DVR v Children's Guardian - [2023] NSWCATAD 240

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DVR v Children’s Guardian [2023] NSWCATAD 240
Hearing dates: 21 April 2023; Further submissions filed by 30 May 2023
Date of orders: 5 September 2023
Decision date: 05 September 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy (Senior Member)
Prof J Goodman-Delahunty (General Member)
Decision:
1.   The non-publication orders made on 6 June 2019 and 30 August 2022 are vacated.
2.   The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the    applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or alleged victim of the applicant, is prohibited.
3.   Parties have liberty to apply to vary Order 2 within 14 days of the date of these orders.
4.   The decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance is affirmed.

Catchwords:
CHILD PROTECTION – Refusal of application for working with children check clearance – Whether applicant poses a risk to the safety of children – Whether there is a possibility that applicant engaged in sexual conduct with children as alleged

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Cases Cited:
Children’s Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v CF1 [2020] NSWSC 1673
Children's Guardian v CXZ [2019] NSWSC 1083
CPO v Children’s Guardian [2017] NSWCATAD 149
CVE v Children’s Guardian (No. 2) [2017] NSWCATAD 371
CXZ v Children’s Guardian [2020] NSWCA 338
Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518
Office of the Children’s Guardian v DVR [2022] NSWSC 1036

Texts Cited:
Nil

Category: Principal judgment
Parties: DVR (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Wilson (Applicant)
M Higgins (Respondent)
Solicitors:
Aubrey Brown Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2019/00138768
Publication restriction: The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or alleged victim of the applicant, is prohibited.

REASONS FOR DECISION

The applicant sought review of a decision of the Children’s Guardian to refuse his application for a working with children check clearance.
The applicant was charged with sexually abusing his stepdaughter when she was between the ages of thirteen and fifteen and found not guilty. In a separate incident, a teenage girl alleged that the applicant had engaged in sexual activity with her, but did not see herself as a victim.
We have found that there is a significant possibility that the allegations made by the stepdaughter and the teenage girl are true. We have concluded, primarily for that reason, that the applicant poses a real and appreciable risk to the safety of children. Accordingly, we have decided to affirm the decision of the Children’s Guardian to refuse his application for a working with children check clearance.

Factual background

The applicant was, at relevant times, a police officer in the New South Wales Police Force.
In about 2000, the applicant started cohabiting with a woman he later married (the mother), her daughter (the stepdaughter) and the couple’s other children. The stepdaughter was about eight at the time.
It was alleged that in 2001 and 2002, the applicant had sexually assaulted two different female children under the age of ten years. Those allegations were “not sustained” by the Children’s Guardian. The children, who were adults when the matter was investigated in 2016, declined to provide any information.
In about 2005, when the stepdaughter was about thirteen, she told a friend (the friend) that the applicant had sexually assaulted her. The friend told the friend’s mother, who spoke to the mother about this (at least to some extent, the amount of detail provided to the mother is not clear).
In early 2006, the mother was interviewed by the Department of Family and Community Services. During the interview, the mother indicated that her relationship with the applicant was bad and that she was going to seek a divorce. She doubted whether the applicant had sexually assaulted the stepdaughter.
The stepdaughter was also interviewed by Family and Community Services at about this time. She told the case worker she hated talking about “it” and explained she meant she hated talking about her stepfather massaging her. She disclosed to the case worker that her stepfather massaged her all over her body, but did not say he touched her inappropriately. She said it had been like that since January 2005, when they moved house. Towards the end of the interview, the stepdaughter said: “If you try to take me away from my mum I will try to kill myself.” The case worker noted that the stepdaughter’s fear of being taken away from her mother may have prevented her from a complete disclosure.
The stepdaughter made a disclosure to a school counsellor in 2007 (when she was about fifteen) that the applicant had sexually assaulted her. She told the counsellor that it happened when she was sick with the flu and her stepfather said he had to check her glands in her vagina to see if they were inflamed. The stepdaughter disclosed to the counsellor that he looked at her vagina and touched her inappropriately. She said that he had on various occasions engaged in digital vaginal intercourse with her during a massage, rubbed her breasts, rubbed the outside of her vagina and rubbed her naked bottom.
The counsellor notified the Department of Community Services. The Department’s file notes from September 2007 indicate that the stepdaughter was living with the mother and the applicant at that time and that the stepdaughter wished to move out of home. The file note also recorded that the stepdaughter had disclosed to the counsellor that the applicant was continuing to sexually abuse her and had been doing so since she was six years old. The stepdaughter had said that the applicant told her he was going to stop abusing her because he knew that her boyfriend, who was in gaol, knew people who could harm him.
A case worker from Community Services then called the stepdaughter. The stepdaughter told the case worker that she had resided with her natural father for the past year as a result of the abuse by the stepfather. The record of the conversation indicates that the stepdaughter was reluctant to disclose any information about the alleged abuse, but that she said she had been sexually abused and that the applicant would “touch her everywhere” and that once he had touched her vagina. The stepdaughter said that she did not want any investigation into the matter as it was in the past now and she had got over it. She also said she did not want her mother to know of the report as she would “go nuts.”
The Joint Investigation Response Team (JIRT) contacted the stepdaughter but she declined to speak with police about the incidents. She told the police that since her relationship with her boyfriend had developed, the applicant had stopped assaulting her. She was also living with her natural father at the time JIRT contacted her. The stepdaughter signed a discontinuance statement and refused to have the matter investigated.
In late 2007, the applicant searched the Computer Operational Police System (COPS) using the stepdaughter’s name.
In late 2008, the stepdaughter informed a counsellor that the applicant had physically and sexually assaulted her from the age of seven years “until last year.” In a statement made in 2015, the stepdaughter stated that she was honest and truthful with the counsellor, but did not remember this conversation, and did not have a clear memory of the applicant physically and sexually assaulting her since the age of seven.
A Community Services report from 2008 reports another conversation with the stepdaughter. The stepdaughter reported that she was very scared of the applicant and is terrified that if her real father found out what the applicant did her father would kill the applicant and would have to go to jail. She said that is why she signed the no action statement. The report described the stepdaughter as “highly distressed.” She reported that she had started to use ecstasy and pain killers to deal with her distress. She also reported that she had contemplated suicide. The record indicates that she became pregnant at 15 or 16 but the baby died in a car accident when she was five and a half months pregnant.
In 2009, the stepdaughter told a counsellor that from the age of seven years “until last year,” the applicant physically and sexually assaulted her. In late 2008 and early 2009, the stepdaughter told the same counsellor that the applicant had sexual intercourse with her and described it as a “full rape” and also said that the applicant had used a condom which is why she could not get a “rape kit” done. In the statement made in 2015, referred to above, the stepdaughter stated that she could not recall saying any of those words to the counsellor, and could not recall a sexual intercourse rape, but that she would have been honest with the counsellor.
In 2010 (when she was about eighteen), the stepdaughter told her boyfriend at the time that the applicant had tried to “touch her up” and that he had “played with her” when she was about twelve.
In April 2014, the applicant responded to a call in his capacity as police officer to attend a surf club car park. A fourteen-year-old girl (the teenage girl) was at the surf club. She was partially dressed and intoxicated. The applicant said he would drive the teenage girl home. The teenage girl got into the applicant’s police vehicle. There was no other officer in the vehicle. The applicant dropped the teenage girl home, but did not go to the door to check that she was safe. He said he saw an adult come to the door.
The following day the teenage girl reported to police that she had received cunnilingus from a police officer.
When the teenage girl was interviewed two days later by police, she told them that she engaged in sexual activities with a police officer which involved him digitally penetrating her and engaging in cunnilingus. She said that the police officer gave her his first name, which was different from that of the applicant.
The applicant was interviewed by police about the allegations made by the teenage girl. He said that the teenage girl gave him a false name, date of birth and address. She later gave him her correct name and address. He said that the teenage girl commenced making suggestive comments and masturbating whilst he was driving her home and that she tried to touch his groin. He denied her allegations.
In 2014, when the stepdaughter was about 22, she told the police that the applicant had assaulted her in a sexual way and pushed her up against the wall. She said that the police had previously made her sign a statement saying she did not want to go ahead with having the applicant charged.
In 2014, the stepdaughter’s friend (the friend) gave a statement to police in which she said that the stepdaughter had told her when she was fourteen that the applicant was molesting her, that he was watching her have showers and that he massaged her and touched her inappropriately when massaging her, putting his fingers in her vagina.
In July 2015, the applicant was charged with sexually assaulting his stepdaughter on five occasions between 2005 and 2007, when the stepdaughter was aged between 13 and 15 years.
The applicant stopped working as a police officer in 2015 and was diagnosed with post-traumatic stress disorder.
In 2017, the applicant’s criminal trial was held. The stepdaughter gave evidence. When asked about when the sexual assaults occurred she said she could not “be exact how many times or dates but it did happen.” She said it always happened when she was sick and when nobody else was home. She described the assaults which she said were “always the same thing,” being massaged, including massaging her breasts and vagina, saying she had glands which he needed to check.
The stepdaughter gave evidence that she had told the friend about the assaults at the time, the friend had told the friend’s mother and the friend’s mother had told the stepdaughter’s mother. She also gave evidence that the police told her she had no case and made her sign a document saying she would never take anything further.
In the course of giving evidence, the stepdaughter stated that the applicant had thrown her across the driveway when she was about sixteen. Her evidence was that, after that incident, she went to live with her boyfriend’s family. Under cross examination, she told the court that the applicant “grabbed me by my arm and hair and threw me out the front door and across the driveway and then threw all my bags at me at the same time.” She stated that she was terrified of him.
The applicant’s counsel put to her that she had described the incident to the police in 2014 and had said that the applicant had thrown her against a wall in the house but did not mention the driveway and that this happened when she was about 19 or 20. The stepdaughter denied inventing the incident and repeated that she did not remember dates. She maintained when questioned that the applicant had grabbed her hair and had also grabbed her arm.
The stepdaughter said in cross examination that the only sexual assaults she remembered had occurred at a particular house they had lived in. She said they occurred in the bathroom and bedroom. The stepdaughter also gave evidence of having regular breakdowns, but did not know the dates on which they had occurred. When cross examined about this, she stated: “I have no idea of dates.” She also said in cross examination that she was in high school at the time the assaults occurred, probably Year 7 or Year 8.
The stepdaughter gave evidence that she left school at the end of Year 9 or beginning of Year 10, at which time she was “off the rails completely.” She explained that she was taking cannabis and ecstasy at the time, as well as consuming alcohol. She said she had been off the rails from the start of Year 7 onwards, “trying to escape reality.”
The stepdaughter was repeatedly questioned whilst under cross examination about her inability to recall dates, which she acknowledged. She denied lying about the sexual assault allegations.
The stepdaughter was asked about signing a statement saying she did not want the matter to be investigated and maintained that she was told to sign it “because they told me I have no case.”
The stepdaughter was questioned about the inconsistencies between her statement in 2007 that the applicant had abused her between the ages of six and twelve and her position at the time of trial that she did not remember anything before living in a particular house (which she had lived in as a teenager). She maintained that she could not remember, but that she had not made up anything in 2007. The stepdaughter was also cross examined about the inconsistency between her statement to a counsellor in 2008 that the applicant had raped her and her position at trial that she could not remember that. She denied lying and said she could not remember being raped.
On the following morning, whilst the stepdaughter was still under cross examination but in the absence of the jury, the judge remarked that the stepdaughter was in a state of visible agitation and had been in that state at the end of the previous day. The Court adjourned and the Crown prosecutor then spoke to the stepdaughter and reported that she was still very distressed, hyperventilating and tearful. After the jury had come back, the stepdaughter told the applicant’s counsel that she had been too distressed to read through her statement overnight.
The stepdaughter gave evidence under cross examination that she had hated the applicant, that he always yelled, that he told her everything she did was wrong, that he had a temper and that he appeared to blow hot and cold with her mother. After repeated questioning about whether she was lying (which she denied) and inconsistencies, she said “I don’t remember anything, I’m telling you, I don’t remember.”
The stepdaughter was asked about what she told the counsellor and said that the only things she remembered about the counsellor was her shoes and that she always had yellow post it notes. She could not remember what she told the counsellor.
The friend gave evidence at the hearing. The friend’s evidence was that the stepdaughter had told her that the applicant would go into her bedroom at night-time and put his hands under her blankets and touch her, and that he also watched her shower. The friend remembered the stepdaughter telling her this when they were in Year 8. The friend said she tried to comfort the stepdaughter, because she was upset. The friend recalled being with the stepdaughter when she told the school counsellor about the assaults. The friend recalled the stepdaughter telling the counsellor that she was afraid to go home.
The friend also gave evidence that the stepdaughter had told her in about Year 8 (in 2005) that the applicant gave her a massage then “took the massage too far” when he put his fingers inside her.
A police officer gave evidence that he had seen the stepdaughter in 2014, when he visited the home of the applicant and the mother. He stated that she had said when walking past him: “nothing will happen to him, just like nothing happened when he assaulted me.” When he asked the stepdaughter later in the day what she meant, she said to him: “He touched me up. They made me sign a statement saying I did not want to go ahead. I felt like no-one believed me.” The stepdaughter told the police officer that the applicant assaulted her in a sexual way and physically and that he pushed her up against a wall. The police officer’s evidence was that the stepdaughter was crying while speaking to him and seemed genuinely distressed.
The applicant gave evidence at the trial. His evidence is that he met the mother in 1998 and they started to go out in early 2000. When they moved in together, the stepdaughter was nearly nine. He said that he and the stepdaughter had a poor relationship by the time she started high school. The applicant said that his relationship with his stepdaughter got worse when she started a relationship at about age 13 with a young man he knew to be a criminal. She was taking drugs at the time.
The applicant denied ever touching the stepdaughter in a sexual way.
The jury was directed to return a verdict of “not guilty” in relation to some of the charges concerning the stepdaughter, because the stepdaughter only gave evidence of one sexual assault, not the five with which the applicant was charged. The applicant was found not guilty of the remaining charges concerning the stepdaughter.
The applicant applied for a working with children check clearance in 2017. The Children’s Guardian undertook a risk assessment of the applicant because proceedings were commenced against him for a disqualifying offence (Child Protection (Working with Children) Act 2012 (NSW), s 14, Sch 1, cl 1(1)(a)). In May 2018, the Children’s Guardian determined that the applicant was subject to an interim bar, under s 17 of that Act.
The Children’s Guardian refused the applicant’s application for a working with children check clearance, in May 2019, on the basis that he posed a real and appreciable risk to the safety of children. The Children’s Guardian took into account allegations that he sexually assaulted the stepdaughter, the teenage girl and two girls under the age of ten.

The applicant applied for a review of the Children’s Guardian’s decision. On 30 July 2021, the Tribunal set aside that decision and granted the defendant a working with children check clearance.
The Children’s Guardian sought judicial review of the Tribunal’s decision. The Supreme Court found that the Tribunal had made errors of law in its decision. It set aside the Tribunal’s decision and remitted the proceedings to the President of the Tribunal for redetermination according to law: Office of the Children’s Guardian v DVR [2022] NSWSC 1036.
Upon remittal, the Tribunal was reconstituted with its present members.

Relevant legislative provisions and case law

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Child Protection (Working with Children) Act 2012 (NSW) (see Child Protection (Working with Children) Act, s 4).
The Children’s Guardian is prohibited from granting a working with children check clearance to certain persons, including persons convicted of specified offences (Child Protection (Working with Children) Act 2012 (NSW), s 18(1)). That prohibition does not apply to the applicant.
The Children’s Guardian conducted a risk assessment of the applicant under s 15(1) of the Child Protection (Working with Children) Act.
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 (Child Protection (Working with Children) Act, s 18(2)). A reference to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children (Child Protection (Working with Children) Act, s 5B).
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 (NSW) of the decision within 28 days after notice of the decision was given to the person (Child Protection (Working with Children) Act, s 27(1)).
The Tribunal is required to consider certain matters when determining an application for review of a decision to refuse a working with children check clearance. Section 30 of the Child Protection (Working with Children) Act relevantly 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.

The Tribunal’s task, when it has before it allegations about an applicant, is “to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance” (CXZ v Children’s Guardian [2020] NSWCA 338, Simpson AJA at [57]). The Tribunal must give consideration to the strength of the evidence supporting the allegations against an applicant. Allegations found to be without foundation are to be dismissed, and weight is to be assigned to allegations which are well founded. The Tribunal must also address allegations between those extremes (CXZ v Children’s Guardian [2020] NSWCA 338, Simpson AJA at [57]).

Non-publication order

When this matter was before the Tribunal as originally constituted, on 6 June 2019, the Tribunal made the following order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act):

“With the exception of expert witnesses and officers of government agencies, 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.”

After the matter was remitted to the Tribunal by the Supreme Court, on 30 August 2022, the Tribunal made another non-publication order under s 64(1)(a) of the NCAT Act as follows:

“The publication or broadcast of the name of the applicant, child and victim is prohibited.”

It was not plain whether this order was intended to replace the earlier order or not.
We have decided to vacate those two orders and make a new non-publication order of our own motion. That is because the order made on 30 August 2022, if it has the effect of vacating the earlier order, is not sufficiently broad to capture alleged victims and members of the applicant’s family. We make the following order pursuant to s 64(1)(a) of the NCAT Act:

The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or alleged victim of the applicant, is prohibited.

We will also make an order giving the parties liberty to apply to vary that order.

Approach to fact-finding on remittal

Mr Wilson, for the applicant, submitted that the Tribunal as presently-constituted should adopt findings of fact made by the Tribunal as previously-constituted, insofar as those findings are not inconsistent with the Supreme Court’s decision. He said that this would make the hearing quicker and that it would give effect to the guiding principle, to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)).
Mr Wilson submitted that the Tribunal would not abdicate its function by adopting previous findings. It could then, in Mr Wilson’s submission, make findings as to risk based on the previous factual findings.
The respondent opposed this approach.
The applicant relied upon CVE v Children’s Guardian (No. 2) [2017] NSWCATAD 371, another case which was remitted to the Tribunal from the Supreme Court. That was a case in which the Court found that the Tribunal had given inadequate reasons for its decision and remitted the matter to the Tribunal for redetermination according to law. The Tribunal was constituted by the same members on remittal as it had been in the first instance. The Tribunal relied upon the evidence which had been before it in the first instance as well as additional evidence and submissions. In its written decision following the remittal, the Tribunal repeated some of the findings it had made the first time, and added further findings and reasoning.
That case does not, in our view, assist the applicant. The Tribunal was constituted by the same members before and after the remittal and the error related mainly to the adequacy of its reasons, unlike in this case where the error was in the application of the correct test. Further, the Tribunal did not state that it would take the approach of adopting the same findings that it made previously. Whilst it did, in fact, make many of the same factual findings, it did not preclude the possibility of making different factual findings, had the evidence as a whole supported them.
Our attention was also drawn to Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518. In that case, the Full Court of the Federal Court had found that a tribunal reviewing a decision to refuse an application for a protection visa had erred. It remitted the matter to the tribunal “as previously constituted.” That order was made in an attempt to preserve findings of fact that had been made by the tribunal that were said to be favourable to the visa applicant. The question on appeal to the High Court was whether it was open to the Federal Court to remit the matter to the tribunal as previously constituted for the purpose of preserving certain findings of fact. The High Court found, by majority, that it was not.
Gleeson CJ remarked (at [7]) that the consequence of the remittal order “was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent’s claim to refugee status.” The Tribunal’s decision upon a further review was “to be made on the basis of the facts as they appear in the course of that review” (at [16]). His Honour considered that the findings made by the Tribunal when conducting the original review “will have no legal status in that further review.” Neither the original tribunal member “if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them” (at [16]). The Tribunal was required to reach a state of satisfaction which “must exist at the time of the decision following the hearing of the remitted matter, and must be formed on the basis of all the information before the Tribunal at that time” (at [18]).
McHugh J (in one judgment) and Gummow and Hayne JJ (in another) emphasized the non-adversarial nature of the litigation (being merits review), and the Tribunal’s obligation to give a written statement of reasons including its findings on material questions of fact (at [37] and [71]-[72]). Those were the findings made on the further review as at the date of the decision. That obligation was inconsistent with the Tribunal simply adopting the earlier findings.
Our role when hearing and determining the proceedings as remitted from the Supreme Court is to decide what the correct and preferable decision is having regard to the material before us (Administrative Decisions Review Act, s 63(1)). That decision must, of course, be made at the time of the remitted hearing or when the decision is reserved. It would not, in our view, be consistent with that statutory task for us uncritically to adopt factual findings made by a differently-constituted Tribunal. The High Court’s decision in Wang indicates that such an approach would be erroneous.
If, contrary to our view, it is open to us to adopt factual findings made by the Tribunal as earlier constituted, we would decline to do so in our discretion. We prefer to exercise our own independent judgment and reasoning when evaluating the evidence and forming an opinion as to any risk the applicant may pose to the safety of children.

Position of Children’s Guardian

The Children’s Guardian conceded after the proceedings were remitted to the Tribunal that the allegations concerning the applicant sexually abusing two children under ten were groundless.
We have dismissed those allegations as being unsupported by any probative evidence and have not taken them into account.
The Children’s Guardian did not contend that the allegations concerning the stepdaughter and the teenage girl could be established as being true, but rather relied upon the possibility that the applicant had committed the alleged sexual offences. The Children’s Guardian also relied upon the disciplinary findings which were made against the applicant.

Failure to make teenage girl available for cross examination

At the first hearing, the applicant requested that the teenage girl be made available for cross-examination and the Children’s Guardian declined to make her available (Office of the Children’s Guardian v DVR [2022] NSWSC 1036 at [67]). The Children’s Guardian claimed that this request was not pressed at the first hearing (Office of the Children’s Guardian v DVR [2022] NSWSC 1036 at [118]).
As we understand it, the applicant did not repeat the request or make another request that the teenage girl be made available for cross examination prior to the second hearing. However, the applicant’s counsel relied in the second hearing on the earlier request which had been declined.
Harrison AsJ observed in Office of the Children’s Guardian v DVR [2022] NSWSC 1036 at [119] that in working with children check proceedings “there should be no inflexible requirement to call or contact witnesses in respect of historical allegations.” It is open to the Tribunal to take a statement made by a person who is not made available for cross examination as evidence of the facts asserted in the statement, but this is subject to consideration of how much weight should be attached to the statement in circumstances where it has not been tested (Children’s Guardian v BRL [2016] NSWSC 1206 at [24]).
We have taken into account that the teenage girl (who is, of course, now an adult) was not made available for cross examination and that her statements and those of other people who provided statements which supported her story have not been tested. We have also taken into account the seriousness of the allegations made by her. We are mindful of Fagan J’s observations in Children’s Guardian v BRL [2016] NSWSC 1206 at [30]:

“If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant’s refusal to testify in 1999 and of the Children’s Guardian’s failure to call her in 2015 or 2016.”

In light of the position taken by the Children’s Guardian at the second hearing, we have limited ourselves to determining whether there is a real risk that the conduct alleged by the teenage girl, occurred.
The applicant did not request the Children’s Guardian to make the stepdaughter available for cross examination. Her evidence was tested, albeit not before us, and we were provided with the transcript of her cross-examination in the criminal proceedings. The circumstance that the applicant did not ask that she be made available for cross examination in the Tribunal puts her statements and evidence in a different category from that of the teenage girl (Children’s Guardian v CF1 [2020] NSWSC 1673 at [61]-[62]; Children's Guardian v CXZ [2019] NSWSC 1083 at [215], overturned on appeal but not on this point in CXZ v Children’s Guardian [2020] NSWCA 338). It could not be said that the applicant was denied an opportunity to test the stepdaughter’s evidence.

Further authority

After the hearing and whilst the decision was reserved, the applicant’s solicitors wrote to the Tribunal to advise it “of an authority that directly concerns the evidence of Dr Nielssen,” being CPO v Children’s Guardian [2017] NSWCATAD 149 at [30]–[35]. The applicant’s solicitors stated in correspondence to the Tribunal that bringing this case to our attention was consistent with their obligations pursuant to Rules 19.1, 19.2, 19.6 and 19.8 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Rules), and to the obligations of counsel for the applicant pursuant to Rules 24, 26, 29 and 31 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers’ Rules). The Crown Solicitor disputed that the applicant’s legal representatives were obliged to inform the Tribunal of that authority or that it was relevant.
We agree with the respondent that the applicant’s legal representatives were not obliged to bring that case to the Tribunal’s attention by any of the rules relied upon. It is not “binding authority” within rule 19.6 of the Solicitors’ Rules or rule 29 of the Barristers’ Rules and is doubtful that it is “against the client’s case”. In paragraph 35 of CPO v Children’s Guardian [2017] NSWCATAD 149, the Tribunal decided to accept the evidence of Dr Nielssen to the extent that it relates to sexual offending, implicitly finding this to be within his expertise, and also decided not to accept his views regarding the interests of justice and his conclusions affected by those views.
We have not found this case to be of assistance to the questions we have to determine.

Allegations concerning the stepdaughter

As indicated above, the stepdaughter claimed on many occasions that the applicant had sexually and indecently assaulted her in her family home over a long period of time.
The applicant submitted that the allegations that he had engaged in sexual misconduct with the stepdaughter should be rejected, for a number of reasons.
The applicant submitted that the stepdaughter was “an unconvincing witness” in the criminal proceedings against the applicant. His counsel pointed out that the stepdaughter repeatedly gave evidence that she could not remember certain events or matters. The applicant pointed to particular aspects of the stepdaughter’s evidence, such as the evidence she gave in relation to the alleged sexual assaults: “it happened a few times. I can’t be exact how many times or dates but it did happen.” In response to a question as to what she told her mother about the applicant, the stepdaughter responded: “I can’t exactly remember. Like I just – I was really vague with mum and told – I’m not sure. I have no idea what I said to her. I know that I was very vague.”
The applicant submitted that what was striking about the stepdaughter’s evidence in chief is “that there was a complete failure to detail the allegations against the applicant.” He submitted that “little to no weight” could be placed upon the evidence in support of her allegations and that she “was not a credible witness.”
The applicant also pointed out that the stepdaughter had given many inconsistent accounts of the alleged sexual abuse. For example, in 2007, she had complained to a school counsellor that the applicant had sexually assaulted her since she was six years old, whereas he did not meet her until she was eight or nine. In addition, under cross examination, she had admitted to giving substantially different accounts to counsellors and police and she admitted to having a drug problem from about Year 7.

Counsel for the applicant in the criminal proceedings, Mr Rosser, pointed to some inconsistencies in the stepdaughter’s evidence in his closing address. Mr Rosser pointed out that the stepdaughter told police in 2014 that the applicant had sexually abused her in the bathroom but had said at that time, “[h]e never did anything to me in my room though.” The friend however remembered the stepdaughter telling her that the applicant would go into her bedroom at night time and touch her in places she did not want to be touched and would also watch her shower.
Mr Rosser also said that in 2007 she had disclosed to a counsellor incidents of sexual abuse including digital penetration and indecent assaults from the age of six until age 12. He said it was significant that the stepdaughter had not said it continued after the age of twelve. Mr Rosser also pointed out that she told another counsellor in late 2008 about an actual rape which happened at the beginning of 2007. The stepdaughter then told the court in the criminal proceedings that she could not remember being raped.
The applicant’s counsel in the proceedings before us, Mr Wilson, submitted that it was open to the Tribunal to find that the allegations made by the stepdaughter were baseless. In further submissions filed after the hearing, he drew attention to the inconsistencies to which she had admitted in the criminal proceedings whilst under cross examination, and other matters said to be damaging to her credibility. The applicant’s counsel submitted that the Tribunal should find that the allegation that the applicant sexually assaulted the stepdaughter from age 6 or 7 onwards was baseless given that the applicant did not commence a relationship with the mother until 2000 (when the stepdaughter was 8).
The applicant also relied upon evidence that the stepdaughter only suffered from glandular fever in January 2005. That evidence was relied upon to discredit the stepdaughter’s account that the applicant massaged her when she had glandular fever, and explained to her at the time that when he placed his finger in her vagina he was checking her glands. The applicant said that was untrue because the stepdaughter said that that incident occurred in a house which she moved into in August 2005.

Is there a possibility that the stepdaughter’s allegations are true?

As the applicant submitted, the stepdaughter had a lot of difficulty, when she was cross examined, remembering dates. She was very frank about her inability to do so, saying: “As I said I don’t know dates. I don’t remember dates.”
We do not consider that the stepdaughter’s inability to remember the dates on which the alleged abuse occurred, or even the years in which it occurred, necessarily means that she is lying about the applicant’s conduct. To some extent, her candour in this respect makes it more likely that she is telling the truth. For example, when questioned (in 2017, when she was about twenty-five) about whether she accepted that she moved into a particular house in August 2005 (when she was about thirteen), she responded: “I have no idea. I’ve said to you over and over I don’t know dates.” That response appears to us to be credible.
The stepdaughter alleged repeated sexual abuse of a similar nature over an extended period of time. Her evidence in the criminal proceedings was that “[i]t was always the same thing”. She recounted the applicant telling her to go to the bathroom and put the heat lamp on when she complained of sore bones. He would then tell her to take her clothes off and then he would massage her with her underwear on, and eventually put his finger in her vagina. In a statement made in 2014, the stepdaughter stated that “[a]ll the assaults happened in this exact same way” (referring to the massaging in the bathroom leading to digital penetration).
It is not implausible that, as an adult, the stepdaughter would not be able to recall the exact times when the sexual assaults occurred, particularly given that each incident followed a similar pattern. Her evidence that she was “[p]robably in Year 7 or 8” at the time is plausible, noting that her memory of the year in which the incidents occurred may not be accurate.
The circumstance that the stepdaughter contracted glandular fever in early 2005 does not, in our view, detract from the credibility of her evidence about the sexual assaults which she said occurred in a house she lived in later that year or, if it does so, does so only minimally. She told the court she got glandular fever in primary school and “was constantly sick after.” She also told the court that the applicant told her when assaulting her that she had “glands inside [her vagina] that he needed to check.” That could have happened on any occasion that she was sick following the episode of glandular fever in January 2005.
The stepdaughter’s evidence that she was vague as to what she told her mother does not, in our view, detract from her credibility. The mother’s evidence was that on one occasion, when she was about 9 or 10, the stepdaughter told her that the applicant rubbed cream on her eczema when she was naked. The mother then made a statement in 2014 that the stepdaughter had told her, only after going to the police in 2014, the “full story.” The mother stated that the stepdaughter had told her that the reason she did not tell the mother the full story at the time was because she did not want to wreck the mother’s marriage. The stepdaughter’s evidence that she was vague with her mother is consistent with the mother’s evidence.
We accept that the inconsistencies in the accounts given by the stepdaughter raise some issues about her reliability. However, we are not persuaded that it follows from the inconsistencies that she was lying about the applicant sexually abusing her or that the allegations are baseless.
The evidence that the stepdaughter told a counsellor in 2007 that the applicant had abused her since the age of six is in tension with the evidence of the applicant and the mother that they met in 1998 and started to go out in 2000 (when the stepdaughter was eight years old) and moved in together that year. The record that the stepdaughter had disclosed that the applicant had sexually assaulted her since she was six years old was third-hand (a report by the counsellor to JIRT of what the stepdaughter had said). Assuming, however, the stepdaughter’s disclosure to have been correctly reported, it may be that in 2007 (at age fifteen) she had forgotten the age at which the abuse had started and made an incorrect guess. Alternatively, it may have started before the applicant moved in with the mother. The possibility that the abuse began when the stepdaughter was pre-pubescent is strengthened by the mother’s report that the stepdaughter told her that the applicant massaged her when she was naked at about age 9 or 10.
The applicant’s submission in these proceedings that the stepdaughter must be lying because he did not meet her until she was eight or nine is inconsistent with the applicant’s evidence in the criminal trial. He told the court that he met her when she was about 6 or 7 years of age, albeit that he had “limited contact” with the stepdaughter until he moved into her home. It is accordingly possible that he touched her sexually when she was six or seven years old, albeit that there is insufficient evidence to form a view as to whether this occurred.
The stepdaughter’s report, as recorded in a JIRT record, in late 2007, was that the applicant had stopped abusing her three years ago (when she was twelve). The report also stated that she had left the family home in January 2007 and lived with her natural father.
The stepdaughter’s report that the applicant stopped abusing her when she was about twelve, in about 2004, is inconsistent with other reports and evidence. A counsellor’s log from early 2006 about the stepdaughter records that she “disclosed concerns re stepfather” and that she had told her mother at the “end of last yr, 4 or 5 times since then recurrence.” The following month the counsellor noted that the caseworker had seen the mother who “was proud of [the stepdaughter] for speaking up, thought it had stopped.” The friend also said that when the stepdaughter was about fourteen she told her that the applicant was molesting her. In the statement the stepdaughter made in the criminal proceedings, she states that she recalled being assaulted by the applicant between January 2006 and September 2007.
We accept that the contradictions in the stepdaughter’s accounts of sexual abuse cast some doubt on their veracity. However, there are a number of plausible explanations for why the stepdaughter would have said, in 2007, that the abuse stopped three years ago when it had not (assuming that statement was correctly reported). She was reluctant to speak to the police about the abuse at that time and stated that she did not want the matter investigated. In her statement in 2014, she said that in 2007 she went to live with her father “because after the assaults I went off the rails.” She described using drugs “as a coping mechanism.” As indicated above, the stepdaughter told Community Services that she did not want her mother to know about the report. It may be that she said that the abuse stopped three years ago so that the police would not talk to her mother about it or investigate further. She may have wished to deny recent abuse because she could not face it. Further, as noted in a COPS report (a Police record), the information in the original report was third hand and the stepdaughter declined to speak to police when they contacted her in 2007.
The stepdaughter’s inability to remember the applicant raping her, when she had told a counsellor in 2008 that this had happened, is unusual. One explanation for this is that she invented the alleged penile rape at the time. However, there are also other possibilities. It may be that the stepdaughter’s inability to remember the assault was the result of trauma. Her evidence in 2014 suggests that she was experiencing the effects of trauma at that time. In her statement made towards the end of 2014, the stepdaughter stated that she had only recently stopped taking drugs and drinking excessively and indicated that she was about to change psychologists for help in dealing with the sexual assaults. She stated that, as a result of the sexual assaults, she was “very messed up,” felt paranoid, felt like everyone was going to let her down and experienced mood swings.
There is insufficient evidence for us to determine whether the stepdaughter invented the rape, or whether the alleged rape occurred. However, we consider that it is possible that it occurred.
There are many contemporaneous reports and reports made after the alleged abuse had stopped which tend to support the stepdaughter’s allegations that the applicant sexually abused her or acted inappropriately towards her. We have identified the following disclosures from the materials before us:

Disclosure to her mother at about age 9 or 10 that the applicant massaged her when she was naked;

Disclosure to a friend in about 2005 when she was about thirteen that the applicant had sexually assaulted her (corroborated by the friend and the friend’s mother, to whom the stepdaughter also spoke);

Disclosure to Family and Community Services in about 2006 when she was about fourteen that her stepfather massaged her all over her body;

Disclosure to a school counsellor in 2007 when she was about fifteen that the applicant had sexually assaulted her;

Disclosure to case worker from Community Services in 2007 that the applicant had sexually abused her, that he would touch her everywhere and that he had touched her vagina;

Disclosure to a friend of the mother’s in 2007 about sexual contact with the applicant;

Disclosure to a counsellor in 2008 when aged about sixteen that the applicant had physically and sexually assaulted her from the age of seven years until 2007;

Disclosure to a counsellor in 2009 when aged about seventeen that the applicant had physically and sexually assaulted her from the age of seven years until 2008 and also that he had raped her;

Disclosure to her boyfriend in 2010 when aged about eighteen that the applicant had tried to touch her up and had played with her when she was about twelve (corroborated by the boyfriend);

Disclosure to police in 2014 when aged about twenty-two of sexual assaults by the applicant;

Disclosure to a police officer who attended the family home in 2015 when aged about twenty-three that the applicant “touched me up”.

There are also a number of reports of the stepdaughter appearing to be distressed when discussing the sexual abuse. The boyfriend said in a statement made in 2014, “there were times that she was so upset about it that it was hard to believe that she was lying.” The friend’s mother, to whom the stepdaughter made a disclosure in 2007, described her as “distraught and very upset.” The friend also recalled that the stepdaughter was upset when talking about the assaults. Further, the judge in the criminal proceedings commented on her distress and agitation.
These multiple accounts of her distress in connection with the allegations of sexual assault suggest that they might be true.
The applicant has consistently denied that the assaults occurred or that he acted inappropriately. He maintained that position under cross examination in the criminal proceedings and also when cross examined in the Tribunal proceedings at the first hearing. His evidence was that his relationship with the stepdaughter was always strained. We have taken this into account. We have also taken into account the positive character references the applicant has provided and the evidence as to his good character which was led in the criminal proceedings.
The applicant expressed the opinion in a statutory declaration that the stepdaughter’s allegations were “a complete fabrication designed to destroy my good character and reputation in the community.” Whilst that is possible, it does not appear to us to be a very likely explanation, given the multiple disclosures made by the stepdaughter over many years. As was put to the applicant in cross examination, the Community Services report from 2007 states that the stepdaughter was adamant that she did not want any investigation into the matter. It indicated that she also did not want her mother to know about the report because her mother loved the applicant. The applicant stated, when cross examined about that report, that the stepdaughter wanted the allegations to go away, but maintained what he wrote in the statutory declaration.
We also consider that it is unlikely that the allegations were made in retaliation for the applicant’s disapproval of the stepdaughter’s relationship with her first boyfriend, as the applicant suggested. The mother reported the stepdaughter making an allegation of inappropriate massaging when she was about nine, before that relationship commenced. The conflict between the applicant and the stepdaughter about the first boyfriend does not explain why the stepdaughter decided to press charges in 2014, when she was an adult and long after the relationship with the first boyfriend had ended.
We consider that, notwithstanding the applicant’s evidence, including his character references, there is a significant possibility that he sexually abused his stepdaughter. That is, there is a significant possibility that he digitally penetrated her on a number of occasions whilst massaging her in her underwear in the bathroom at the family home. There is also a significant possibility that he went into her bedroom at night time and put his hands under her blanket and touched her inappropriately, as she told her friend when she was about thirteen.
We have reached that conclusion having considered all of the evidence described above, giving weight to the multiple disclosures the stepdaughter made.

Allegations concerning the teenage girl

The applicant submitted that the allegations made by the teenage girl should be given little or no weight given that she was not made available for cross examination. We have dealt with that submission above. The circumstance that she was not made available for cross examination affects the weight we give to the allegations she made, but does not preclude us from finding that there is a possibility that the allegations are true.
The applicant also submitted that the Tribunal should find as a fact that the applicant did not touch the teenage girl’s underwear on the basis of the DNA testing undertaken.
As the applicant accepted in cross examination in the first Tribunal hearing, the DNA results stated that the teenage girl’s underpants had mixed DNA from four individuals and that it was too weak for that DNA to provide a profile consistent with any individual. Whilst the applicant was excluded as a “major contributor” to the mixture, the applicant accepted that the evidence did not show that he was not one of the DNA contributors. In these circumstances, we do not make the factual finding the applicant’s counsel invited us to make, namely that the applicant did not touch the teenage girl’s underwear on the basis of the DNA evidence.
In an interview with police two days after the alleged sexual assault took place, the teenage girl responded to a detective’s question as to why she was at the police station, by saying “[b]ecause I did sexual stuff with a police officer that drove me home and regrettably told my mother about it.” She told the police: “He fingered me and went down on me and I touched him.” She also said that he licked her vagina. The teenage girl told the police the name the applicant had given her (which is not his real name). When describing the incident, she said that he told her to touch herself, so she did. In her account, the applicant then said that he did not believe that she had been swimming (as she claimed to have done) because she was not sandy. He asked her whether she was salty, and when she said she did not know, he licked her vagina.
The teenage girl stated that, on the way home in the car with the applicant, she was encouraging him to touch her. She said (and the applicant accepted) that she took her clothes off in the car. The teenage girl told the police that the applicant put his hands between her legs and digitally penetrated her. According to the teenage girl, he then stopped the car and performed oral sex on her for a short time. The teenage girl asked him to have sex with her but he refused.
The teenage girl also told the police that earlier in the evening, before the applicant drove her home, two boys had tried to rip her undies off, one had tried to have sex with her and that she had had sex with another boy.
The teenager said the sexual conduct with the applicant “happened kind of all over the place we were together for quite a while I remember I got home I was like, my God I was with him for like 2 hours.” Towards the end of the interview, the teenage said, “I feel really, really badly for this guy.”
The applicant stated in a police interview that he believed the teenage girl was anywhere between 12 and 14 years old. She initially gave him a false address. He attended that address with some other police officers, with the teenage girl in the back of a paddy wagon. When he found out her correct address, the applicant offered to take the teenage girl home. She then came and sat in the front seat of his car. He said he made that offer because he knew the car crews were busy and it was on his way home.
The applicant’s account is that the teenage girl told him that she had been for a swim, and said “see I’m all wet and salty.” He then said he saw she was masturbating. He said he was “absolutely shocked.” The applicant stated that she tried to grab his left hand off the steering wheel and force it between her legs but he pushed her away. She said to him, “Finger me.” He asked her to stop masturbating and she got her right hand and stuck it in his mouth. He said she took her clothes off in the car. He located her house, stopped the car there and told her to get out. The applicant explained that he did not speak to her parents because he was in a state of shock and was embarrassed.

The applicant agreed in the police interview that he had told the police officer who interviewed him that when he dropped the teenage girl off at her home, he conducted a registration check via police radio on the vehicle parked at the house to confirm it was the correct address. Later in the interview, however, he said that he had jotted down the registration number of the car at the house and did not check it until later. He said he went to the police station but did not tell anyone “because I thought to myself, who the hell is gunna believe me.”
The applicant said that when he got back to the police station he “actually did a couple of checks on [the teenage girl].”
The applicant did not report the incident at work the following day. The applicant’s duty book records that he drove female to address but does not contain any report that she propositioned him or took her clothes off in the car.
The police detective who interviewed the teenage girl about the incident reported that the teenage girl “does not see herself as a victim rather a willing participant.” The detective considered the teenage girl’s account was reliable and that it was highly likely that the incident occurred as she described it.
A file note indicates that the teenage girl “was resistant to talk to JIRT” about the incident. JIRT found that a sexual act had occurred between the applicant and the teenage girl and substantiated the sexual assault of the teenage girl.
The computer logs indicate that the applicant commenced the drive to the teenage girl’s home at about 2:39 am but did not do the check on the car until about 3:40 am. The applicant had told the police that it only took about 16 minutes to compete the drive. When this was put to him in the police interview, the applicant said that “maybe I didn’t do the check initially, maybe I checked it a little bit later on”. The initial account the applicant gave, however, strongly suggests that he did the check after he had dropped the teenage girl at her home but before he left. He said: “Now, I actually did a transport on the car and it came up to [name and teenage girl’s surname], so I knew that she was – she was home and that’s – I just thought, ‘Well, she’s home and it’s – she’s out of the car and I’m going back to the [name of] Police station, so I basically drove’.” The applicant agreed, when cross examined, that he was at the time telling police that he had conducted a registration check before he left the teenage girl’s house, but said that on reflection that was incorrect.
If the applicant conducted the vehicle check at the teenage girl’s house, as the applicant initially indicated, then it took him just over an hour to transport her home, when it should have taken at most twenty-five minutes. That gives some credibility to the sexual assault allegations. It is also consistent with the teenage girl’s recollection that the drive home took a very long time.
The applicant accounted for the long time between the beginning of the drive and the conduct of the vehicle check by saying he conducted the vehicle check after he had left the teenage girl’s home. He did not offer that explanation until it had been pointed out to him that there were 36 minutes unaccounted for in his trip to the girl’s home. If he did not conduct the vehicle check at the time he left the teenage girl at her home, as he now maintains, he could not have satisfied herself when he left her that he had taken her to her home and that she was safe (particularly when she had previously lied about her address).

Professional conduct findings

The police conducted a professional conduct investigation into the applicant’s alleged conduct with the teenage girl.
The professional conduct investigator noted that the applicant marked on a map the route he took when taking the teenage girl to her home address and that inquiries revealed the trip would have taken between nine and sixteen minutes depending on traffic lights.
The investigators conducted a download of a computer used by the applicant. This indicated that he had conducted multiple searches of the teenage girl’s Facebook page after the encounter. He also conducted Google searches of her. After the criminal interview, he had conducted searches on whether the Tom Tom GPS could be identified and downloaded.
The investigation found that the applicant failed to provide a duty of care to the teenage girl when dropping her home considering that she was fourteen, intoxicated and vulnerable. It made a finding that he had elected to convey a fourteen-year old girl to her home address whilst unaccompanied by another officer in circumstances that were neither exigent nor appropriate (contrary to the policy that this should not have occurred unless unavoidable). Further, it was noted that the applicant did not make any enquiries to make sure there was a responsible person at the girl’s home before leaving her there.
The investigation noted that advice was received from the Department of Public Prosecutions regarding the allegations that the applicant had digitally penetrated and performed oral sex on the teenage girl. The investigation noted that as a result of that advice the PSC CMT determined that the alleged criminal offence would be marked as not sustained. The investigator recorded: “As this is a criminal matter this matter is not sustained.”
The internal review panel agreed to have the applicant dismissed from the police force. Ultimately, he was medically retired and not dismissed.

Consideration of teenage girl’s allegations

There are a number of matters which tend to support the allegations made by the teenage girl. The morning after the incident she messaged a friend, who had spoken to the applicant the night before, stating “I got licked out by the police officer.” Further, as the applicant accepted in cross examination, the teenage girl was not a willing complainant. She was taken to the police station by her mother and did not see herself as a victim (as the applicant accepted). She did not want to press charges and indicated that she felt badly for the applicant. There is no obvious motivation for the teenage girl to invent the allegations.
The teenage girl also provided some details of her conversation with the applicant, set out above. Those details give some credibility to her story. Assuming the teenage girl’s memory to be correct, the applicant gave her a false name, which would suggest he was trying to hide his identity. It is damaging to the applicant’s credibility that he made no mention of the teenage girl’s sexualised behaviour in his notebook and did not report it to his superiors when he spoke to them.
We accept the applicant’s submission that it is possible that the teenage girl “projected what she did that night on to the applicant” and that the applicant has been unable to explore that in cross examination.
Notwithstanding this, for the reasons given above, we consider that there is a significant possibility that the allegations made by the teenage girl are true.
We also consider that, even if the allegations are not true, the applicant acted in a way which put the teenage girl at risk. It was not prudent to drive her home alone at night, especially when she was intoxicated and had been displaying provocative behaviour. It was negligent to drop her home without speaking to an adult at her home address to ensure she was safe and without informing the adult of her behaviour in the car, or her previous behaviour on the beach, when picked up. The applicant also displayed little regard for the girl’s safety when he failed to report her sexualised conduct to his superiors or to record it in his official police notebook.
The applicant accepted in cross examination that he had not recorded the activities of the teenage girl in the car in his official police notebook but explained that he had completed this in another notebook instead. He agreed this was a diversion from his normal methodology in doing so. The notebook is an undated document which records the applicant’s account of what happened in the car. He explained that he did this because he needed to get his thoughts right. The failure to include a report of the girl’s behaviour promptly in the official notebook, coupled with his failure to inform superiors about the girl’s sexualised conduct, was a failure of his duty of care to the girl.
The applicant explained that he did not tell anyone about the teenage girl’s behaviour because he did not think he would be believed. He said in cross examination that he was initially concerned for her welfare but whilst the concern remained, over the course of the trip, his shock and anger started to rise. When she left the vehicle, the applicant accepted that his own interests were greater than hers (in his mind). He accepted that his concern for her welfare at the point he dropped her home was not greater than his concern for himself. His evidence was that he was more concerned about the way he was feeling. He was aware that he had a responsibility to the teenage girl and “felt terrible” about it but agreed that he did nothing. The applicant accepted, when cross examined, that the teenage girl was a child at risk, but said that had not occurred to him at the time.
In our view, the applicant’s conduct in failing to record the teenage girl’s sexualised behaviour in his official notebook and failing to report it to his superiors demonstrated that he did not act responsibly to ensure the safety of a child. The child’s sexualised behaviours, consumption of alcohol and lack of supervision late at night should have indicated to him that she was both vulnerable and at risk. The applicant’s failure to take any action to protect her, including by informing a parent of her behaviour, appears to have stemmed from a fear he would not be believed and a failure to understand his obligations towards her. He put his own interests over the interests of protecting a child.

Expert evidence

The applicant relied upon reports by Dr Olav Nielssen, psychiatrist, to support his case that he does not pose a risk to the safety of children. In a report dated 23 October 2019, Dr Nielssen diagnosed the applicant with post-traumatic stress disorder (relating to his experiences as a police officer), consistently with earlier diagnoses. He expressed the view that that the applicant’s volunteer work as a sports coach and his involvement in his grandchildren’s sporting activities would not adversely affect the safety, welfare and well-being of children placed in his care.
Dr Nielssen’s second report, dated 18 December 2019, took into account the additional instructions, presumably not given when he made his first report, that disciplinary findings were made against the applicant, but that a criminal investigation did not proceed and that the allegation of sexual assault was not sustained. Dr Nielssen was instructed that the applicant was found to have failed to comply with operational procedures by conveying a fourteen year old female home while unaccompanied, and that he was also found to have breached the Police Code of Conduct by failing to ensure that there was a responsible person present at the child’s address when he dropped her off.
In the second report, Dr Nielssen confirmed that these further instructions did not alter his opinion that the applicant “does not have a disorder of abnormal sexual interest that would make him a danger to a child placed in his care.”
On 5 November 2022, Dr Nielssen provided a further supplementary report, having been provided with the Tribunal’s first decision and the Supreme Court judgment setting that decision aside. He did not meet with the applicant again before providing the further supplementary report.
In the further supplementary report, Dr Nielssen stated that he did not agree with the “finding” (an observation made by the Supreme Court) that the risk assessment of the applicant is centred around the proposition that he did not engage in the alleged conduct. He stated that his assessment that the applicant does not pose a danger to children placed in his care was largely based on the clinical assessment of the applicant’s mental state, personal history, attitudes and circumstances.
In his reports, Dr Nielssen indicated that he did not apply any actuarial risk assessment tools because they were only applicable to offenders who had admitted to or been proven to have committed sexual offences. However, he said that if such tools were applicable, the applicant would be assessed as having a very low or negligible likelihood of committing a sexual offence.
Dr Nielssen was cross examined at the first hearing. When being cross examined, Dr Nielssen agreed that he was using the Static-99 test (an actuarial instrument) for a purpose for which it was not designed, when assuming (contrary to the evidence) that the applicant had committed an offence. Dr Nielssen agreed that a consequence of this was that the result it achieved was not reliable. He also accepted that the Static-99 was “crude” because, amongst other things, it did not take any account of the age of the victim. He stated: “I guess I can see the inappropriateness of using this scale when there’s no offence.”
Dr Nielssen was also cross examined at the second hearing. It was put to him by counsel for the Children’s Guardian, and he accepted, that the language he used in his further supplementary report (that the applicant did not pose a danger to children placed in his care) differed from the statutory test (whether the applicant poses a risk to the safety of children). Dr Nielssen stated that it was a “slightly different threshold” but that his view was that the applicant did not pose a risk to the safety of children. Dr Nielssen described the language used in his report as “careless wording” and explained this by reference to his lack of legal familiarity with the exact wording.
It was put to Dr Nielssen that the word “danger” connotes positive conduct, as opposed to “safety” which connotes both positive acts and prophylactic acts to ensure the safety of a child. He accepted that but stated that it did not change his opinion.
We accept Dr Nielssen’s opinion that the applicant does not have a disorder of abnormal sexual interest. However, that is not determinative of the question of whether the applicant poses a risk to the safety of children.
We accept the submission of the Children’s Guardian that, when expressing a view as to each of the factors in s 30(1) of the Child Protection (Working with Children) Act, Dr Nielssen appeared to presuppose, despite his evidence to the contrary, that the applicant had not committed any offence of sexual assault and that there was no possibility that he had done so. He did not consider “matters” which are not limited to offences as the provision allows for. He also appears to have acted on the applicant’s misleading report that a police investigation “cleared him" of the allegations against the teenage girl. He accepted the applicant’s position that the stepdaughter had alleged she was the victim of offences from the age of six, whereas the applicant did not meet her until she was aged eight or nine (contrary to the applicant’s evidence in the criminal proceedings).
Dr Nielssen expressed the view in his first report that “no victims have been identified by investigation,” without appearing to entertain the possibility that the allegations made against the applicant were true. Dr Nielssen identified in his first report the material he had read before making the report. This included the brief of evidence in the criminal proceedings and a transcript of those proceedings, as well as documents related to the investigation of the matter of the teenage girl. However, he provided very little analysis in his reports of that material and anything in that material which was indicative of risk.
We also note that Dr Nielssen has not interviewed the applicant since he met with him on 21 October 2019, with a further telephone interview on 23 October 2019.
We agree with the respondent’s submission that Dr Nielssen used language in his reports which differs from the test we have to consider, namely whether the applicant poses a risk to the safety of children. Although he told the Tribunal, at the second hearing, that he considered that the applicant did not pose a risk to the safety of children, this was about three and a half years after he had interviewed the applicant and he did not appear to remember that interview well. When asked about an aspect of that interview by a Tribunal member in October 2020, he said: “I’m sorry, I can’t remember in detail those kind of aspects but – and the mental state examination I’ve recorded. I remember, you know, he was a, sort of, fit handsome looking guy but I don’t remember much more else about his presentation and I didn’t find anything abnormal in his mental state examination should I’ve recalled it.”
Dr Nielssen’s opinion in the first report that that the applicant’s volunteer work as a sports coach and his involvement in his grandchildren’s sporting activities would not adversely affect the safety, welfare and well-being of children placed in his care, also failed to address the statutory test. That is because the test is not limited by looking at any particular activity in which an applicant is likely to be involved. It is a more general test as to whether the applicant poses a risk to the safety of children (which he might do in a range of situations, such as looking after his grandchildren, or starting a new form of employment).
For all of these reasons, we have treated Dr Nielssen’s opinions with some caution.
Dr Nielssen’s evidence is that, if actuarial instruments were used to estimate the probability of the applicant sexually offending, he would be assessed as posing a low risk of committing a sexual offence. In his third report, notwithstanding that he had said in cross examination that it was inappropriate to use actuarial tools where there was no offence, Dr Nielssen expressed the view that, even if “the allegation was proven,” the applicant would score “1” for having a stranger victim and “1” for having an unrelated victim.
An actuarial assessment is of limited if any utility in circumstances where the Tribunal has found that it is possible that the applicant sexually abused two children but the applicant has not been convicted of any offence. If the Tribunal were to rely upon a hypothetical assessment, that would be to condone using the actuarial instruments for a purpose for which they are not designed and in circumstances where Dr Nielssen has identified them as being unreliable. As Dr Nielssen stated in his first report, such instruments are not relevant as the applicant has not been found to have committed an offence. Even if they were relevant, they only provide a statistical guide, and the Tribunal is still required to assess risk having regard to the evidence as a whole.

Consideration of s 30 factors

Under s 30(1) of the Child Protection (Working with Children) Act, the Tribunal is required to consider a number of matters when determining an application for a review of a decision of the Children’s Guardian to refuse a working with children check clearance. Our consideration of those matters is set out below.

The seriousness of the offences with respect to which the applicant is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar (s 30(1)(a))

The sexual conduct in which the applicant is alleged to have engaged with his stepdaughter, and with the teenage girl, is very serious. The sexual assaults on the stepdaughter are alleged to have occurred in the family home in circumstances where the applicant was in a position of parental responsibility towards the stepdaughter. The alleged sexual conduct with the teenage girl also occurred in circumstances where the applicant was in a position of authority and responsibility in relation to the girl, conveying her home in his capacity as a police officer and enforcer of the law.

The period of time since the offences or matters referred to in s 30(1)(a) occurred and the conduct of the applicant since they occurred (s 30(1)(b))

There were some inconsistencies in the accounts given by the stepdaughter as to when the alleged sexual assaults by the applicant occurred, as discussed above. However, the last incident of alleged sexual abuse was in about 2007. That was about sixteen years ago.
The alleged sexual conduct with the teenage girl occurred in April 2014. That is over nine years ago.
There is no evidence of the applicant engaging in any sexual misconduct since that time.

The age of the applicant at the time the offences or matters occurred and his present age (s 30(1)(c), (f))

The applicant is sixty years old. At the time of the alleged sexual conduct with the stepdaughter, he was between about 42 and 44. At the time of the alleged sexual conduct with the teenage girl, he was about 50 or 51. We accept Dr Nielssen’s evidence that the probability of sexual offending declines with age.

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 (s 30(1)(d))

The stepdaughter was between about thirteen and fifteen at the time of the alleged offending. She was vulnerable because she was a child, she was in the family home at the time and the stepdaughter was in a position of authority in relation to her.
The teenage girl was fourteen at the time she alleged that the applicant had engaged in sexual conduct with her. She was vulnerable because she was intoxicated, she was a child and she was alone with the applicant who was in a position of authority in relation to her.

The difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant (s 30(1)(e))

The applicant is about 28 years older than the stepdaughter. He was at the time in a familial or parental relationship towards her and had a position of authority in relation to her.
The applicant is about 36 years older than the teenage girl. He did not have a pre-existing relationship with her, but was in a position of authority and responsibility in relation to her as a police officer responsible for returning her to her home.

Whether the applicant knew, or could reasonably have known, that the victim was a child (s 30(1)(f))

The applicant knew that the stepdaughter was a child at the time of the alleged offending. He also knew, at the relevant time, that the teenage girl was a child at the time he is alleged to have sexually assaulted her.

The seriousness of the applicant’s criminal history and his conduct since the matters occurred (s 30(1)(h))

When determining the applicant’s application, we are required to consider the seriousness of his criminal history and his conduct since the matters occurred (s 30(1)(h)).
There is no evidence that the applicant has been convicted of any criminal offences and we find that he has not been.
The applicant’s “criminal history” includes “criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged” (Child Protection (Working with Children) Act, s 5C(1)(b)). The charges against the applicant in relation to the allegations made by the stepdaughter are set out above. Those charges are very serious.
There is no evidence that the applicant has engaged in any sexual misconduct since the time of the allegations discussed above. The evidence provided by him in the form of references indicates that he is well regarded in the community and contributes to community sport and to charity events. There is also evidence, which we accept, that he has undergone treatment for his post-traumatic stress disorder and other mental health issues in the form of medication and counselling.
We have been provided with a police report of the applicant’s partner telling the police in 2019 that she punched the applicant during an argument with him and he retaliated by kicking her in the leg. The partner refused to supply a statement. In cross examination, in the Tribunal, the applicant said that his partner, who was affected by alcohol, pushed him up against a wall and he retaliated to get her off him by striking out with his foot. We have not taken this incident into account when forming an opinion about any risk the applicant may pose to children, given that the partner did not give evidence and the applicant has provided an explanation for his conduct.

The likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))

We are required to consider the likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition (Child Protection (Working with Children) Act, s 30(1)(i)).
The applicant has not been convicted of any offences. If “conduct” in s 30(1)(i) of the Child Protection (Working with Children) Act refers to the applicant's conduct since the allegations were made (see s 30(1)(h)), there is little in that conduct which would impact adversely upon children. However, if it refers to the conduct the subject of the allegations, the impact on children of any such repetition would be extremely damaging.

Any order of a court or tribunal that is in force in relation to the person (s 30(1)(i1))

There is no court or tribunal order of which we are aware that is in force in relation to the applicant.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

The applicant told Dr Nielssen that he had applied for a working with children check clearance in order to participate in a voluntary capacity as a rugby league coach and mentor, and also to be involved in the sporting and other activities of his grandchildren. He also told Dr Neilssen that he believed the complaint made by his stepdaughter was vindictive.
The applicant made a statutory declaration in 2018. In that statutory declaration, he stated that he had not been the subject of any complaints in relation to his roles coaching, training, volunteering and mentoring in children’s and adult’s sport. He said he had had a long involvement with a rugby club and has been involved in other sporting associations. We accept that evidence.
In the statutory declaration, the applicant characterised the allegations made by the stepdaughter as a “malicious and callous attempt to destroy my good character, reputation and standing in the community, by my former wife and her daughter.” He stated that the stepdaughter started taking recreational drugs such as marijuana and amphetamines early in Year 7 and also commenced a relationship with a local drug dealer at that time. He said his relationship with the stepdaughter deteriorated as he tried to stop her relationship with the drug dealer.
The applicant responded to a notice of intention, by the Children’s Guardian, to place an interim bar upon him. In that response, he stated that he believed that the stepdaughter made up the allegations in 2007, because the applicant tried to stop her having a relationship with a well-known drug dealer. He expressed the view that he did not pose any risk to the safety and wellbeing of children whatsoever.
The applicant made an affidavit dated 31 January 2020 which dealt principally with the allegations concerning two children under the age of ten, to which we have not had regard.
The applicant was examined and cross examined at the first Tribunal hearing. We have been provided with a transcript of the evidence he gave in that hearing and have taken it into account. His evidence in chief included that he had been heavily involved in sport for a long period of time and had never had an issue with the children he dealt with throughout his career. The applicant also gave evidence that he had a friend who had indicated that he might employ the applicant in a child welfare role.
The applicant provided a number of references in support of his application. They included a reference from a person who had known the applicant for twenty years through involvement in a rugby league club, another person who had known the applicant for over ten years and had been involved with him in sport, community and charity events; another person who had known the applicant for twelve years on both a personal and sporting basis; and a person who knew him for over twenty years through rugby league clubs who described him as a man of great repute and integrity. All of these people supported his application for a working with children check clearance. We have had regard to those references.
We have also taken into account the applicant’s submissions in these proceedings, both written and oral.

Any relevant information in relation to the applicant that was obtained in accordance with section 36A (s 30(1)(j1))

There is no evidence that any relevant information was obtained in accordance with section 36A of the Child Protection (Working with Children) Act.

Any other matters that the Children’s Guardian considers necessary (s 30(1)(k))

We have considered the Children’s Guardian’s submissions, both written and oral, and the matters raised in them.

Conclusion

Taking all of the evidence into account, we are satisfied that the applicant poses a real and appreciable risk to the safety of children. Our main reason for reaching this conclusion is our findings that there is a significant possibility that the applicant sexually assaulted two female children in respect of whom he was in a position of authority and power. That gives rise to a real risk that he will take advantage of a position of authority in the future, without regard to a child’s welfare, either by sexually assaulting a child, or in some other way which is detrimental to a child, physically or emotionally.
We do not accept the applicant’s submission that, even if there was some substance to the allegations made by the stepdaughter, it would not impact upon the psychiatric assessment of risk. He submitted that Dr Nielssen was clear that, regardless of whether the allegations were true, the applicant was of low risk to children. It does not appear to us, from Dr Nielssen’s second report, that he considered the position that the allegations made by the stepdaughter were true. We have taken Dr Nielssen’s opinion about risk into account, but have treated it with caution, for reasons given above. We have also had regard to his opinion, which we accept, that the probability of sexual offending declines with age. However, given our findings that there is a significant possibility that the applicant engaged in sexual conduct with the teenage girl less than ten years ago, and sexually assaulted the stepdaughter, we are satisfied that the applicant poses a real and appreciable risk to the safety of children.
We have also taken into account that, even if there is no possibility that the allegations of the teenage girl or stepdaughter were true (contrary to our view), the applicant’s conduct in respect of the teenage girl placed her safety at risk.
In these circumstances, it is not necessary for us to consider whether 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 (Child Protection (Working with Children) Act, s 30(1A). However, for completeness, we are not satisfied that a reasonable person would do so. In our view, a reasonable person, being aware of all the evidence which led us to conclude there is a significant possibility that the applicant sexually assaulted his stepdaughter on multiple occasions and a teenage girl on one occasion, would not allow his or her child to have direct unsupervised contact with the applicant for that reason.

Orders

We make the following orders:

The non-publication orders made on 6 June 2019 and 30 August 2022 are vacated.

The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or alleged victim of the applicant, is prohibited.

Parties have liberty to apply to vary Order 2 within 14 days of the date of these orders.

The decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance is affirmed.

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

Registrar

Decision last updated: 06 September 2023

Medium Neutral Citation:	DVR v Children’s Guardian [2023] NSWCATAD 240
Hearing dates:	21 April 2023; Further submissions filed by 30 May 2023
Date of orders:	5 September 2023
Decision date:	05 September 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy (Senior Member) Prof J Goodman-Delahunty (General Member)
Decision:	1. The non-publication orders made on 6 June 2019 and 30 August 2022 are vacated. 2. The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or alleged victim of the applicant, is prohibited. 3. Parties have liberty to apply to vary Order 2 within 14 days of the date of these orders. 4. The decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance is affirmed.
Catchwords:	CHILD PROTECTION – Refusal of application for working with children check clearance – Whether applicant poses a risk to the safety of children – Whether there is a possibility that applicant engaged in sexual conduct with children as alleged
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Cases Cited:	Children’s Guardian v BRL [2016] NSWSC 1206 Children’s Guardian v CF1 [2020] NSWSC 1673 Children's Guardian v CXZ [2019] NSWSC 1083 CPO v Children’s Guardian [2017] NSWCATAD 149 CVE v Children’s Guardian (No. 2) [2017] NSWCATAD 371 CXZ v Children’s Guardian [2020] NSWCA 338 Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 Office of the Children’s Guardian v DVR [2022] NSWSC 1036
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DVR (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Wilson (Applicant) M Higgins (Respondent) Solicitors: Aubrey Brown Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00138768
Publication restriction:	The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or alleged victim of the applicant, is prohibited.