EHL v Children's Guardian

[2021] NSWCATAD 211

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EHL v Children’s Guardian [2021] NSWCATAD 211

Hearing dates:

8 December 2020 and on the papers
Submissions closed 16 February 2021

Date of orders:

20 July 2021

Decision date:

20 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
Dr J M Green, General Member (Community)

Decision:

(1) The decision of the respondent dated 2 April 2020 to refuse the applicant’s Working with Children Check Clearance is affirmed.

(2) The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v Office of the Children's Guardian [2014] NSWCATAD 111

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336

Children’s Guardian v CKF [2017] NSWSC 893

Children's Guardian v CXZ [2019] NSWSC 1083

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CXZ v Children’s Guardian [2020] NSWCA 338

Jones v Dunkel [1959] HCA 8

M v M (1988) 166 CLR (HCA)

Makita v Sprowles NSWCA [2005] 305

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

R v Commission for Children and Young People [2002] NSWIRComm 101

Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Texts Cited:

Nil

Category:

Principal judgment

Parties:

EHL (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
G Foster (Applicant)
A Douglas-Baker (Respondent)

Solicitors:
Abad and Villanueva Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00122920

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a real and appreciable risk to the safety of children.

2. The applicant applied for a WWCCC on 26 February 2019 seeking the clearance for the nominated area of Youth Worker as the relevant child related employment sector. Pursuant so s 15 (4) of the Child Protection (Working with Children) Act 2012 (the ‘Act’) the respondent was required to conduct a risk assessment of the applicant, as there was a disclosed matter in his history which was listed in clause 1 (1) (b) of Schedule 1 of the Act. That matter related to the applicant being charged by Police with various offences in the nature of assaults and acts of indecency where his adult daughter was the victim. The fact that Police had charged the applicant was sufficient to mandate a risk assessment under the Act. Ultimately the charges against the applicant were withdrawn and dismissed at Court.

3. In conducting their risk assessment the respondent imposed an interim bar on the applicant on 5 April 2019. After considering all of the evidence and material they had obtained in the assessment, the respondent advised the applicant on 16 March 2020 (13 months after receiving the application) that they proposed to refuse his application for a clearance. After receiving submissions in response to the notice of proposed refusal, the respondent finalised their assessment and refused the applicant’s application for a WWCCC on 2 April 2020.

4. On 21 April 2020 the applicant applied for administrative review by the Tribunal.

5. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant remains a real and appreciable risk to the safety and well being of children and young persons. As a result of the finding the decision of the respondent will be affirmed.

Background

6. The Applicant in these proceedings is referred to as "EHL". EHL is the applicant's pseudonym used in these proceedings in conformity with the order referred to at [7] (below).

7. On 3 June 2020 by consent in chambers an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Jurisdiction of the Tribunal

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

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well being of children to be paramount consideration

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

9. The Notice of Refusal was issued under s 20 (3) of the Act was issued on 2 April 2020. The applicant stated in his application that he was notified of the decision on the same day. On this basis, the application for administrative review filed 21 April 2020 was lodged within the required period and as a result his application for administrative review has been received within time.

The application for administrative review

10. The grounds of the substantive application (in summary) are:

The Children’s Guardian erred in making their decision that the applicant poses a real and appreciable risk to the safety of children for the following reasons:

1. The Children’s Guardian accepted the truth of the allegations notwithstanding that the allegations were:

a. denied by the complainant;

b. not otherwise corroborated or supported by any other independent firsthand evidence or witnesses; and

c. ultimately withdrawn by the police.

Such acceptance in the face of the denials which confirms the police investigations did not occur, and / or were highly questionable with a reasonable alternative basis (i.e., that the complainant was coerced into knowingly making the false complaints under duress by her mother) demonstrates that the decision was unreasonable.

The Children’s Guardian did not accept the denials of the complainant denying that the incidents occurred, instead preferring to find on the balance of probabilities that the alleged behaviour did occur.

(The applicant then lists eight instances where the respondent failed to give appropriate weight to the evidence before them in reaching their conclusion.

The applicant submitted that the decision as a result was against the weight of evidence).

11. More detailed grounds were provided in written material submitted by the applicant.

12. The issue to be decided by the Tribunal is whether on the balance of probabilities the applicant poses a risk to the safety and well being of children. In reaching this position the Tribunal is required to traverse section 30(1) and s 30 (1A) of the Act and determine the correct and preferable decision. In addition, in reaching that position we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. Risk is determined at the time of the decision made by the Tribunal so in that regard the Tribunal is determining an applicant’s current risk.

The working with children legislative scheme

13. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

14. 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 Act: s 4 of the Act.

15. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

16. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1)(b) of the Act). A child related role is set out in s 6(3) of the Act.

17. Other provisions of the Act deal with assessment requirements, which concern matters specified in Sch 1 of the Act and such persons are subject to a risk assessment under the Act. The Act does not limit the circumstances in which a risk assessment can occur, (s 15(3)). The applicant in these proceedings was subject to a risk assessment as the respondent identified matters listed in Sch 1 of the Act as referred to at [2] above.

18. Part 4 of the Act deals with reviews and appeals. Section 27 provides for an application to the Tribunal for administrative review of clearance decisions. The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

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

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person’s employer.

19. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Section 30(1) of the Act 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.

Burden of Proof

20. The jurisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

21. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

22. An application pursuant to s 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. However, there is no statutory presumption that the applicant is a risk to children unlike an applicant for an enabling order under s-28 of the Act.

23. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

24. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

25. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

26. We note that since the cases referred to above ‘risk’ has now been given a statutory definition in Act at s 5B by reference to ‘risk to safety of children’.

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

The hearing

27. The matter was heard over one full day with the remainder of the matter dealt with on the papers. Due to the COVID 19 pandemic the hearing occurred by AVL and telephone.

28. The applicant gave evidence at the hearing, as did his expert report writer Dr Powell.

Written Evidence

Applicant’s written material

29. The applicant filed a number of written items in support of his application.

1. Exhibit ‘A 1’: the application for administrative review,

2. Exhibit ‘A 2’: the applicant’s 131 page bundle (which includes the report of Dr Powell) filed 6 July 2020.

3. Exhibit ‘A 3’ Tabs 4,5,6,7,8,9, and 10 from the respondent’s s 58 documents (exhibit ‘R-1’).

4. Exhibit ‘A 4’ supplementary bundle (Photographs / screen shots / greeting cards)

The applicant filed written submissions on 4 November 2020, and 25 January 2021.

Respondent’s written material

30. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under s 31. The respondent also filed detailed written submissions dated 21 October 2020, 15 December 2020 and 11 February 2021. Over 1000 pages of material were before the Tribunal.

Brief history of relevant matters

31. The applicant is the father of two adult children, a son and a daughter. The Tribunal understands that the applicant and the mother of the children are divorced. In May 2017 the applicant was charged by Police with a number of offences in the nature of indecent assaults and acts of indecency where his adult daughter was the victim. Because these alleged matters occurred in the context of a family relationship they were also characterised (where relevant) as domestic violence offences under the Crimes (Domestic and Personal Violence) Act 2007.

32. The matters relating to the charges were alleged to have occurred during the period February 2016 – March 2017 when the victim was aged 19 -21 years. The circumstances of the charges are as follows:

• Intimidation Charge: December 2016 applicant seated on lounge in home, daughter walked in and applicant said ‘come here and cuddle me’, and ‘kiss me, kiss me’, and the applicant pouted his lips. Daughter frightened and went to bedroom.

• Act of indecency Charge - DV: June 2016 daughter arrived home from university, applicant lying on lounge, asked daughter to cuddle him, daughter reluctantly did, applicant gestured daughter to put her head on his chest and lay with legs over applicant’s knees, daughter looked down and saw an erection. Applicant noticed erection and said: ‘It’s not what you think’. Daughter uncomfortable and left room.

• Five Act of Indecency charges: Between February and March 2016 applicant kissed daughter on her buttocks; between July and August 2016 applicant touched / stroked daughter close to her breast area; between July 2016 and December 2016 applicant kissed daughter on neck kissing all way down back to buttocks; between August 2016 and November 2016 applicant kissed daughter on her buttocks; between November 2016 and December 2016 applicant kissed daughter on her buttocks.

33. The circumstances of aggravation elements of the offences were withdrawn by Police as the prosecution took the view that the alleged circumstances of aggravation were insufficient to constitute aggravation for the purpose of the Crimes Act 1900. The Prosecution had argued that as the daughter lived at home and was reliant on her parents to drive her around then she was under their authority, and as a result creating circumstances of an aggravated offence because the alleged perpetrator was in authority over the victim. These issues of aggravating circumstances to the offences fell away as a result.

33. The daughter went to Police with her mother and the daughter provided her first police statement in May 2017. The mother remained present at the daughter’s request while the statement was taken and clarified a few matters in the process with the daughter. From this statement it is apparent that at the relevant time (from March 2017) the applicant had been living in the garage at the family home as a result of a family intervention (concerning attempted counselling around the applicant’s alleged sexualised behaviour). There were also issues with the parents’ marriage that the family was trying to address.

34. The statement also refers to text (SMS) messages between the daughter and the applicant concerning her views on the applicant’s behaviours (wanting cuddles, coming into her room etc). The statement refers to the daughter viewing the applicant’s behaviour as a ‘sexual thing’. References to kisses on her neck in the kitchen while each were preparing food as being uncomfortable behaviour from the daughter’s perspective are in the first statement.

35. The statement makes further references to the applicant coming into the daughter’s room and ‘attempting to get under the blankets of the single bed with her between July and December 2016. Further references were made to the applicant lying on the bed from behind and a ‘spooning’ position with kisses down her back from her neck.

36. There is a reference to the daughter raising her concerns about the applicant’s behaviour with her then boyfriend in late 2016, saying that:

‘I think my dad wants to have sex with me’ (First Statement [33]).

38. The statement refers to the text SMS’s between the daughter and the applicant. These were addressed in some detail in the hearing. The daughter believed that they were sexual in nature and provided copies to Police.

39. SMS messages on 10 February 2017 were viewed by the daughter as sexual in nature concerning the applicant’s concerns that the daughter did not want to hug him and the daughter explaining that she did not want to engage in this behaviour and that she viewed it as sexual and that the applicant continued to play down her concerns.

40. A further Police statement was made a couple of days later in May 2017 (without the mother present). That statement elaborates on some of the verbal exchanges between the applicant and his daughter.

41. Between the two statements being given by the daughter, the mother made a statement to Police. That statement refers to her concerns about the SMS content. The mother told Police that she looked into how to arrange counselling and a family intervention and located a professional on the internet. The statement refers to the applicant attempting to minimise his behaviour during the intervention with the professionals and family members.

42. Later in May 2017 Police obtained a statement from a third party (friend of the daughter) who corroborates that the daughter disclosed to them in late January 2017 the matters about the applicant, namely that she believed that the applicant’s behaviour was inappropriate (especially for a father and daughter) and a concern for his mental health. The friend also referred to their concerns about the impact of the applicant’s behaviour on the daughter.

43. The applicant had been arrested by Police on 8 May 2017 but was not questioned as he wanted his Solicitor to be available.

44. In December 2017 the daughter made a third statement to Police whereby she substantially retracted many of her earlier allegations claiming that she was depressed and had anxiety at the time. The daughter said that the statement was inaccurate as it was tainted by her mother and that it held little or no truth. The daughter claimed that she did not consider herself assaulted in anyway and that her mother was pushing for Police charges against the applicant ever since the mother found out that the applicant wanted a divorce.

45. Whilst the applicant was charged with the offences as set out at [32], when the matter went to Court the daughter sought an application under the Evidence Act 1995 (NSW) objecting to giving evidence for the prosecution. The daughter told the Court that she believed it would harm her mental health and that she wanted to give her family the best chance of recuperating and that this would be diminished if the Court matter proceeded. The Magistrate decided to proceed on the basis that the matters raised by the daughter were outweighed by the desirability of having such serious matters proceed.

46. The Police witness gave evidence and was subject to cross-examination. Various exhibits were tendered including the SMS messages between the applicant and daughter. The matter was adjourned part hard. The day before the second sitting of the Court the daughter sent an email to the presiding Magistrate outlining her personal circumstances including her mental health and current medications related to the impact of the proceedings on her. Attached to the email was a Hospital Discharge Summary indicating that the admission related to the daughter having presented with suicide risk (evidence of self harm) related to being asked to give evidence. The matter was adjourned (without proceeding further) as a result of that information.

47. The Police Prosecutor then reviewed the matter and noted the reluctance of the daughter to attend Court, and that the Police officers who dealt with the daughter were of the view that she would continue to obtain medical certificates to excuse her attendance at Court. On that basis and the fact that the daughter had continually asked for the charges to be withdrawn the prosecution elected to withdraw the remaining charges, and they were subsequently dismissed on 12 November 2018.

48. The Apprehended Violence Order (AVO) applications that were in place since the applicant was charged with the offences were dismissed at the time of the withdrawal of the charges as no evidence was offered for the AVO’s continuation.

49. The applicant’s daughter provided various statements positive to him in the years following the withdrawal of the criminal charges. A statement issued on 31 August 2019 in support of the applicant’s WWCCC application contains the following:

The charges against my father were completely false and that is why for the past two years I have been attempting to make the truth known, even with great retaliation from my mother and the police. My father is not a risk to anyone and never was.

50. The applicant provided an expert report from Pastor Peter Powell Consultant Psychologist dated 16 January 2020 in support of the application. That report concludes that the applicant:

Does not indicate, on any psychological criteria, any sexual interest in children. He does not indicate any distorted abusive attitudes towards women or children. There are no indications of paedophilia.

Applicant’s evidence at hearing

51. In evidence in chief the applicant told the Tribunal that he was currently unemployed.

52. In cross-examination the applicant said that he requires the WWCCC for youth work and more recently for what he referred to as a community services check generally. The applicant said the work was in the nature of ‘Church work’ and observed that WWCCC’s have become pervasive and to illustrate this gave an example that in his experience a WWCCC was necessary to enrol in a theology course of study irrespective of children being involved in any way in the course.

53. The applicant was asked what his goals were in the area of youth work. The applicant said that he was seeking to attain a Diploma in Community Services. He said that he had significant experience in managing children and young people and had previously worked with the Wesley Dalmar non-government organisation (NGO) in the area of policy work. The applicant advised that he had previously taught staff at Wesley Mission in respect of child protection matters.

54. The applicant was asked when he was last employed doing social work or community work with adults. The applicant advised that he had worked with adults at (an inner city homeless) Lodge for 10 years until a date in 2017.

55. The applicant was asked about the offences that he was charged with in respect of his daughter, and the respondent noted that the five ‘aggravated’ offences were withdrawn for legal reasons. The applicant said that he was not fully across what the charges were and why they were withdrawn. However, in respect of the reported complaints the applicant said that he may have said to his daughter ‘come and give daddy a kiss. The applicant said that this was a common occurrence in the home and was at times directed at his son, his spouse and the family pet. The applicant conceded that he might have ‘pecked’ his daughter on the lips as a very young child (three-year-old) but other than that he denied that kissing his adult daughter on the lips ever occurred. The applicant denied ‘pouting’.

56. When asked about the incident that was said to have occurred when his daughter was returning from a friends wedding in December 2016 (as set out at [32] point 1) the applicant said that his daughter was a bridesmaid for the wedding and that he had been supportive of this. The applicant denied that he said ‘come here and cuddle me, kiss me, kiss me’, or that his daughter was frightened. The applicant said that the conversation was along the lines of ‘come here and sit with me and talk with me’. The applicant conceded that in that context he probably said something along the lines of ‘come here and give me a cuddle’, or ‘a hug’. The applicant denied that he would ever have said ‘kiss me, kiss me’, and that if he said anything it would have been ‘come and give me a kiss’. The applicant said that these words were common greetings in the house.

57. When asked about the charge relating to committing an act of indecency – when he was lying on the lounge, the applicant said that lying on the lounge was a common occurrence in the house. When asked about the evidence of him having an erection the applicant denied this. When asked whether it happened the applicant said ‘no’. When asked about his daughter stating that she was uncomfortable (and as a result left the room), the applicant said that he could not recall that or speak to that. The applicant said that ‘if she was thinking that in her mind then I cannot speak to that.’

58. The applicant was then asked about the allegations of kissing his daughter on the buttocks. The applicant said that he had kissed her on the buttocks on two occasions, both fully clothed, once in the kitchen and once in the bathroom when she was brushing her teeth.

59. The applicant was asked about the allegations concerning being in his daughter’s bedroom. The applicant said that the general routine as to wake people in the family up when he got home from work (nightshift). The applicant said that kissed on the head, back and buttocks. He said that this happened on two occasions. He said that he had kissed his adult son on the neck and had ruffled his hair in this context. He said that his son is ‘bigger and heavier’ than him. The applicant said that at time both his son and his daughter would ‘rumble’ him and that this was part of the general ‘horseplay’ that would happen in the home.

60. The applicant was asked whether he agreed that in at least one occasion he had laid down on his daughter’s bed with his chest towards her back, and ‘spooned her’. The applicant said that on one occasion he had laid next to his daughter and placed his hand on her stomach, but only to rub her, and not for 20 seconds as had been alleged. The applicant said that he ‘wouldn’t have gone and put my hand on my children’s tummy and left it there.

61. The applicant was asked about the allegation that he had kissed the applicant’s head, cheek and back when she was 19. It was put to the applicant that he had made all of these contexts up for this kissing and touching behaviour and that he had made up the ‘wake up’ evidence. The applicant denied this.

62. The applicant was asked about some of the earlier incidents, specifically kissing the daughter on the bottom in the bathroom when the daughter was brushing her teeth. The applicant agreed that his daughter had said ‘oh dad, don’t do that’… ‘as I don’t like it’. The applicant said that as a result of this conversation he stopped. In respect of the earlier similar incident in the kitchen the applicant said that his daughter just ‘jumped away’, but that she did not say anything. The applicant said in his evidence that these matters which he had spoken about were all very brief interactions and that they were part of the general horseplay in the house. Counsel suggested that due to the estrangement of the applicant and his wife the dynamic in the house had had changed.

(The following text / SMS references from the schedule of Texts include only the last three digits of four digit reference as the first digit is unclear)

63. The applicant was taken to the SMS messages between him and his daughter.

64. Text 112 in the respondent’s evidence Exhibit ‘R-3’ at page 339 said:

(Daughter) come lay with me on the couch. I want to kiss you and feel your body next to me.

Counsel put it to the applicant that the language was sexual. The applicant disagreed and said that it was normal interaction in the house. The applicant said that his daughter sent the following text (after the applicant repeated his text above) asking’ if he wanted a coffee’.

65. The applicant was asked about texts at pg 342 of ‘R-3’ at entries 599 – 604 inclusive. Counsel suggested that these texts showed that the applicant’s daughter was trying to distance herself for him.

66. The applicant was taken to SMS entry 286 and it was suggested by Counsel that the family dynamic had changed. The entries 286-290 were as follows:

286: (X) come lay down with me, show me you love me. Why are you so uncomfortable with me you used to be different.

287: (X) come lay down with me, show me you love me. Why are you so uncomfortable with me you used to be different.

288: I’m doing work for college dad, go hug Chibby (pet rabbit)

289: That hurts. You don’t love me really, you speak about me like something out of a kids book.

290: That’s not how it works dad. No I’m not going to hug you on a 40 degree day, I already told you I don’t like hugs. You have a warped view of love. Showing love to someone is about care and is actually taking interest in their lives. Why don’t you spend time with us as a family? …

67. Counsel for the respondent questioned the applicant about the following SMS exchanges at entries 293, 294 and 295.

293: … You may not think so but I have always been someone who loves by touch. That’s why your mum and me grew apart many years ago.

294: Well go reach out to mum and buy a new rabbit OK. You’re not a 12 year old that doesn’t understand that other people have different love languages than you ok, you never hugged us growing up and now I’m not interested. Anyway I’m applying for conferences now, why don’t you come to one of the Christian ones at my college. That’s much more loving.

295: It wasn’t appropriate to hold you close when you were younger, you’re wrong to think I didn’t want to. The way I dealt with the struggle of wanting you but forcing myself not to- and I know you used to want me – was to distance myself. You were too young, I didn’t want in any way to take advantage. But you’re always in my heart.

68. The applicant said in his evidence after these texts were read onto the record, that he was working seven days a week when the children were younger and was on anti-depressants also at that time (when the children were young). He said that his wife had breast cancer at that time and he came to focus on the changes in their relationship. He said that he desperately wanted to reach out to his daughter but not concerning sexual intent.

69. Counsel questioned the applicant about his word from SMS 295 that ‘it wasn’t appropriate to hold you close when you were younger, you were wrong to think that I didn’t want to,’ and asked what he meant by those words. The applicant said that he held his daughter in his heart and wanted her to understand that he wanted to protect her and care for her.

70. The applicant was taken to SMS entry 455.

455: You’re being trivial with me. And you’re hurting me. Its funny to you. Its cruel knowing how I want you in my arms, and you making fun, when you were younger you loved me, how did you switch it off.

456: Dad, you have mum for that. Why don’t you try making an effort with her? I am not a young child anymore...

71. The applicant was asked what he meant by the words ‘its cruel knowing how I want you in my arms’. The applicant said that he had been communicating to his daughter that what he wants is affection, not sexual but affection for her. Counsel suggested to the applicant that the words ‘I want you in my arms’ are the words of a lover, not a parent for a teenage or young adult daughter. The applicant said that he disagreed with that characterisation and that it was only affection.

72. Counsel took the applicant to the daughter’s words ‘you have mum for that’. The applicant’s evidence was that his daughter was starting to misinterpret his actions and intentions, especially when she says that he needs to go to mum for that.

73. Counsel took the applicant to a long detailed SMS (Entry 470) from the material tendered before the Tribunal and suggested that these were the clear words of the applicant and as such there was no scope for his daughter to be misinterpreting him.

470: Ok (X), when I lay on your bed and hold you close when I kiss you. (X) what do you think that is? If its just a physical thing I’m after, don’t you think I can get that from anywhere? I love you. I think about you all the time for the last three years I’ve been torn inside because I have tried i [sic] cope with my feelings for you. I don’t have your mum my heart changed for her. I don’t like being intimate with her, she destroyed that a long time ago. You don’t know things I struggle and get hurt that’s why you see me act the way I do. When you look upset with me or even hate in your eyes and say go away when I’m giving you my heart it hurts. I don’t like seeing you upset but I pine for you, so what do I do? Upset you more by trying again to keep away and upset you less? I don’t think you’ve really loved me. You can’t feel physically uncomfortable and love me at the same time. I get touched affectionately all the time by others. I’m always careful how I respond but you are my flesh and blood and you look at me in a bad way when I get close to you. I don’t know what to do. If I can take it back, what I DIDN’T do when you were younger I would. Now you’ve grown up and you have no intimate affection for me. That’s why I want to have one bedroom place of to lie alone near the beach – but even when I dream about that I see you on the couch lying next to me or walking on the beach with me... at work I think of us going riding together climbing the mountain going to other places.

74. Counsel also referred the applicant to a text / SMS where he asked his daughter to come down to the garage (where he was living) and that these words could only be interpreted one way.

485: Why don’t you come downstairs tomorrow morning, close the garage door and let me hold you and kiss you. Don’t you want to touch me, how can you be so ok not wanting to feel yourself against my chest? Where’s the love. You treat me like a stranger, you avoid me. Maybe you don’t have it in your heart for me, maybe its for some imaginary person you wish was real, but the real one has been reaching out to you for years and you have pushed me away. (x) will we grow closer or more apart. I don’t know how you can go for weeks for months and longer not reach out to me in any intimate way except that maybe you don’t love me in a real way.

75. Counsel suggested to the applicant that these were not the reassuring words of a father to his daughter but clearly something else.

75. Counsel took the applicant to the SMS entries 019,020 and 022 on page 359 of the Exhibit.

019: You don’t have any feelings for me honestly?

020: You know over the last few years I’ve been struggling with feeling down. They think I’m taking meds because I’m depressed because of work, but the truth is I’ve been struggling so long with my feelings for you.

022: You haven’t had any feelings for me? None at all?

77. The applicant disagreed with the assertion put by Counsel that his intention was to communicate romantic love for his daughter. However, the applicant conceded that is daughter may have interpreted it that way. He said in his evidence that ‘he was just being a good father’. Counsel again suggested that objectively these texts could be considered and viewed as sexual communication.

78. At page 360 of the Exhibit the applicant was taken to a text where his daughter sets out her concerns.

045: Dad you’re not being clear and you come across as sexual and it makes me vey uncomfortable and upset. Don’t you understand?

79. At page 369 of the Exhibit Counsel suggested that the applicant’s real intentions from his earlier language were clear with a reference to ‘not wanting to open certain doors’.

757: I don’t want us to be distant from each other. I want you to be confortable with me and not avoidant. I understand that you don’t want to open certain doors and I respect that. But I love you deeply and want us to be close in only a way you are comfortable and happy with.

80. Counsel asked the applicant what he meant by the words ‘not wanting to open certain doors’? The applicant said that he was afraid that his daughter wanted to have sex with him he said that if that was what she understood by his intentions then he would step or move back. The applicant said that he realised previously that she was uncomfortable. However he tried to find out why. The applicant said that now that she had said what she did, that she was uncomfortable, it was clear to him.

81. Counsel asked the applicant why he had counselling session with Dr Powell and how many. The applicant said that he had three sessions in his office. When asked whether his daughter attended the sessions the applicant conformed that she did. The wife however did not attend. The context of the counselling being that the wife approached Dr Powell with the Texts. She believed that they raised sexual allegations concerning the applicant and Dr Powell attempted to arrange a family intervention.

82. The applicant was asked whether he heard his wife tell Dr Powell that he was sexually abusing his daughter. The applicant did not but believed that those references had gotten back to Dr Powell possibly by the applicant’s sister who became involved in the intervention. The applicant said that he was unsure about where the actual allegations came from. The applicant was taken to a reference to him saying that ‘if she (the alleged victim) was not my daughter then it would be OK’. The applicant said that this arose in the context of legal discussions concerning the charges.

83. The Tribunal was told about the ‘rules’ that the applicant imposed post counselling. Cross-examination occurred around the SMS texts on the applicant’s discussion with his daughter about disclosures to third parties. The texts indicate that the applicant is seeking information about who his daughter spoke to about matters. Counsel suggested to the applicant that the SMS texts show that he was concerned about who his daughter had raised matters with outside of the home. The applicant denied this saying that his concern was that his daughter might say things that were not true.

84. Counsel suggested that the applicant was more concerned with the damage to himself rather than any damage to his daughter. The applicant denied this and said that he was concerned about the family impact and the impact on everyone. Counsel further suggested that the applicant was only concerned about the matter being referred to Police. The applicant said that he was concerned about a false allegation being made and it ‘going out into the community’.

85. It was put to the applicant that his real concern was that he had touched his daughter inappropriately and that those matters would be raised with Police. In support of this issue Counsel took the applicant to the text entries at 214 at page 372 of the Exhibit.

214: (X) please tell me if I’ve ever done something bad to you sexually before? Please I want to know.

86. Counsel suggested that the applicant’s concerns were about whether the daughter would report matters to Police or others that she had disclosed matters to might do so. The applicant again respondent that he was worried that his daughter might think that they had done something sexual.

87. The applicant was also questioned about his conversation with the informant police officer. He said that he could not recall the actual statement concerning ‘blurred lines between emotional intimacy’, but he said that one could see from his texts that it was said in that context.

88. The applicant was also questioned about his relationship with his son and contact since the divorce. The applicant said that he had limited contact with his son since the divorce. The applicant stated that on the other hand the daughter is estranged from her mother.

89. In respect of the conclusion of the Court matters, the applicant said that he saw his daughter at Court on 31 August 2017 and she made representations to the Police Prosecutor. The applicant said that the daughter also sought to have the AVO changed.

90. Counsel suggested to the applicant that he puts forward all of his problems as being down to a lack of proper interpretation (or misinterpretation) by others.

91. There was no re-examination by the applicant’s Counsel.

92. The Tribunal asked a number of questions of the applicant consistent with the provisions of s 38 (2) of the CAT Act. The Tribunal asked the applicant to summarise in his own words the basis of the matters that brought him before the Court and now the Tribunal in respect of his WWCCC. The applicant said that he ‘stuffed up in trying to reach out to his daughter’.

93. The applicant was asked about his occupational matters at the time of the events central to these proceedings. He said that he went to Bible College in an inner western suburb of Sydney around 9:00am or 9:30am and did outreach work at the University.

94. The applicant said that a workplace issue arose at the homeless Lodge where he was working and there were a number of staff meetings around this. He said that he took two weeks off and then tried to deal with the issue through Human Resources.

95. The applicant said that as a result he had been on workers compensation from around August 2016 to January 2017. The applicant said that he was medicated for these matters, initially with anti-depressants prescribed by a Psychiatrist. Later as further issues arose concerning the legal matters he was prescribed Zoloft.

Evidence of Dr P Powell

96. In evidence in chief the witness stated that he had prepared a report dated 16 January 2012 for these proceedings. The earlier report of 2 August 2018 was prepared in relation to the Police matter.

97. The witness told the Tribunal that as of 30 November 2020 he had retired from practice and as a result could not provide any further reports or evidence post 30 November 2020 (ten days prior to this hearing). In addition the witness said that he no longer had any access to his papers since leaving practice in the last two weeks.

98. In cross examination the witness confirmed that he had never met the son of the applicant, but that he has met the applicant. He said that the ex-wife, daughter and the applicant’s sister had been involved in the intervention. The witness said that he conducted ‘assessment sessions’ rather than ‘counselling sessions.

99. The witness said that there would have been two or three sessions with the wife or the sister present concerning the applicant and his daughter together. The witness said that he would normally have four or five assessment sessions prior to commencing counselling sessions.

100. The witness said that the main focus of the sessions was on the content of the SMS Text messages and also the family structure. The witness said that he came to be involved because he was approached by the family (the sister of the applicant) to intervene in a crisis. The witness said that he viewed the text messages on a mobile phone and did not see them printed out until given the Tribunal papers.

101. The witness said that when he prepared the report it was mainly based on his own notes. At that time he did not have the Tribunal material. He said that he now has about 50-60 pages of notes concerning the proceedings. Counsel observed with the witness that approximately 1,000 pages had been filed with the Tribunal.

102. When asked whether the words ‘if it was not my daughter then it would be OK’ was ever said in his presence by the applicant. The witness said that he never heard this statement (or words to that effect) from the applicant.

103. The witness told the Tribunal that he was concerned that some of the material draws inferences that are unsubstantiated. The witness said that the victim (the daughter) recalled to him that she was ‘pushed hard by Police’ and ‘felt pressured’ by Police to go ahead with the case.

104. The witness agreed that he prepared his January 2020 report on the basis of the work that he did with the family a couple of years ago.

105. The witness was taken to [17] of his January 2020 report where there is a reference to the daughter being ‘grilled in Court by the police prosecutor and felt threatened leading to a period of hospitalisation for mental stress’. The witness agreed in cross examination that if the evidence was that only the Magistrate directly questioned the daughter in Court then so be it, and that his reference was in error and that the Magistrate had merely raised the matters about how she was feeling and proceeding with the matter, not the allegations.

Other evidence

106. The applicant filed a number of character references where the authors were not required for examination by the respondent. Two of the references come from colleagues at the accommodation Lodge run by the NGO where the applicant was previously employed. Both are positive of the applicant. Whilst the authors refer to observing the applicant’s professional boundaries neither are in a position to provide significant evidence concerning working with children and are broadly positive character references. As a result they carry some weight but not significant weight. One reference (‘M.T’) goes further with references to the daughter’s positive view of the applicant and conflating the Court outcome with a finding that the accusations were found to be false.

107. The applicant also provides a reference from his daughter dated 31 August 2019. The reference attaches the email that she sent to the Magistrate. The reference refers to a ’two year battle I had to correct the damage my mother’s lies inflicted on my father’.

Applicant’s written submissions

108. Both the applicant and respondent provided written submissions. No oral submissions were made at hearing due to time constraints other than a brief opening from each party prior to receipt of the oral evidence.

109. The applicant in their opening submitted that he had previously worked with children for many years without complaint. The applicant submitted that the complaint made by the adult daughter who was at all relevant times an adult and not a child. The complaint was made to police and the charges were withdrawn. The complaint was made in the context of interactions and tensions within the household at that time.

110. The applicant submitted that his daughter asserted in her third statement that she was under duress and recants all of her allegations. The applicant submitted that he and his daughter have a good relationship evidenced by her support of him in these proceedings and the material that he has filed showing his ongoing involvement in important events in her adult life. The applicant submitted that the Tribunal needs to focus on what actually happened not what the complainant at that time thought had happened. The applicant submitted that the interactions were not physical and not sexual. The applicant submitted that he has always denied the allegations but accepted that some boundaries had become blurred.

111. In written submissions the applicant referred to the three Police statements made by the daughter. The applicant submitted that for the first two statements the reliability of the daughter is unresolved and remains a critical issue in the face of the applicant’s denials. Reference was made to the daughter’s reference in her third statement that the first two statements were made when she was ‘mentally ill. Suffering from anxiety and depression and extremely emotional due to the treatment of me by my mother over the past months’.

112. The applicant submitted that the first and second statements of the daughter (which were the sole basis for the charges) were produced as a result of the mother’s duress and pressure during the course of the interviews, as well as perhaps a product of the daughter’s own mental health at that time.

113. The applicant relied on the report of Dr Powell to establish that he posed no risk to children and submitted that the respondent had not provided an independent expert to give counter evidence to Dr Powell’s evidence. Dr Powell’s evidence outlines that the daughter felt safe with her father and went to live with him in May 2018 until she got married 12 months later.

114. In summary the applicant submitted that the laying of the charges arose in a unique situation. The family was all living together in the same household, the complainant was the applicant’s daughter, and she was caught in an unhealthy role of mediator between the parents, during a clear marital breakdown between the parents that was palpable.

115. The applicant submitted that no finding of wrongdoing should be made against him on the balance of probabilities, nor should there be any lingering doubts or suspicion about the allegations. The laying of charges by Police was as a result of a flawed process (involving the interference of the mother), and should, be considered in light of the retraction. His character is otherwise flawless and without blemish and the character references positively attest to his good character.

116. The applicant also submitted that the allegations against him, even if true, could not provide any rational or logical basis to suggest that he has a tendency to be a risk to children because there is no connection between the circumstances of these events and children at large.

117. The applicant filed written submissions in response to the respondent’s submissions after hearing. These submissions sought to rebut matters submitted by the respondent. The applicant submitted that his written and oral evidence showed that any ‘’boundary crossing’ with his daughter was not sexual in nature but an attempt to not ‘lose’ his daughter in the context of a deteriorating family relationship.

118. The applicant submitted that contrary to the respondent’s submissions his expert Dr Powell did address the SMS messages in counselling sessions and that those issues were resolved between the applicant and his daughter (and to all parties except for the mother). The applicant also raised an issue about the content and expression of the language of the SMS texts directed to his daughter. The applicant submitted that as English is not his first or primary language that explains how some words that he may have been thinking of saying were not effectively translated into English. It was submitted that the Tribunal should considerer this cultural nuance as a reason for the applicant’s ‘desperate’ questioning of his daughter.

119. The applicant submitted that his expert Dr Powell addressed the issue of the daughter changing her police evidence in his report to the informant Police Officer. The submissions states:

(X) recognises the dilemma for the police when testimony is changed. I made her aware of the research that points to children and young people in abusive families changing their testimony in order to protect the family from further chaos. She claims this is not the case in this story, rather her confusion and mental-health stress resulted from the overwhelming emotional power and control of her mother.

120. The applicant submitted that the respondent had itself failed to call the daughter to give evidence or questioned her further during the assessment process. The applicant submitted that the respondent had not taken up the daughter’s invitation to speak directly about the circumstances of the charges. The applicant submitted that it was open to the respondent to have issued a summons for the daughter to give evidence at the hearing.

121. The applicant also took issue with the respondent’s general criticism of Dr Powell and his evidence. The applicant submitted that Dr Powell was qualified to make the appropriate assessment and regularly returned to his ultimate finding in their written submissions that:

(EHL) does not indicate, on any psychological criteria, any sexual interest in children. He does not indicate any distorted abusive attitudes towards women or children. There are no indications of paedophilia.

122. The applicant also submitted that the character references should be given some weight and these would enable a reasonable person to speak to the referees, Dr Powell and the daughter and form the view as Dr Powell and one of the referees had, that that the applicant does not pose a risk to children and would be comfortable leaving children in his care.

Respondent’s position / submissions

123. The respondent provided three sets of written submissions, one prior to hearing and one following hearing with a final set of closing submissions in reply responsive to the applicant’s final submissions. It our view it is not necessary to go into great detail about those submissions, except where they respond to issues raised by the applicant. Much of the submissions set out the law and the approach of the Courts to how matters are assessed under the Act. Having regard to the principles set out earlier in these reasons and referred to below, none of these matters are controversial.

124. One issue of some attention by both parties was the nature of Dr Powell’s evidence. The respondent submitted that the applicant’s submission that the respondent should commission a report to rebut Dr Powell’s evidence is misconceived. The respondent submitted that there is no obligation on it to obtain such evidence and that the relevance and weight of Dr Powell’s evidence should be dealt with on its own terms and consistent with Dr Powell’s evidence as to the material provided to him.

125. The respondent submitted that the opinion of an expert (if accepted) is only one piece of evidence that the Tribunal would use to determine risk. An opinion (as accepted) does not dictate the outcome of the matter as discharging the Tribunal’s duty on the application of the statutory term of risk.

126. The respondent submitted that the following statement from the daughter was of significance. In her email of 27 July 2017 to the informant Police Officer the daughter stated the following about the earlier statements:

The way the charges are written up although are factually true, the information was only given to shed light on his mental state. I did not consider myself to be assaulted in any way. I also believe as my dad had left me alone completely since our family intervention he will continue to respect those boundaries.

The respondent submitted that when read with this email the third statement could not be considered to be a recantation of the first and second statement.

127. The respondent also submitted that on the issue of the circumstances of the making of the daughter’s first two Police statements, the evidence of the informant Police Officer as to the circumstances, was tested at Court and was not further challenged. In addition, the second statement was made in the mother’s absence. Finally, the respondent submitted that the third Police statement of the daughter was not a recanting of the first two statements but rather contains generalised statements about how she now in hindsight, interpreted her father’s conduct and needs.

193. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. Again, as we are not making an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children, we are also not required to address this section.

Conclusion

195. For the reasons set out above, we reach the following conclusion.

196. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant currently poses a risk to the safety and wellbeing of children.

197. It therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

198. The application will therefore be dismissed.

Orders

1. The decision of the respondent dated 2 April 2020 to refuse the applicant’s Working with Children Check Clearance is affirmed.

2. The application is dismissed.

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: 20 July 2021