DMF v Children's Guardian

[2019] NSWCATAD 2

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMF v Children’s Guardian [2019] NSWCATAD 2
Hearing dates:	14 November 2018
Date of orders:	02 January 2019
Decision date:	02 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member S Davison, General Member
Decision:	(1)    The decision of the respondent dated 6 June 2018 to refuse the applicant’s working with children check clearance is set aside. (2)    In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance
Catchwords:	CHILD protection – Working with children – Whether any real and appreciable risk – Acquitted at trial – No trial transcript available – No positive finding – Whether no hesitation in dismissing the charges as groundless - No lingering doubt or suspicion
Legislation Cited:	Child Protection (Working with Children) Act 2012
Cases Cited:	BRL v Children’s Guardian [2016] NSWCATAD 27. Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DMF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Ramage QC (Applicant) A Douglas-Baker (Respondent)   Solicitors: Strand Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00179247
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Summary

1. The applicant is a health professional who is seeking a working with children check clearance to allow him to continue to practise in his area of expertise.

2. Over a decade ago, the applicant was charged with one count of sexual assault and one count of aggravated indecent assault against his stepdaughter, with the alleged conduct said to have occurred over 20 years ago when his stepdaughter had been eight or nine years old. The applicant was subsequently acquitted at trial.

3. On the basis of these charges, the Children’s Guardian refused to grant the applicant a working with children check clearance. The applicant is now seeking a review of that decision under s27 of the Child Protection (Working with Children) Act 2012.

Issues

4. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

5. If we are satisfied that he does not pose a real and appreciable risk to the safety of children, we then need to consider:

• whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

• whether it is in the public interest to grant the applicant a working with children check clearance.

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

6. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children’s Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a prohibited person. The Children’s Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor subject to a risk assessment, the Children’s Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children’s Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012)

7. The Children’s Guardian conducted a risk assessment of the applicant because he had been charged with the aggravated indecent assault and sexual assault of a child. As a result of that assessment, the Children’s Guardian found the applicant to pose a risk to the safety of children and refused to grant him a working with children check clearance.

Allegations of sexual and indecent assault

8. To determine whether the applicant poses a real and appreciable risk to the safety of children, we need to consider the evidence before us in relation to the allegations that he sexually and indecently assaulted his (then) stepdaughter.

9. The allegations were first made by the stepdaughter to a school friend and, a couple of years later, to her mother (who was, by then, the applicant’s former de facto partner). The stepdaughter then made a statement to police, a copy of which is before the Tribunal.

10. Although the stepdaughter gave evidence at the subsequent trial, there was no transcript or tapes of the evidence before the tribunal and the stepdaughter was not called as a witness in these proceedings.

11. In relation to the charge of sexual assault, the stepdaughter alleged that one night when she was nine years old and asleep in bed, the applicant came into the bedroom she shared with her brother. According to the stepdaughter, the applicant was naked, had prised open her mouth with his fingers, put his penis in her mouth and moved it in and out. The stepdaughter said that she had pretended to be asleep but had her eyes open a bit. When her mother came into the bedroom and asked the applicant what he was doing, he said he was just saying goodnight.

12. In relation to the charge of aggravated indecent assault, the stepdaughter alleged that one morning when her mother had been out at breakfast, the applicant had asked her to come into his bedroom for a sleep in. When she was in the bed, he took her hand and put it on his penis. In her police interview, the stepdaughter said that ‘I don’t really remember much after that but I know that I had white stuff on my favourite jumper and had to [throw] it out’.

13. In a statement to police, the applicant’s former partner relayed the conversation she had with her daughter about nightmares her daughter had been having and whether the applicant had been in them:

Is [DMF] in it? Come on darling tell me, you can tell me.

No I can’t, no I can’t.

It’s okay, It’s okay. Has [he] done something to you has he touched you inappropriately?

Yes

Is this for real?

Yes

Has he put his penis or his finger in your vagina?

No

What has he done?

He made me touch him.

Where was it on the penis?

Yes

Anywhere else?

He put his penis on my mouth.

How many times did he do this?

Two that I can remember.

Where did it happen

….when you walked into the room..

I thought you were asleep

I wasn’t

14. In her police statement and in evidence provided at the court committal proceedings, the applicant’s former partner stated that one night when the applicant had got up to go to the toilet wearing his boxer shorts, she had seen him coming out of the children’s bedroom. When she queried why, he allegedly said that he had been saying goodnight to them. She gave evidence that she thought this strange because ‘he never says good night to the kids. It was in the middle of the night, I didn’t hear the kids and I could not think of a reason for him to go in there at that time of the night.’

15. When questioned about this, the applicant had allegedly said to his former partner, ‘You’re on medication, you’re depressed, it’s just your mind playing tricks on you.’

16. The stepson, who shared a bedroom with the stepdaughter, told the police that he hadn’t witnessed, heard or seen anything.

17. The applicant gave evidence at the trial. It would also appear that the Crown called, or proposed to call, the stepdaughter, the applicant’s former partner, the friend in whom she had allegedly confided and the stepdaughter’s school friend. Court notes show that the jury retired at 11am returning with a verdict of acquittal just over an hour later, at 12.05pm.

18. Without a trial transcript or the complainant giving evidence before us – and in circumstances where the applicant has been acquitted of the charges - it is not open to us to make a positive finding that any of the alleged conduct actually occurred. See BRL v Children’s Guardian [2016] NSWCATAD 27.

19. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Justice Harrison provided the following guidance to the Tribunal:

• The Tribunal should first consider whether (a) ’positive findings’ can be made as to any alleged act(s) of wrongdoing on the balance of probabilities; or (b) whether the Tribunal has ‘no hesitation in rejecting the allegation as groundless.’

• If no ‘positive finding’ can be made, unless the Tribunal can determine that the allegation is ‘groundless’, the Tribunal must consider the question of risk: whether on the evidence there is a risk of harm occurring (e.g. sexual abuse, etc.).

• even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance.

20. We note, however, that in Children’s Guardian v CKF [2017] NSWCS 893, Davies J found there to be no basis for any conclusion that an open finding or ‘lingering doubt or suspicion’ counts against the defendant. According to Davies J, it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

21. For the reasons given below, our decision in this matter does not, however, require us to resolve any difference between these approaches.

Do we have no hesitation in dismissing the charges as groundless or does a lingering doubt or suspicion remain?

22. Because of the absence of evidence – namely the trial transcript or, alternatively, the stepdaughter being made available for cross-examination - we cannot make a positive finding that the incidents alleged are true.

23. The same lack of evidence prevents us from reaching the conclusion that the allegations are groundless. BRL v Children’s Guardian [2016] NSWCATAD 27

24. This leads us to consider whether a ‘lingering doubt or suspicion remains’ in relation to the allegations.

25. It is not disputed that on the evidence before the Tribunal:

• the jury preferred the evidence of the applicant to that of the stepdaughter and the other Crown witnesses, or, at a minimum, found there existed a reasonable doubt;

• the jury quickly came to a verdict of acquittal;

• the allegations were made some years after the alleged events in circumstances where there was a suggestion that the stepdaughter may have been influenced by her mother’s questioning of her in relation to the allegations or by a desire to copy her school friend in making allegations;

• in relation to the first offence charged, there are inconsistencies in the Crown evidence, namely whether the applicant had been naked or wearing boxer shorts on the night the offence allegedly occurred;

• in relation to the first offence charged, issues of plausibility arise, namely that when a grown man was said to have placed his penis into the mouth of an eight or nine year old child, her reaction was to pretend to be asleep rather than to flinch, recoil or gag.

26. For the reasons listed above, the Tribunal is not satisfied that any such ‘lingering doubt or suspicion’ exists in relation to the alleged acts.

27. On the evidence before us we are, therefore, not prepared to make any adverse inferences against the applicant relating to the allegations.

Section 30(1) matters

28. In determining this application and considering the question of risk, the Tribunal must explicitly consider the factors set out in section 30(1) of the Act

29. .The evidence will be considered under each of the following subheadings.

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

30. The matter that caused a risk assessment to be undertaken and the refusal of the clearance was the fact that in 2004, the applicant was charged with the sexual and indecent assault of his former stepdaughter. The applicant has always denied the charges and was acquitted on both charges in 2006.

31. While the allegations were serious, for the reasons set out above, we have doubts about their veracity.

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

32. The incidents were alleged to have occurred more than twenty years ago. Since that time, the applicant has not been the subject of any other criminal allegations or complaints or disciplinary proceedings.

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

33. The applicant was approximately 35 years old at the time of the alleged offences.

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

34. The applicant’s former stepdaughter was eight or nine years old at the time of the alleged offences. At the time, she was living with her mother, her brother and the applicant and was dependent upon the applicant for aspects of her care and maintenance.

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

35. The applicant is approximately 24 years older than his former stepdaughter.

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

36. The applicant was her stepfather and knew she was a child.

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

37. The applicant is 54 years old.

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

38. The applicant has no criminal record. Since the allegations were made, the applicant has married and had children. He continues to practise as a health professional. Contained on file are numerous references attesting to the applicant’s good character. All of the referees declare that they have no concerns about leaving children in the applicant’s care.

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

39. In his report dated 10 October 2018, psychiatrist Dr Jeremy O’Dea:

• did not diagnose the applicant as suffering from a psychiatric illness or disorder in general or a psychosexual or paraphilic disorder in particular;

• did not diagnose the applicant as suffering from a paedophilic disorder, or consider him to have any specific or significant paedophilic tendencies;

• found that on the basis that the applicant was acquitted of the criminal charges laid against him and on the assumption that the alleged sexual activity did not take place, his risk to the safety of children would be considered no greater, or less, than the general adult male population;

• found that, if the allegations were accepted to be true, based on full forensic psychiatric risk assessment and risk management, and taking into consideration actuarial risk assessment tools (such as the STATIC 99-R), the applicant’s risk of engaging in further sex offending behaviours in the community in the long term would be considered relatively low, and able to be adequately managed, without placing the community at undue risk. Factors pointing to this risk being low in such circumstances include that the applicant is now in his fifties, has no general psychiatric or specific paraphilic disorder, is co-habiting in a long term marriage, has no other criminal charges or convictions, and the alleged victim was a step-daughter with whom he was living at the time.

Any order of a court or tribunal that is in force in relation to the person (s30(1)(i1)

40. Not applicable

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

41. The applicant has provided a statutory declaration in which he stated that he has never been the subject of any complaints, disciplinary proceedings or risk assessments in the course of his involvement with any community and/or voluntary organisations.

42. He confirmed he has been married for over fifteen years and that he and his wife have two children, neither of whom have been the subject of any report to the NSW Department of Family and Community Services or the equivalent in any other state of Australia.

43. He described his criminal trial as having been the result of being charged with ‘false, humiliating and disgusting allegations of sexual offences’ against his former stepdaughter.

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

44. No further information

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

45. It is the respondent’s view that the Tribunal should find that the applicant does not pose a risk to the safety of children.

Conclusion on section 30(1) matters

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

47. For the reasons set out above, we have grave doubts as to the veracity of the allegations of sexual and indecent assault made against the applicant and have given them no weight in determining his risk to the safety of children.

48. We accept the evidence of Dr O’Dea that even if he were to assume the applicant’s guilt, in light of the time that has elapsed and the applicant’s protective factors as outlined above, he would pose a relatively low risk to children. Assuming his innocence, the applicant would pose no greater risk to the safety of children than any adult in the general population.

49. There is a range of testimonial evidence before us that attests to the good character of the applicant and that his friends, family and professional colleagues would trust him to be unsupervised around children.

50. The applicant has no criminal record, no history of disciplinary proceedings and there is no evidence to suggest that he has been anything other than a caring and loving father to his own children.

51. On the basis of the evidence before us, we find that the applicant does not pose a real and appreciable risk to the safety of children.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant?

52. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 applies to this application. It provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that:

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

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

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

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

54. In order to properly consider this test, a “reasonable person” would need to know about the charges brought against the applicant and his subsequent acquittal at trial, in addition to the statement provided by the applicant, the references given in support of his application and the risk assessment provided by Dr O’Dea.

55. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant while he is engaged in child-related work. In this regard, the reasonable person would note that the applicant has no criminal record and that he was acquitted of the charges of sexual and indecent assault of his stepdaughter. The ‘reasonable person’ would give weight to the references written in favour of the applicant and the risk assessment provided by Dr O’Dea.

Public interest

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

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

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

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

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

57. On the evidence before us, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant.

Decision

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

Orders

1. The decision of the respondent dated 6 June 2018 to refuse the applicant’s working with children check clearance is set aside.

2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance

**********

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: 02 January 2019