stepdaughter] about it?
A   Yes.
Q48   Do you remember what you said to each other?
A   No.

The Department of Community Services (as it then was) recorded DJF as a person associated with causing risk to his stepdaughter. Following that investigation DJF was charged on 29 August 1997 with two counts of aggravated sexual assault - victim under the age of 16 years.
The matter was heard in a Local Court of New South Wales on 11 December 1997. During the course of that proceeding DJF was charged with doing an act with intent to pervert the course of justice. The facts of that alleged offence are as follows (page 35 R3):

DJF promised his son a motor vehicle if he ‘did a favour for him’. DJF allegedly paid for his son’s train fare to Blacktown Station. He had prepared a statement for his son to sign to the effect that his stepdaughter and his stepson were making up the allegations and they had told his son that this in numerous telephone conversations.

DJF’s son was unwilling to sign the document because it was untrue.

DJF made some minor changes to the document and attempted to get his son to sign it the following day. An argument ensued and DJF’s son signed the document as he was fearful he would be assaulted. DJF then told his son that he needed to go with him to his solicitor’s office.

DJF’s son feared that he had done something wrong and contacted a family friend and faxed her a copy of the unsigned statement he had signed (as DJF had taken the signed copy). The family friend telephoned the police. After the charges DJF’s stepdaughter, stepson and their mother relocated to Queensland.

On 12 September 1997, DJF was charged with the offence of doing an act with the intent to pervert the course of justice.
On 23 March 2018 (page 284 Exhibit R1) the solicitor for the Office of the Director of Public Prosecutions of New South Wales wrote to the respondent. It states the following:

Our office did not proceed with the charge of sexual assault with a child under 10 years (x2) due to the Crown witnesses and complainant living in Queensland where they were unwilling to travel to give evidence at trial. Subsequently without this evidence there was no reasonable prospect of a conviction.

The charges relating to DJF’s stepdaughter were dismissed at the Parramatta Local Court on 11 December 1997.
The charge of intent to pervert the course of justice resulted in a hung Jury at trial held on 2 September 1997.
In cross-examination DJF was asked questions relating to the charges of two counts of aggravated sexual assault of a child under 16 years in 1996 and 1997. He said that the complainant was his stepdaughter who ‘tried to blackmail me’. He denied digitally penetrating her vagina and when asked whether it was on more than one occasion he replied ‘Never. If I digitally penetrated what, where was the evidence? The doctor’s report says that nothing - nothing of that occurred.’
DJF denied he had sexual intercourse with her on one occasion in his bedroom but agreed that his stepson did look around the door. DJF denied the version of events given by his stepson who walked into the room and said that he saw DJF on top of his stepdaughter on the bed and that his sister had no clothes on. DJF denied each of the allegations concerning the version of events given to police by his stepson in cross-examination.
Counsel for the respondent asked DJF why he believed his stepdaughter was trying to blackmail him with in 1997 and 1998. He replied:

Later than that, she rang up and wanted a - wanted me to buy a Holden car or she was going to make further complaints to the police. I went to Ipswich Police Station and reported the matter there but they have got no record, when I went back in, last year, to try and get a copy of the complaint, they had no - couldn’t find anything on the system.

The cross-examination went on and DJF said he believed it was his son who was behind the blackmail attempt.
The circumstances surrounding the charge of doing an act with intent to pervert the course of justice were put to DJF. He responded by saying that those charges were not successful and ‘I was, that was proved to be wrong.’ He denied promising to buy his son a motor vehicle and paying for a ticket from Blacktown to the ACT where DJF was living at the time. The following exchange took place:

Q   You had prepared a statement, hadn’t you, on your computer at home, for [DJF’s son] to sign?
A   No, it was - he changed, he added stuff to that afterwards, before he took it out, of the computer.
Q   In the statement that you prepared, you wanted him to swear that he told the children explicit details of the workings of sexual intercourse, that is [DJF’s stepson and stepdaughter]?
A   I asked him what, you know about it.
Q   You prepared that?
A   Yeah.
Q   You wanted him to swear that [DJF’s son] had told DJF’s stepdaughter and DJF’s stepson how sexual intercourse was done and what was involved in it, in detail?
A   Well that is what he - that is what he had - I had got back from - from [his mother] about it, what [stepsons name] - they told - told their mother. That is what she told me.
Q   You wanted him to say that?
A   I wanted him to tell the truth, that is right.
Q   You wanted him to say in this statement that ‘DJF’s stepdaughter and stepson had caught you and your wife having sexual intercourse?
A   I don’t remember saying that in it.
Q   You wanted [DJF’s son] to say that ‘He had told DJF’s stepson and stepdaughter all of this in case they wanted to split up their mother and you’?
A   That is correct, that is part of it, yeah, I - but that - what statement they got there on the pile is not everything that I had said, he has added stuff to it.
Q   Sir, you wrote that statement didn’t you?
A   I wrote part of it, he has added stuff to it.
Q   You presented [DJF’s son] with this statement, he was not willing to sign it, was he?
A   He did sign it.
Q   You made some changes to the document and you attempted the following day to get him to sign it?
A   No, I did not.
Q   It was then that he signed the document because he said that ‘He thought that you would assault him if he didn’t’?
A   That is what he claimed in the statement to the police, yeah.
Q   Because during the time that [DJF’s son] was living with you, you were quite clearly violent to him, weren’t you?
A   Yeah, to - I suppose, I - to me it was no different to what I had been brought up with.
Q   During the time that [DJF’s son] was living with you, you hit him with PVS piping?
A   Yep, we were doing electrical work, yep.
Q   You threatened to cut his fingers off?
A   No.
Q   You burnt his fingers with matches?
A   He was - burnt his fingers when he put a paperclip in a power point and turned it on. He burnt his fingers.
Q   You hit him with sticks?
A   Yep.
Q   You kicked him with steel capped boots?
A   Not to my knowledge.
Q   You threatened him with physical violence?
A   Yeah, I told him, you know, he was one who was stealing and breaking and enter, stealing alcohol and breaking into shops and coming home drunk at 11 years old. I took him to the police station too and had him locked up.

Later in the cross-examination at page 41 the following exchange took place:

Q   You don’t remember. What I suggest to you, sir, is that you prepared a statement for [DJF’s son] to sign about the evidence that DJF’s stepdaughter and stepson gave, to cast some doubt over these charges against you, the charges of aggravated sexual assault.
A   I started to prepare a statement, [DJF’s son] - [DJF’s son] added to it afterwards when I was at work.
Q   The reason you did that was to cover up your wrongdoing?
A   No, I did nothing wrong.
Q   Because in the statement also that you wanted [DJF’s son] to sign, you wanted him to swear to be true that he had witnessed an incident when [DJF’s stepdaughter] had fallen over and hurt her vagina on a tree?
A   No, we - that was a skiing accident we had at Mt Selwyn, we were all down at Mt Selwyn, we were on toboggans. We went down - she went down the hill and turned the wrong way, and hit the tree.
Q   As a result of this accident, she sustained trauma to her vagina?
A   Yes.
Q   The reason that you wanted [DJF’s son] to sign this statement is because if the medical evidence of [DJF’s stepdaughter] showed any trauma to her vagina, you would be able to make a case to the Court that it wasn’t because of anything you had done, it was because of an accident that occurred some time ago?
A   That is not true.

DJF’s son on 5 September 1997 gave a statement to NSW Police in relation to the charges his father was facing to do an act with intent to pervert the course of justice. He records at paragraph 4 in that statement (page 1 R8) the following conversation taking place on 29 August 1997:

He said [DJF] ‘Do you want a torana?’ I said, how much. He said ‘Do me a favour’ I said ‘What’s the favour’ he said ‘I can’t tell you on the phone come to Sydney as soon as you can’ I said ‘I don’t have any money’ he said ‘I’ll pay for a train ticket’.

DJF’s son said he really wanted the car so he decided to go and on 1 September 1997 he travelled by train from Grafton to Central Station in Sydney on a prepaid ticket. He then travelled from Central Station to Blacktown Station where his father picked him up by car from the station and took him back to his home where they arrived at about 10.30 p.m. His father handed him a piece of paper which was a typed statement and the following conversation ensued:

He said ‘Do you have any money?’ I said ‘No’ he said ‘Here you go here’s $20’.

DJF’s son goes on to state that the statement contained information in regard too, we assume, the same people referred to above. The statement contained in the bundle at (Exhibit R8) has the names redacted. However, it is in our view consistent with the discussion above. DJF’s son at paragraph 8 states:

The statement was already completed by my father before I arrived at his home. He showed it to me and I read it. The following conversation took place he said ‘I want you to sign this’ I said ‘I can’t say this in Court.
Dad started to get angry and I know that he can be very violent when he gets angry. He has hit me many times with his hands and other objects.

DJF’s son continued to refuse to sign it and before he went to bed ‘I’ll sign it on Tuesday afternoon.’
The next morning DJF again pressed for his son to sign the statement and he complied with this request as ‘I didn’t want to have the fight with dad.’ Importantly, he goes on to say in his statement: ‘He took the statement from me and put it in his briefcase. The statement I signed is slightly different to the copy I can produce. I think dad must have altered it slightly the night before. The copy I have is the one he showed to me on the previous night. Dad went to work and I spent the day in Blacktown.’
DJF’s son said he told a friend about this incident.
The statement which is attached and alleged to have been drafted by DJF refers to DJF’s son telling his step son and daughter ‘very explicit details of the workings of sexual intercourse.’ He said that he had told them these things about what happens with sexual intercourse in case they wanted to split up their [mother] and DJF, ‘as I wanted to seek revenge on my dad’. The statement goes on to say that he was retaliating for his father dobbing him in to the police in relation to break and enters he had committed. The incident referred to above in cross-examination concerning the alleged damage to DJF’s stepdaughter’s vagina whilst on a ski trip is also recorded in the document.
We have no evidence before us that DJF’s son has withdrawn the contents of his statement to police. The only further statement DJF’s son has put before the Tribunal is contained in a Statutory Declaration made 5 June 2018 (Exhibit A7). In that regard the following is recorded:

I, [DJF’s son] of [address] in the State of New South Wales do solemnly and sincerely declare that [DJF] has never molested me at any time. I also state that when I was at [primary school] he did train the soccer team at the school and that there was only one female in the team.’

This further statement is compelling in our view in that DJF’s son had the opportunity to withdraw the allegations he made against his father with respect to the charges of doing an act with the intent to pervert the course of justice. He has not done so. Despite the hung Jury in the District Court of New South Wales acquitting DJF, we are satisfied on the balance of probabilities, having placed greater weight on the evidence of DJF’s son, that DJF pressured his son to sign a self-serving statement in the terms as set out in the annexure to DJF’s son’s statement given to the police.
In relation to the allegations concerning DJF’s stepdaughter, we find as follows. The description of the version of events provided by DJF’s stepson and stepdaughter in our view is compelling. The complainant was 9 years of age at the time of the alleged incidents occurring in 1996 and 1997. DJF’s stepdaughter provides a detailed account of the conduct which is alleged to have occurred at the hand of DJF. We find it highly unlikely that such detail has been fabricated by two children. Independent statements have been given to police by both of DJF’s stepdaughter and stepson. They are similar in nature and in our view satisfy us on the balance of probabilities that the conduct complained of by DJF’s stepdaughter occurred.
We reject DJF’s evidence that the allegations were fabricated based on the purported scheme devised by his son which was the subject of the intent to pervert the course of justice. It is fanciful in our minds that children would go to such lengths in an attempt for ‘revenge’ as submitted by DJF.
If we are wrong in this finding, we are certainly satisfied that there is a lingering doubt as to these events not occurring.

October 1996 charges relating to a psychiatric hospital

Incident relating to Patient 1

NSW Police facts outline a complaint made by Patient 1 at a psychiatric hospital in New South Wales (pages 66-67 R1). The allegations include the following:

in 1996 a female Patient 1 was an inpatient at a psychiatric hospital in New South Wales. She was on medication for the treatment of a medical condition. DJF was employed as a nurse at the hospital;

between 21 November 1996 and 19 December 1996:

DJF took Patient 1 to an unused storeroom in the hospital. He removed her underwear and placed his penis inside her vagina. She did not consent to sexual intercourse;

on a separate occasion DJF went into Patient 1’s bedroom and exposed his penis. Upon doing so DJF caused his penis to be inserted into the mouth of Patient 1 and then he ejaculated.

Incident in relation to Patient 2

The facts relating to the complaint of a female Patient 2 at the same hospital are as follows:

in 1996 Patient 2 was an inpatient at the psychiatric hospital in New South Wales. She was on medication for the treatment of a medical condition. The applicant was employed as a nurse at the hospital;

the applicant took Patient 2 around the side of a building where he kissed her and place his hand inside her shirt and onto her breast. Patient 2 pushed DJF and ran away.

Following the allegations DJF was charged with a number of sexual offences relating to both women which include:

One count of aggravated indecent assault - victim has an intellectual disability and two counts of sexual intercourse within consent in late 1996. The complainant was an adult. The charges were dismissed at the Goulburn Local Court on 20 January 1998.

One count of aggravated indecent assault - victim under the authority of DJF in late 1996. Patient 2 was an adult. DJF was found not guilty by verdict at the Goulburn District Court on 21 September 1999.

On 25 September 2001, findings of professional misconduct and unsatisfactory professional conduct were made against DJF in the Health Care Complaints Commission. The findings related to proven allegations, on the balance of probabilities, that DJF had sexual intercourse without consent with a patient and did not keep professional boundaries between himself and the patient (Exhibit R4).
DJF denied any of the allegations concerning the charges of which he was found not guilty by verdict. He agreed that the people whom he had authority over at the psychiatric hospital were ‘vulnerable people’. DJF denied the allegations that he took Patient 1 into a storeroom and had sexual intercourse with her. In particular he said: ‘I had erectile dysfunction so I don’t know how I could have done these things.’ He denied each and every other allegation put to him by Counsel for the respondent. DJF raised as a defence in the criminal proceedings that he could not have had sexual intercourse with Patient 1 on the basis of impotency. He agreed in cross-examination that there was no medical evidence presented at the criminal trial in this regard and stated: ‘I couldn’t find the paperwork, couldn’t find the doctor because he was at the medical centre in Penrith when I went there, and the doctor at the surgery I went down to when I had a reaction to the drugs that he gave me, he was at Parramatta and I couldn’t find - find his details.’ DJF was also unable to provide any paperwork or medical evidence to support his claim of impotency during these times in this hearing.
DJF agreed that the findings of the Nurses Tribunal on 25 October 2001 were that he was guilty of professional misconduct. A positive finding was made by the Tribunal that he had had sexual intercourse with a patient involving two sexual acts without consent. He was also found to have visited the home of Patient 1 after she was discharged from hospital which was in breach of professional boundaries. DJF in this hearing denied all of the allegations which were found to be proven by the Nurses Tribunal.
We have taken into consideration the District Court of New South Wales found DJF not guilty of the charges by verdict. However, we accept the very detailed findings of the Nurses Tribunal that DJF did in fact, on the balance of probabilities, visit the home of Patient 1 on 31 December 1996. This visit breached professional boundaries of him as a psychiatric nurse. The Tribunal was also satisfied that DJF engaged in an act of sexual intercourse and an act of oral sex with Patient 1 without the consent of Patient 1. We make a positive finding in this administrative review application similar to those findings made by the Nurses Tribunal.
There is insufficient evidence in our view to make a positive finding of the allegations concerning Patient 2 and also having considered the discharge of DJF with respect to the District Court proceedings where he was found not guilty by verdict. However, in our mind, given the cumulative factors of all the complaints made against DJF, we cannot make a finding that the events did not occur. We therefore have a have suspicion that the events may have occurred as alleged and are cumulative factors we have taken into consideration when assessing DJF’s real and appreciable risk as to the safety of children.

The report of Ms Miriam Wyzenbeek

DJF has relied on a report of Ms Miriam Wyzenbeek, psychologist, dated 13 March 2018. Ms Wyzenbeek concludes that DJF, despite the seriousness of alleged sexual violence, is at the lowest category of risk for sexual reoffending. She states

DJF is unlikely to be at risk of committing a further sexual offence, because of the two decades that have passed since the last allegation. However, if he were to sexually reoffend, it would likely be opportunistic and against a biologically unrelated female who was in a vulnerable position relative to him (i.e., he would likely be in a position of power or trust).

Ms Wyzenbeek goes on to state:

DJF previously endorsed attitudes supportive of corporal punishment against children. He identified that his past behaviours could be regarded as physically abusive and wrong and does not appear to endorse such behaviours now. However, he does appear to lack insight into the risk factors related to his poor use of corporal punishment against children and the impact of physical abuse on children. In my opinion, this represents a greater area of concern. DJF’s low level of self-awareness, interpersonal abrasiveness and tendency towards being easily agitated means that he may do harm because of thoughtlessness, rather than deliberately be violent. It is recommended that DJF engages in psychological intervention (of approximately 6 to 12 sessions) to address these past behaviours and to address any ongoing risk of violence towards children, prior to being allowed unsupervised contact with children or being allowed to work with children. …

Importantly, Ms Wyzenbeek makes the following disclaimer on the last page of her report (page 17 Exhibit A4):

Limitations of present assessment: risk is dynamic in nature and any risk assessment is only as reliable as the information available at the time of assessment. As already noted, I did not have access to several pieces of information when forming my opinion of DJF’s risk. If further key information becomes available, or if DJF presents circumstances significantly changed, I should be consulted as this may affect my conclusion.

Considerable discussion and submissions were made by the respondent in relation to the report of Ms Wyzenbeek. It became readily apparent that Ms Wyzenbeek had not been provided with much of the information that was before the Tribunal for determination. We note in that regard the documents provided to Ms Wyzenbeek are listed on page 2 of her report at paragraph 5. Those documents only include the following:

Final Decision to Refuse Working With Children Check by the respondent (23 January 2017) and reasons for that decision.

Statutory Declaration of DJF 1 August 2017.

Photocopy of DJF’s Disability Services Positive Notice Card, expiry 7 August 2015.

Letter from a solicitor Western NSW Community Legal Centre, 1 August 2017.

Exhibits A5 and A6.

The application for this administrative review.

The Tribunal had in excess of 1,000 pages of documents before it concerning this application. There is no dispute that the majority of those documents were not put before Ms Wyzenbeek. The matter was adjourned to enable DJF to rectify that situation and obtain a further report from Ms Wyzenbeek. Despite that, DJF was unable to, or chose not to do so.
Cross-examination of Ms Wyzenbeek revealed a change in her conclusions. The following exchange took place:

Q   Ma’am, do I take it from your evidence that your opinion now, having the benefit of more information about the complaints that have been made about DJF, is that you could not be wedded to saying that he is at low risk, that you would certainly need to speak to him about this other information before, and do further assessment.
A   I am certainly not wedded to any kind of assessment of risk because I appreciate that risk is dynamic in nature and it is based on the information available to you at the time of making your assessment and that goes for this case and all other cases. Obviously in this case there was a lack of information available to me, both in terms of the information verbally provided to me by DJF, but also in terms of any kind of other documentation provided to me.
Q   Ma’am, I don’t make any criticism of the opinion that you came to with the information you had.
A   Yes.
Q   What I am suggesting to you is that given there is more information that you have learnt about just now when you have been asked questions, you would agree, wouldn’t you, that you wouldn’t be held to your opinion that he is a low risk, that you would need to see further information and do a further risk assessment, given the prevalence of the complaints and the number of complainers.

A Yes, I think that would make it - that would be warranted in this case.

Counsel for the respondent went further in the cross-examination of Ms Wyzenbeek to ask questions concerning the recommendation that DJF would benefit from engaging in psychological intervention of approximately 6 to 12 sessions to address his past behaviours and any ongoing risk of violence towards children. It was evident that DJF has not undertaken such psychological intervention and the following conclusion was provided by Ms Wyzenbeek:

Q   During the course of his evidence, he was asked some questions about this opinion of yours and the treatment that you proposed. His evidence was that he did not see that he was a risk to children in any respect; that he didn’t understand what work, therapeutic work he needed to do; that he was unsure, despite the benefit of your report, why he needed to do it. Assuming for a moment that was his evidence, would you agree, you would agree, wouldn’t you, that despite your comprehensive report, it hasn’t assisted him to gain insight into what his problems might be in relation to children?
A   Some of that cut out. Let me answer to the best, I think I got most of it. If you are saying that if what you are saying is he hasn’t followed the recommendations of my report and he can’t see any benefit to engage in any treatment, then I would say his level of insight continues to be very low, and that he continues to be quite - and his defensiveness continues to be high.
Q   You would also have a concern, wouldn’t you, if that was his evidence, that he may have an inability to take on board any professional advice that is inconsistent with his own personal opinion about what he needs.
A   You have become really quiet. Yeah, that is better I do have concerns about his ability to take on professional advice. He is very rigid and inflexible in his thinking…
Q   If it was the case that he remains rigid in is thinking, that is that he doesn’t have any problems, you would agree, wouldn’t you, that the course of treatment that you have prescribed is probably going to be of little benefit to him?
A   That is quite possible, that is quite possible.
Q   In respect of the evidence that he gave, assuming that to be true, if he did undertake the therapy that you had recommended, you would want to see, wouldn’t you, some sort of report at the end of that treatment to indicate that the treatment has been positive in assisting DJF to gain insight?
A   Yeah, it could happen a couple of ways. You could have the treater and professional provider provide a report indicating a summary of what was done in treatment and DJF’s engagement in treatment. You could also have an updated risk assessment and his understanding of his risk factors and management and insight into all of those sorts of areas could be explored, as part of that an opinion could be made as to how much kind of self-awareness there was and shift in understanding as a result of his engagement in treatment.
Q   Ma’am, there is nothing that you have heard today in respect of the evidence that he has given or the evidence that was adduced, that would lead you to change your view that at the present time, without psychological intervention, the Tribunal should be very cautious about allowing DJF to have unsupervised contact with children or being allowed to work with children?
A   I remain that I think the Tribunal should be very cautious with it.

Cross-examination of the expert was significant. The expert’s conclusion being that the Tribunal should be very cautious about allowing DJF to have unsupervised contact with children, or being allowed to work with children. In our view Ms Wyzenbeek clearly finds that there is a risk in doing so. The opinion of Ms Wyzenbeek supports the Tribunal’s conclusion that DJF is a person who is a risk to the safety of children.

Section 30(1) considerations

Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(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.

Each of the trigger matters are extremely serious. The allegations concern 15 complaints of sexual assault by 6 complainants, being children and vulnerable adults with disabilities. The trigger events span a period of over 15 years and many of those events are extremely similar in nature.
The complaints in relation to children involve two of DJF’s biological children. Four of the other children are children that were in his care at the time of the alleged abuse. The complaints all relate to sexual abuse, physical abuse, coercion, suspected coercion, emotional and psychological abuse. DJF in his cross-examination denied each and every complaint against the children and also the two complaints that were made by adult Patients 1 and 2 in a psychiatric hospital.
The Tribunal has significant concern that DJF in respect of each of the complaints has provided excuses as to why some of the children might be making up their stories. Some of those excuses included that children were inventing the allegations in order to despatch DJF as their mother’s boyfriend. DJF in answer to a question put to him in cross-examination responded that the child had done this before with a different man and it is not unbelievable. We find DJF’s explanation on many of these allegations extraordinary. We also find it extraordinary that a 12 year old child who made a complaint of sexual abuse against him was seeking to do so in order to blackmail him for a motor vehicle.
Similarly, we do not accept DJF’s evidence that he was unable to have conducted himself with respect to the sexual offences on Patient 1 because of impotency. There was no evidence put before the District Court at Queanbeyan nor before the Nurses Tribunal in which findings were made that that evidence about his alleged impotence was true.
The only allegations of violence that DJF agreed that he committed related to hitting his two biological children with sticks, belting them and hitting his son with a PVC pipe. These in themselves are serious matters evidencing DJF being a risk to the safety of children.
DJF denied each of the allegations of sexual assault, however, he agreed that all of the allegations are serious.

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

The last allegation concerning DJF’s conduct occurred 20 years ago. Historical allegations are not necessarily determinative of a positive finding in favour of DJF.

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

DJF was aged between 27 to 44 years of age at the time of the alleged offences.

(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.

Each of the complainants were children and vulnerable adults.
The children who complained against the conduct of DJF (other than the 17 year old) were particularly vulnerable given they were related to him and/or in his care at the time the alleged assaults occurred. The children were aged between 7 to 9 years at the time of the events complained of.
In relation to Patients 1 and 2, each of those adult women were medicated for mental health disorders. They were admitted to psychiatric facilities where DJF was employed at the time as a psychiatric nurse. Each of the two adult complainants were particularly vulnerable given their state of health and that they were being treated for mental illness. It is also relevant that DJF at the time had significant control over Patients 1 and 2 in his professional role as a nurse.
The 17 year old victim was vulnerable because she was in a place where she had an expectation she would be safe, being her home where the assault is alleged to have occurred.

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

The difference in age between DJF and the child victims was between 10 to 34 years.

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

With respect to the children aged 7 to 9, DJF knew they were children.
It is unknown whether DJF in 1980 understood that the complainant was a child.

(g) The person's present age.

DJF was at the time of hearing 64 years of age.

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

DJF has been the subject of complaint about his conduct towards children over many years. A history in that regard follows below:

in 1989 DJF was keen to be involved in school and coached the girls soccer team. Complaints were made by girls about discomfort being near DJF because he invaded their space. The Principal of the school terminated him as a coach (page 148-149 Exhibit R1). DJF’s son’s statement outlined he only taught 1 girl in a soccer team;

on 26 February 1991, DJF’s daughter (MS) then aged 11 years provided a statement to police setting out the following:

she remembers a time when DJF came into the room and sat next to her and was rubbing her chest against her skin;

DJF hit her with a conduit across her bottom, legs and other parts of her. This happened for a long time. DJF gets angry and takes it out on her and her brother;

DJF slapped her across the face and later made her jaw hurt. DJF kicked her with steel capped boots when she called him a ‘bastard’ and then she had a bruise that she showed her nan;

DJF locks her and her brother out of the house and tells them not to come home. They go to a neighbour’s home or stay in the backyard. DJF collects them and hits them with conduit and sends them to bed;

last year DJF told her that her mother was dead. She rang her grandmother’s sister to find out if it was true. Her father then told her her mother wanted nothing to do with her and her brother and didn’t care about them;

his daughter, then aged 11 years, disclosed in an interview on 5 March 1991 that:

DJF used to touch her around her chest and belly when she was about 5 or 6 years until she was 8 years old;

the applicant still tickles her and makes her kiss him on the lips and makes the boys kiss him on the lips and he pushes real hard. DJF has tendered two statements prepared by his daughter dated 19 September 2018 and 7 June 2018 (Exhibits A8, A14). In both of those statements she denies having ever been sexually abused by her father. She said she remembers at times being tickled by her father but there had been no sexual inappropriate sexual behaviour. She explained the hard kissing as just something related to the age of her father. In the statement of 19 September 2018 she denies that DJF coerced her in making the statement which was put before the Tribunal. We accept her evidence in this regard.

on 14 January 1992 FACS recorded an event involving DJF’s son then aged 12 as follows (page 231 R1):

DJF hits his son with PVC piping;

DJF threatened to cut off his son’s fingers;

DJF burned his son’s fingers with matches.

During cross-examination DJF agreed with (i) but denied (ii) and (iii). We find positively that (i) occurred, there is insufficient evidence to support (ii) and (iii), but we have a lingering doubt and suspicion that at least the alleged threats may have occurred.

On 17 January 1992 DJF’s son (then aged 11 years) was interviewed by Family and Community Services (pages 224-228 Exhibit R1) disclosing the following:

that DJF hits him with conduit pipes, with sticks and kicks him with steel capped boots;

that the applicant tickles him in the genital area.

DJF accepted during his cross-examination that two of the events, with the exception of steel capped boots, occurred. He denied (ii). We make a positive finding that DJF used to hit his son with conduit pipes and sticks and again we have a suspicion that he may have also kicked him with steel capped boots given the consistency in reporting of both DJF’s son and daughter at the time. We are unable to make any positive finding that DJF tickled his son in the genital area, but given the cumulative conduct of DJF and no retraction of the allegation by DJF’s son, we have a suspicion that the conduct may have occurred (- see Tilley v Children’s Guardian);

on 25 June 1996 DJF’s son (then 15) disclosed to ACT Community Services that DJF beat him a lot and that this had been going on ever since he could remember (page 346 Exhibit R2). DJF in his evidence said that he did hit his son and we are satisfied on the balance of probabilities that these events occurred;
on 4 November 1996, DJF’s son (then 16) disclosed that he had left his father’s home because his father threatened him with physical violence (page 346 Exhibit R2). This was never put to DJF in cross-examination and we are unable to make a positive finding in this regard. However, given the history of violence by DJF towards his son, it is probable that he left his father’s home for these reasons;
DJF’s stepdaughter (then aged 9) disclosed in an interview with police on 28 August 1997 that DJF touched her friend on the bottom when her friend had a sleepover at their home (page 200-201 Exhibit R1). We are unable to make any positive finding in this regard. However, this is a further cumulative event we have taken into consideration in assessing the general risk and a suspicion as to a pattern of conduct of DJF over the years.

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

DJF has an extensive criminal history spanning many years, including convictions for dishonesty related offences.
There have been many complaints over a number of years by biological children, stepchildren and other persons under the care or control of DJF about his conduct toward them. The cumulative effect of the complaints demonstrates a pattern of behaviour towards children that in our mind infers the likelihood of repetition.
The evidence of Ms Miriam Wyzenbeek, Clinical and Forensic Psychologist, in our view supports this finding. Ms Wyzenbeek in cross-examination said the following:

Q   Were you aware in 2001, after a hearing, DJF was found guilty of professional misconduct and unsatisfactory professional conduct in relation to a complaint made by one of the patients; that a finding had been made that he had sexual intercourse with or without consent; and that he didn’t keep professional boundaries between himself and the patient; and as a result he was removed from the Nurses Register for 5 years, were you aware of that?
A   No.
Q   But certainly when DJF spoke to you in respect of the complaint that he said had been made about him at the medical facility, he maintained that that was not true?
A   Yes he maintained it was not true.
Q   Did he tell you, could you think of any reason why this lady might have made a complaint about him?
A   He attributed it to mental health issues.
Q   Can I put to you a pattern that in 1980 a 17 year old may have complained that DJF had raped her; in 1989 some girls made a complaint to a school principal that they were uncomfortable with DJF coaching soccer; that in 1991 he was charged with a sexual assault of a 7 year old girl, that being witnessed by his own daughter; in 1991 a complaint was made of sexual assault by his own daughter; in 1991 a complaint was made by a 7 year old girl that was witnessed by his son; in 1991 and 1992, complaints were made by DJF’s son that he physically and sexually assaulted him; in 1996 charges were laid against him in relation to the sexual assault of his stepdaughter, witnessed by his stepson; and in 1996, complaints were made by two other women in a mental health facility that he had sexually assaulted them. You would agree, wouldn’t you, that this is a remarkable pattern of complaints being made about an individual?
A   Yes I agree.
Q   It would be unusual, wouldn’t it for all of these complainants to be false?
Q   It would be unusual, wouldn’t it that that amount of complaints levelled against someone for those all to be false?
A   I’m sorry, the last bit of that sentence keeps cutting out but, look I think I understand the gist. I mean, you would need to be an incredibly unlucky individual to have that number of complaints - complainants who do not know each other, and the complaints to all be of a similar nature, for it to happen, if it wasn’t happening. Is that the kind of - the gist?
Q   Yes.
A   Yes I agree.
Q   Given the number of complaints that have been made about him and the number of different individuals that have made complaints about him, does that lead you to have a different view about your opinion that he is of low risk of sexual offending?
A   I think, given more information, I would definitely be able to question him further, if I understood more about any kind of present risk factors such as sexual risk sexual interest in children and sexual deviancy, understanding of risk factors, what he is doing to manage those risk factors if they are present, areas such as those, I would definitely be able to explore further. I was not able to explore them in any detail with him, without that information available to me.

We accept Ms Wyzenbeek’s evidence in this regard and find the likelihood of any repetition of DJF’s conduct to be of concern. Of course such repetition has enormous impact on children.

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

We have taken into consideration DJF’s Statutory Declaration made 1 August 2017 in which he denied all of the charges of sexual and common assaults on children.
We have taken into consideration DJF’s evidence in chief and cross-examination. DJF has provided two lay references which have been considered and are found at (Exhibits A5, A6). These referees attest to being ‘happy’ to have DJF look after their children or grandchildren. However, we have placed little weight on these references given there is no indication that they are aware of all of the alleged offending conduct or indeed all of the conduct complained of by the various complainants.
We have taken into consideration the Statutory Declarations of DJF’s son and daughter and refer to the discussion in relation to those above.

(j) Any relevant information in relation to the person that was obtained in accordance with section 36A.

There are no factors relevant to be considered.

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

The Family Services Branch Confidential Notification dated 4 September 1996 was obtained by NSW Family and Community Services and noted the following (page 148-150 R1):

an allegation that DJF molested his eldest daughter and that is why the family broke up;

an allegation that DJF molested a friend of his daughter’s whose ‘mother may have caught them in the act’;

allegations made by other parents that DJF builds trust whilst raising money for muscular dystrophy then molests while babysitting;

DJF’s stepdaughter complains of a sore groin and says it is from a skiing accident and complains of being punished for not eating.

We are unable to make positive findings in relation to these allegations raised by the respondent.

Findings

DJF in our view was not an impressive witness. He gave his evidence in an evasive manner and simply dismissed or denied most of the allegations put to him by the respondent’s Counsel. DJF had excuses and explanations relating to each of the most serious allegations of sexual and other assaults against children. The majority his excuses relate to people having had a vendetta or a grudge against him, which we find to be fanciful. We do not accept that a child of 7 to 9 years of age would have been able to create an elaborate story of complaints of sexual behaviour in such detail in order to despatch DJF from being in a relationship with their mother.

We are not satisfied that DJF is not a risk to the safety of children.
In the circumstances we affirm the decision made by the Respondent in refusing to grant DJF a WWCCC.

Section 30 (1A) consideration and findings

Given our findings that DJF is a risk to the safety of children, we are not required to make findings in this regard. However, if we are incorrect in our finding that DJF is a risk to the safety of children, the following is apposite:
The section provides:

(1)   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 directly 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.

We have considered the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s 30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

We accept and have taken into consideration the evidence of DJF and the references he submits support a positive finding in this regard. However, little weight can be attached to the references given they do not acknowledge the nature of the allegations to which DJF was charged.
In any event, if having all this information before them, we find a reasonable person would not allow his or her child to have direct contact with DJF that was not directly supervised by another person while DJF was engaged in any child related work.
The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.
75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

We find it would not be in the public interest in granting a WWCCC to DJF. We find that DJF’s right to follow his ambition of conducting a child related mobile jumping castle business, contrasted with the protection of children, are in this instance not complementary and therefore not in the public interest. Such activity would pose an unjustified risk to the safety of children.

Conclusion

For the reasons set out above, we reach the following conclusion.
The evidence and material received by the Tribunal establishes that DJF poses a risk to the safety and wellbeing of children.
It therefore follows that the decision of the respondent made on 23 January 2018 must be affirmed.

Orders

The decision of the Children’s Guardian dated 23 January 2018 refusing to grant the applicant a working with children check clearance is affirmed.

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

Registrar

Decision last updated: 04 December 2019

Medium Neutral Citation:	DJF v Children’s Guardian [2019] NSWCATAD 246
Hearing dates:	19-20 September 2018, , 6 December 2018 and 11 June 2019
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member A Limbury, General Member
Decision:	The decision of the Children’s Guardian dated 23 January 2018 refusing to grant the applicant a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing) Procedure Act (NSW) 1999 Evidence Act 1995 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 11 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CXZ [2019] NSWSC 1083 CKF v Children’s Guardian [2017] NSWCATD 6 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 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children’s Guardian [2018] NSWSC 942 Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 M v M [1988] HCA 68; 166 CLR 69 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DJF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitor: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2018/00059005
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.