DTW v Children's Guardian

[2020] NSWCATAD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DTW v Children’s Guardian [2020] NSWCATAD 146
Hearing dates:	30 January and 24 March 2020
Date of orders:	03 June 2020
Decision date:	03 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member R Royer, General Member
Decision:	(1)   The decision under review is affirmed. (2) With the exception of expert witnesses, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Catchwords:	ADMINISTRATIVE LAW- child welfare – refusal of application for Working With Children Check Clearance - where applicant charged with sexual offences against child but acquitted - whether alleged conduct established on balance of probabilities – whether circumstances of the alleged offences give rise to possibility of abuse - whether a real and appreciable risk is posed by the applicant to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Commission For Children and Young People v V [2002] NSWSC 949 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DTW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: K Dailly (Applicant) M Giacomo (Respondent)   Solicitors: Crawford and Duncan Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00097007
Publication restriction:	With the exception of expert witnesses, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. The applicant first applied for a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 (the CPWWC Act) on 11 December 2013. On 18 July 2017 the applicant’s clearance was made subject to an interim bar under s 17 of the Act by the respondent after it became aware of charges of indecent assault, assault and aggravated sexual intercourse laid against her in 2014 and 2016 where the victim was her son, at times when he was under 16 years of age. The applicant was tried in 2017 and acquitted of all charges.

2. A risk assessment was conducted of the applicant by the respondent under s 15 of the CPWWC Act in 2018.

3. On 7 March 2019 the Children’s Guardian refused the applicant’s application for a Working with Children Check clearance under s 18(2) of the CPWWC Act because she was satisfied that the applicant posed a real and appreciable risk to the safety of children.

4. The applicant seeks a review of that decision.

Legislative framework

5. The object of the CPWC Act is expressed in s 3:

“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 persons engaged in child-related work to have working with children check clearances.”

6. Section 4 provides:

“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.”

7. There is no definition of “child abuse” in the Act. An offence is created in s 227 of the Children and Young Persons (Care and Protection) Act 1998 which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a)   the physical injury or sexual abuse of a child or young person, or

(b)   a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c)   the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.”

8. This definition has been relied on by the Tribunal in previous decisions. I note that the Children’s Guardian Act 2019 commenced on 1 March 2020 but contains no definition of child abuse.

9. Section 5B provides:

“5B Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.”

10. Division 3 of Part 3 of the Act deals with risk assessments of applicants.

“14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

15 Assessment of applicants and holders

(1)   The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2)   The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3)   Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4)   In making an assessment, the Children’s Guardian may consider the following—

(a)   the seriousness of any matters that caused the assessment in relation to the person,

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

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

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

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

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

(g)   the person’s present age,

(h)   the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i)   the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.

(4A)   The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that—

(a)   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 any child-related work, and

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

(5)   The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.”

11. Section 18 provides:

“18 Determination of applications for clearances

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

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

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

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

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

12. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children. Section 5B provides that a reference to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

13. Section 30 provides:

“30 Determination of applications and other matters

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

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

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

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

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

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

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

(g)   the person’s present age,

(h)   the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

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

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

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.

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

(a)   a reasonable person would allow his or her child to have direct contact with the affected person that was not 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.

(2)   On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

(3)   (Repealed)”

14. Section 63 of the Administrative Decisions Review Act 1997 provides:

“63 Determination of administrative review by Tribunal

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

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

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

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

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

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

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

15. The proceedings are in the nature of a merits review and there is no presumption that the applicant poses a risk to the safety of children. It has been held that neither party bears an onus of proof in relation to the application (BJB v The Children’s Guardian (No. 2) [2014] NSWCATAD 164 at [32]). The applicant however has a practical onus of identifying material which will support her application.

Evidence

16. The evidence before the Tribunal comprised:

1. Application for Administrative Review filed 26 March 2019

2. Notice of Alibi under s 150 Criminal Procedure Act in proceedings DPP v [DTW]

3. Psychological assessment report by Laura Durkin, Clinical and Forensic Psychologist, dated 21 October 2019.

4. Material provided by the applicant to the Children’s Guardian as part of her application, including a statutory declaration dated 4 June 2018, and character references.

5. Documents filed by the respondent pursuant to s 58 of the Administrative Decisions Review Act 1997, 8 May 2019, which included the transcript of the evidence in the trial.

6. Further documents filed by the respondent 2 August 2019

7. Further documents filed by the respondent on 12 September 2019

8. Respondent’s additional documents filed 14 November 2019

9. Oral evidence of the applicant.

Issues for determination

17. The applicant was acquitted in 2017 following a trial in the District Court of a number of serious offences against her son. She maintains her innocence and says that her son later admitted that the allegations he made against her were false.

18. In determining whether the applicant poses a risk to the safety of children, in a context where the welfare of the child is paramount, the Tribunal “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” (BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33]).

19. BKE followed the decision of the High Court in M v M [1988] HCA 68; 166 CLR 69. In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at 70).The High Court held 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 76). The Court also stated (at 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.”

20. It follows that even if the Tribunal does not find that any of the offences for which the applicant was tried are made out on the civil standard of proof, this does not mean that the applicant cannot pose a risk to the safety of children.

21. The primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal in relation to the refusal of a Working with Children Check clearance of the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, per Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

22. Because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act 1995 do not apply and hearsay evidence is permissible (section 38 of the Civil and Administrative Tribunal Act; also LA v Commissioner for Children and Young People [2012] NSWSC 1454). The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances giving rise to the charges (s 63 of the Administrative Decisions Review Act).

Factual background

23. The following facts are not in dispute.

24. The applicant separated from her husband in 2001 and they were divorced in 2003. Their son, who we will refer to as M, had been born in 2000. He was later diagnosed with Asperger’s Syndrome (also known as autism spectrum disorder or ASD), Attention Deficit Disorder and Oppositional Defiant Disorder (ODD).

25. The applicant’s ex-husband, whom we will refer to as ATW, was charged with assault following a domestic incident in 2002.

26. Family and Community Services (FACS) received reports about M, and the applicant was in communication with FACS regarding the care of her son. In 2004 M began seeing a psychologist. Also in 2004 the Family Court made consent orders which allowed M to spend unsupervised time with his father. The psychologist believed that M was possibly traumatised by witnessing violence between his parents. The applicant undertook parenting courses and over time received some support from counsellors, parenting programs, relatives and FACS in caring for M and managing his behaviour.

27. In around June 2006 DTW agreed with her ex-husband ATW that M would stay with his father and spend alternate weekends with her.

28. In November 2007 M ran out on a busy road and said he had done it to kill himself because he was sad. He was seen by Child Psychiatrist Dr Nigel Orr shortly afterwards, who diagnosed him with complex PTSD.

29. In 2007-8 according to their assessments, FACS regarded the potential for harm to M as high if he continued residing with his father, because he was in the care of his paternal grandmother before and after school, who had threatened him with foster care. FACS considered that his father and grandmother both used inappropriate physical discipline and his father was not willing to listen to advice from the school or psychologist. M had reported that his father hit him with a belt multiple times and his paternal grandmother hit him up to 20 times at once. His grandmother was witnessed pinching and dragging him at school.

30. FACS commenced care proceedings relating to M and in 2008 the Children’s Court ordered that the applicant have sole parental custody of M until he was 18 years old. The Court accepted undertakings from DTW and ATW that they would not use any form of physical discipline on M and would not use any implements to threaten him as a form of discipline; they would not expose M to domestic violence and not use verbal or emotional abuse.

31. Notwithstanding this court order, M came to live with his father ATW and his father’s fiancé TAW in 2012-3 by agreement with the applicant. The care order was rescinded in 2014 when DTW was charged with sexual offences against M.

The criminal charges

32. The following charges and particulars were laid against DTW and proceeded to trial.

Count 1: Indecent assault person under 16 years

That between 29 July 2010 and 28 July 2011, when M was 10 years old and living with the applicant, the applicant rubbed M’s penis over his under pants.

Count 2: Assault occasioning actual bodily harm

Between 1 September 2013 and 11 April 2014, the applicant became angry with M and struck him with a belt.

Count 3: Indecent assault person under 16 years

Count 4: Aggravated sexual intercourse person between 10-14 years

Count 5: Aggravated sexual intercourse person between 10-14 years

Sometime between 13 January 2014 and 2 May 2014 (amended at the trial to 29 January 2014), when M was staying at DTW’s home, the applicant:

1. Came into M’s room and started touching him;

2. Told him to undress and after he removed his underpants, then touched his penis for approximately 5 minutes and then sucked his penis for approximately 5 minutes;

3. Mounted M and inserted his penis into her vagina and had sexual intercourse with him for 10 -15 minutes;

4. Lay on her back on the bed and told M to “put it in”. M complied and had sexual intercourse with the applicant for 10-15 minutes. The applicant then kneeled on the bed on all fours and with M behind her, had sexual intercourse for approximately 20 minutes. Eventually M ejaculated within the applicant.

Count 6: Indecent assault person under 16 years

Count 7: Aggravated sexual intercourse person between 10 and 14 years

Count 8: Aggravated sexual intercourse person between 10 and 14 years

1. The following day the applicant came into M’s room and told him to get undressed. The applicant stroked    M’s penis for approximately 5 minutes.

2. The accused then sucked M’s penis for approximately 5 minutes.

3. The accused then undressed and straddled M and proceeded to have sexual intercourse with him. This continued for about 20 minutes until they were interrupted by a knock on the door.

Count 9: Indecent assault person under 16 years

Count 10: Indecent assault person under 16 years

1. Between 21 April 2014 and 25 April 2014 on a weekday evening during the school holidays, when M was staying at DTW’s home, he went to bed on a mattress in the loungeroom. The applicant joined him, lay down and took his underpants off and then grabbed and stroked his penis.

2. M said “Can you please stop Mum?”

3. The applicant removed her pajama top and placed M’s hands on her breasts and made him squeeze her breasts 5 times.

33. The trial took place in 2017. M gave evidence at the trial. DTW did not give evidence.

34. The jury found the applicant not guilty of all charges.

The respondent’s evidence

35. The respondent relied on witness evidence given to police and at the trial by the applicant’s ex-husband , ATW and his fiancé, TAW.

36. ATW told police in 2014 that he found that his son had been viewing rape pornography and mother and son pornography on his laptop computer. He told his son this was wrong and put controls in place. At this time M was 13 years old.

37. ATW also told police that about seven months after he found the pornography, ATW and TAW spoke to M about the pornography and M said “Mum tried to make me watch gay porn”. When ATW raised this with DTW he said that she did not deny it. According to TAW M said that his mother put controls on the computer at her house but gave him the password later.

38. When interviewed by police, M said that his mother made him watch gay pornography when she found him viewing pornography on the internet after warning him not to do that. He said “I think she was trying to scar[e] me not to watch porno, porn, because the stuff I saw was just disgusting.” He said he was around 12 or 13 at the time. He said they watched it for about half an hour and it involved anal sex between men.

39. According to ATW and TAW, M demonstrated sexualised behaviour. He walked around the house naked and showed his penis to the other children in the house. He spoke about masturbation openly. ATW said that when he warned DTW about this behaviour she said “You’ve got your rules at your place and I’ve got my rules at my place.”

40. M was frequently in trouble at school, engaged in violent behaviour and threatened his teachers. However he appeared to benefit from counselling.

41. In 2014 M disclosed to ATW and TAW that his mother had been touching his penis while he was asleep. They did not do anything for some time as they were unsure whether to believe it. Some weeks later M disclosed the same information to his teachers and the matter was reported to the police.

42. TAW told police that when he was about 12 years old M used to read Zoo magazines which his mother bought for him. This is a magazine with images of scantily clad women and sexual content. When TAW spoke to DTW about this and said that he was too young for it, she said that DTW said “I think it’s good that he can see pictures of women to learn about women and sex.” TAW said that she also raised with DTW that M liked to walk around the house naked and DTW said “Yeah, he does like doing that” and what happened at her house was her business.

43. Another time DTW rang TAW and told her that M had found her vibrator down the side of her lounge. Another time she told TAW that she and ATW needed to “give him a place where he can have a wank.”

44. TAW also said that in May 2013 while they were having discussions about M’s problem with pornography, DTW said “I think ATW needs to watch one of the incestuous porn movies with M and explain things to him.” TAW said that would not be happening and DTW asked why not. TAW said because it was wrong and she believed that it was illegal.

45. TAW said that she observed M having nightmares in which he would say “Stop it mum, I don’t like it. Stop Mum”.

46. ATW told police that he saw a rectangular bruise on M’s lower body which resembled a belt buckle in 2014. M said that his mother had hit him. ATW also said that M had a tendency to lie but that his accounts of the assaults were consistent.

47. In 2016 ATW reported to police that M had disclosed to them that he had had sexual intercourse with his mother. In February 2016 M disclosed to police that the applicant had 2 episodes of penetrative sex with him.

48. The applicant was first interviewed by police on 30 June 2014. During this interview she said that she had encouraged her son to have an open relationship with her so that “he’d tell me if something excited him on the tele and he got a stiffy.”

49. She said that M was more comfortable sometimes not wearing clothing including underwear and this was a feature of his ASD. He would sometimes expose himself to her deliberately and thought it was funny. He also masturbated while watching television in her presence. She said that she had told him when he was in Year 4 or 5 at school that he should masturbate in private. She found out about a year to a year and a half previously that M was accessing internet porn, including mother-son and rape pornography. She raised it with M and said “ if it starts getting too regular, I mean OK have a look at it once… but if it keeps happening ongoing and if it’s interfering with any part of his life then it would have to be stopped..” She said she stopped his access to pornography on the internet about a month later after speaking to his father.

The applicant’s evidence

50. The applicant relied on a set of text messages which she said she had received via Viber from her son. A printout of the texts was in evidence. This showed a text from a number labelled as “Mike” on 24 November 2018 which read:

“BTW dad put me up to it”

The applicant replied “Put you up to what?”

The reply text read: “What do you think”.

Another text dated 10 December 2018 reads: “He set me up to get you in the shit cause he was sad and [TAW] was and still is a controlling bitch.”

51. The applicant said that this meant that her son was admitting that he had lied about the matters at trial. She maintained the evidence she gave at trial. She believed that her ex-husband and his fiancé had encouraged M to make false allegations against her because her ex-husband blamed her for his health conditions and did not want her to be close to M.

52. Additionally or in the alternative it was submitted that M resented his mother because she gave up on him and his evidence at trial was that he blamed her for sending him to his father’s home in 2006 and again in 2013, saying “she always had my back, and then she just gets rid of me.” M also admitted in his evidence that he had difficulty with women in a position of authority over him. M denied that he had made comments to TAW’s children concerning masturbation or showing off his penis, but there was evidence of similar conduct from several persons.

53. DTW said she felt that M’s behaviour deteriorated when he stayed with his father at first. She agreed that he had possibly suffered trauma from witnessing not only domestic violence when she and ATW were living together but also violence at ATW’s home. He was diagnosed with complex PTSD in November 2007.

54. DTW agreed that she began buying Zoo magazine while M was still in primary school and would read it with him for “sexual education”. DTW said it was her husband who had first purchased Zoo magazine for M. It was in a showbag from the Royal Easter Show. She said that M was learning about sex at school and had a lot of questions which she did not have answers for. She said she encouraged him to be open about what he learned at school. She bought him a magazine once every two weeks as “a reference” to supplement his sex education. They would look at them together.

55. She denied that she said to TAW that she thought it was good M could see pictures of women to learn about sex but she agreed that was her belief at the time. She denied speaking to TAW about the magazines. She said that ATW told her to stop buying the magazines because he was concerned. She denied that she had told M it was all right to tell her if he got aroused by something he saw on television; she said that she encouraged him to be open about what he learned at school.

56. She agreed that M had found her vibrator in the house on two occasions.

57. She denied assaulting M but said she occasionally lost her temper with him when she called him names and slapped him on the leg.

58. She said that M expressed a desire to live with his father in 2012 and it was his choice to do so. She said he had gone through years of therapy, and that he wanted to live there. She denied that he was still struggling with any trauma at that time. She denied that she was aware at the time that ATW’s previous violence or his mother’s violence was a cause of the trauma.

59. She said that M started looking at pornography in about 2013 and some of it was mother – son pornography. She had a conversation about it with him and believed she may have said it was OK to look at it once but not if it became a regular occurrence. She became concerned when he started looking at pornography featuring sibling rape and suggested they watch a pornographic movie but M said you did not watch that with your mother. She said she did this “for shock value”.

60. She denied having a conversation with TAW about the pornography or that he needed somewhere to “wank”. She denied giving M the password to the computer, and denied forcing him to watch a male gay pornographic video. However she agreed that she said that ATW should watch a movie that M had watched and talk to him about it. Again she said this was suggested for “shock value”.

61. She said she believed that ATW had put M up to making the allegations because he wanted full custody for M.

62. The applicant tendered a report by Clinical and Forensic Psychologist Ms Laura Durkin. DTW was interviewed once in person and once by telephone by Ms Durkin. Ms Durkin’s opinion was that:

1. DTW had some symptoms of Major Depressive Disorder;

2. Her motivation for treatment was low and she saw little need to change her behaviour;

3. She had a clear and comprehensive understanding of child protection issues, and the damage that could be caused by failing to protect children;

4. DTW’s performance on the Personality Assessment Inventory indicated that interpersonal relationships were not a priority, that she had a withdrawn interpersonal style, was quick to believe others wished to undermine or mistreat her and was defensive, but did not raise any significant issues;

5. A sex offender risk assessment was not appropriate as there were none for females; it was not recommended to use the male assessments on females and DTW was not convicted;

6. The recidivism rates for female sexual offenders was typically considerably lower than for males;

7. Depression and interpersonal issues were risk factors but these were managed now;

8. She did not endorse any deviant sexual interests and by her account had not engaged in any problematic or abusive sexual behaviours;

9. She was a generally stable and well-adjusted woman who had experienced significant stress but maintained an adequate level of functioning and sought help when necessary.

10. She did not pose an appreciable risk to the safety or wellbeing of children even if it is assumed that the alleged offending did occur.

63. Counsel for the respondent submitted that the Tribunal could not put any weight on Ms Durkin’s opinion as she had not received from the applicant’s legal representatives, and therefore had not read, the evidence of key persons at trial, the police statements, M’s ERISP interview, and much of the records made by FACS staff concerning the family and the documentary evidence relating to FACS’ involvement with M.

64. Counsel for the applicant submitted that the applicant was willing for the hearing to proceed without allowing an adjournment for this to be addressed. As the hearing had already been adjourned once to allow material to be provided to Ms Durkin, we determined that the hearing should not be adjourned a second time and would proceed on the basis of the evidence already before the Tribunal.

65. The consequence is that Ms Durkin did not have the opportunity to consider, in particular:

1. The opinions and evidence of Dr Pullman or Dr O’Dea

2. The FACS material relating to the 2016 allegations

3. M’s evidence

4. The evidence of ATW, TAW and DTW relating to M’s access to Zoo magazine, internet pornography and M’s behavioural issues.

66. Ms Durkin herself notes in her report that decisions about risk assessment are best made with multiple sources of data. While we have noted the factors above, we feel that her report is of limited utility as an overall risk assessment.

67. The applicant maintained that alibi evidence produced by her at trial proved that the aggravated sexual intercourse could not have occurred when M said it occurred and his evidence was unreliable.

68. We understand the applicant’s submission with regard to this has two aspects:

1. The Tribunal should not in the face of this evidence find on the balance of probabilities that any of the conduct in the charges laid did in fact occur;

2. M is an unreliable witness and his evidence in relation to this and other matters should not be believed.

Consideration

69. In Commission For Children and Young People v V [2002] NSWSC 949 Young CJ in Equity considered s 9(8) of the Child Protection (Prohibited Employment) Act 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He stated, regarding the meaning of “risk”:

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children’”.(at [42])

70. In determining whether the applicant poses a risk to the safety of children, the first issue is whether the Tribunal is satisfied that the allegations of abuse made by M of which the applicant was acquitted are made out in these proceedings to the civil standard or the balance of probabilities. That is, whether it is more probable than not that any or all of those events occurred.

71. Count 1 relates to an allegation that DTW touched M’s penis through his underpants. According to a statement given by ATW to police on 28 May 2014, M first disclosed this to him in early 2014 saying DTW touched his penis while he was asleep. Michael then repeated this in a meeting at his school where his father’s fiancé was present.

72. Count 2 is an assault with a belt by DTW in 2014. ATW gave evidence that he had seen an injury on M’s right side and so did his fiancé, although their descriptions of the injury were different.

73. With counts 3 to 8, M’s evidence was that these two acts occurred on two consecutive days during the last week or two of the school holidays after he came back from a trip to America with his mother on 12 January. The first assault was in the afternoon after he had been swimming at his mother’s house. The second was the next day in the early afternoon in the loungeroom.

74. The defence relied on documentary evidence to show that DTW worked night shifts from 14 January to 20 January inclusive and afternoon shifts (2 pm to 10 pm) from 24 to 28 January inclusive. There was also documentary and witness evidence that M was holidaying with his father from 16 January to 29 January and that he stayed with his mother one night before commencing school on 30 January. She did not have custody of M again until 7 February 2014. On the basis of this evidence it was submitted that the alleged acts did not occur.

75. At the time of the trial M was 17 years of age and he maintained repeatedly that he was telling the truth about his mother’s conduct. He said that his mother drank bourbon because she was lonely and the incidents of sexual abuse occurred when she was drunk.

76. The allegations were “substantiated” by Family and Community Services. This is evidence that Family and Community Services considered the allegations were established to the civil standard of proof. However that opinion did not take into account the alibi evidence which was introduced at the trial.

77. Two forensic psychiatrists gave evidence at the trial – Dr Susan Pullman and Dr Jeremy O’Dea. Dr Pullman’s opinion was that M’s description of grooming behaviours allegedly used by the applicant were consistent with behaviours used to normalise sexual activities between victim and offender. There was no evidence inconsistent with the alleged offence. M’s sexualised behaviour was very concerning especially when taken together with the viewing of pornography.

78. She said that it was inappropriate and abusive for a mother to suggest to her son that they watch pornographic videos together for the purpose of “shock value” or to challenge his behaviours. This behaviour would require mandatory reporting. Buying and viewing magazines such as Zoo with a boy of 10 years old was regarded as grooming behaviour.

79. Dr O’Dea gave evidence at the trial that buying Zoo magazine for a boy in his early teens or younger was inappropriate, should be discouraged and with the applicant’s approach to internet pornography could be conceptualised as grooming behaviour, but alternatively could be seen as inappropriate responses of an inexperienced single mother. M’s nightmares and behavioural disturbances could be related to his history of PTSD and to being the victim of sexual abuse, but his inappropriate behaviour at home might be related to his autism spectrum disorder (ASD) condition. Being allowed to look at pornography on the internet at a young age could lead to compulsive pornography use by someone with ASD. Grooming behaviour included showing a child pornography and sexual content to make them more receptive to sexual content.

70. When the question is whether an allegation is established to the civil standard the seriousness of the allegation, its unlikelihood and the seriousness of the consequences of a finding are considerations which affect the Tribunal’s decision and a finding should not be lightly made (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336).

71. As stated by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171:

‘[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove…

In determining whether the grounds for disciplinary action have been established, the Tribunal needs to balance the strength of the evidence according to the nature of the allegation. Where there is an allegation of criminal conduct, such as an offence of improper conduct pursuant to s 51(1)(a) of the Act, the strength of the evidence must therefore be high enough to establish that fact.’”

82. Given the alibi evidence, we cannot be reasonably satisfied that the acts contained in Counts 3 to 8 occurred. We make a similar finding with regard to Count 1, given the passage of time and the inexactitude of the evidence on this matter. With regard to Count 2, however, the facts are more exact, there was evidence of physical discipline and there is evidence from M, his father and TAW that they saw the injury, and therefore we find that this allegation is established on the balance of probabilities.

83. The next question is whether we are satisfied that the surrounding circumstances of the alleged offences lead us to consider that there is a risk to a child (BKE v Office of the Children’s Guardian at [33]).

84. Based on the evidence referred to, we are reasonably satisfied that DTW engaged in behaviour with M which posed a risk to him, given their relationship, his medical condition and his age. In particular:

1. DTW bought multiple copies of Zoo magazine while M was still in primary school and read it with him as a way of learning about sex.

2. DTW told M it was all right to tell her if he got aroused by something he saw on television.

3. DTW left her vibrator where M could find it in the house.

4. She failed to take appropriate action or seek guidance about M’s sexualised behaviour such as not wearing clothing around the house, exposing himself to her deliberately and masturbating in her presence.

5. She made him watch a pornographic movie which involved anal sex between men.

6. When she found him watching internet porn at the age of about 13, she failed to take appropriate action or seek guidance but only became concerned when he started looking at pornography featuring sibling rape. She then suggested they watch a pornographic movie together which at his age was illegal. She was lax about controlling his access to pornography and eventually gave him the password without ensuring he could not access that material.

85. In addition, the circumstances of a teenage boy making allegations of sexual abuse against his mother which are extremely graphic and specific, raise concerns that even if the alleged offences did not occur, there was a possibility of abusive behaviour. That possibility, given the paramountcy of the interests of the child under the legislation, requires us to consider whether that also presents a risk to children.

The s 30 matters which must be taken into account

86. In an application for an order the Tribunal must take into account the matters under s 30.

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

87. The matters which gave rise to the risk assessment are very serious multiple allegations of child abuse, including sexual intercourse and assault.

88. The other matters which we have found to be established on the balance of probabilities include acts which constitute sexual misconduct including making or allowing a child to watch pornography and read or view sexually suggestive material.

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

89. The matters allegedly occurred between 2010 and 2014.

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

90. The applicant was 43 to 46 years of age.

(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

91. M was between 10 and 13 years of age. M was vulnerable because he was the applicant’s son, was alone with her when residing at her home and also had the conditions of ASD, PTSD, and ODD which made him more vulnerable and susceptible, particularly to exposure to pornography.

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

92. The age difference was 32 years.

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

93. The applicant knew that M was a child.

(g) the person’s present age

94. The applicant is now 52 years of age.

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

95. The applicant has no criminal record and no ADVO history as a defendant, other than the orders taken out at the time she was charged for the offences of which she was later found not guilty.

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

96. There have been no other complaints of similar conduct by the applicant. The applicant has had very limited contact with her son since the trial. The son is now an adult. There is evidence from her employer that she previously interacted with children without incident.

97. The applicant’s risk to children was assessed by Ms Laura Durkin (Clinical and Forensic Psychologist in a report dated 30 October 2019. For the reasons stated above, Ms Durkin’s assessment of the risk posed by the applicant is not given much weight by the Tribunal. We note that the rate of recidivism in female offenders is lower than that of males. However we also note that the applicant was assessed as having little motivation for treatment or to change her behaviour.

98. We were concerned by some of the applicant’s evidence regarding the established conduct. It did not appear that she fully comprehended the potential consequences and harm from her actions. We do not consider it could only be explained by being an inexperienced mother, as she had access to expert opinions and assistance from FACS and relatives.

99. The impact on children of such behaviour should it be repeated would be serious, and some of the conduct which should be regarded as abusive in nature.

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

100. There are no such orders.

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

101. The applicant provided a number of references from family and employer. The reference from her employer stated that she had observed DTW engage with children in a custodial setting. She said that DTW was “thoughtful and considerate to the children”, that DTW had never demonstrated inappropriate behaviour to children and she had no concerns for her conduct with children.

102. DTW has also relied on the text messages referred to above. This evidence is equivocal as there is no evidence (apart from the applicant’s assertion) that they came from M or what they refer to. While they raise a doubt, we do not consider that the texts are clear evidence that M withdrew all his allegations against DTW.

103. Ms Durkin’s report is dealt with above.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

104. There is no such information.

(k) any other matters that the Children’s Guardian considers necessary.

105. There is no other information.

Conclusion

106. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. In addition to the matters above, we consider that the circumstances around the allegations made against the applicant including the sexualised behaviour of M and the making of disturbing and specific allegations; the other conduct which we have found to be established, including purchasing magazines with sexual content, conduct relating to pornography, and the assault; and the lack of awareness or understanding of the severity of the consequences of these actions, justify a finding by the Tribunal that the applicant does pose a real and appreciable risk to children. While the current opportunities for realising such a risk may be limited, if the application were granted the applicant would be able to work with children in any situation.

107. It follows, although it is not strictly necessary to state, that we are not satisfied 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 any child-related work, and it is not in the public interest to make the determination.

108. The correct and preferable decision is to affirm the decision of the Children’s Guardian to refuse the applicant’s application.

Order

1. The decision under review is affirmed.

2. With the exception of expert witnesses, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

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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: 03 June 2020