Ejv v Children's Guardian - [2020] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EJV v Children’s Guardian [2020] NSWCATAD 203
Hearing dates: 10 February 2020 and on the papers
Date of orders: 14 August 2020
Decision date: 14 August 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
S Davison, General Member
Decision:
1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, with the exception of the name of the psychologist who undertook a risk assessment of the applicant and officers of government agencies who provided information to the respondent in the course of her assessment, the publication or broadcasting of the name of the applicant and any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings is prohibited.
2. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the matters in issue is dispensed with and the matter is to be decided on the written submissions and the evidentiary material provided to the Tribunal.
3. The decision of the respondent, made on 31 May 2019, to refuse the applicant’s application for a working with children check clearance, is set aside.
4. In substitution a decision is made to grant the applicant a working with children check clearance.

Catchwords:
ADMINISTRATIVE LAW – Child Protection – review of decision to refuse application for a working with children check clearance – applicant subject to a risk assessment – risk assessment trigger events being charges of sexual assault and indecent assault of two children in 1987 – applicant acquitted of all charges - whether applicant a real and appreciable risk to the safety of children

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Costs in Criminal Proceedings 1967 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
CHB v Children’s Guardian [2016] NSWCATAD 214
CTM v Children’s Guardian [2016] NSWCATAD 280
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
M v M [1988] HCA 68; (1988) CLR 166 CLR 69
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
VQB v The Secretary to the Department of Justice [2013] VCAT 789
Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85
ZZ v Secretary, Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: EJV (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
T Anderson (Applicant)
M Higgins (Respondent)
Solicitors:
O’Brien Criminal and Civil Solicitors (Applicant)
NSW Crown Solicitor (Respondent)

File Number(s): 2019/00201073
Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, with the exception of the name of the psychologist who undertook a risk assessment of the applicant and officers of government agencies who provided information to the respondent in the course of her assessment, the publication or broadcasting of the name of the applicant and any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings is prohibited.
Note: A reference to the name of the applicant includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the identification of the applicant.

Reasons for decision

Introduction

The applicant, EJV, seeks administrative review of the decision of the respondent, the Children’s Guardian, made on 31 May 2019, to refuse his application, made under the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) for a working with children check clearance (clearance).
These proceedings involve the consideration of allegations of historic sexual offending against children and it is therefore appropriate that a non-publication order be made to protect the identity of the complainants. By consent, at a directions hearing on 18 July 2019, Senior Member Higgins made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), prohibiting the publication or broadcasting of the name of any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings, other than the name of any expert witnesses and officers of government agencies. In our opinion, given the nature of the information that is before the Tribunal, it is necessary to limit the exception to the name of the Forensic Psychologist who provided a risk assessment report of the applicant for the purpose of these proceedings and officers of the respondent and any government agency who provided information to the respondent for the purpose of her risk assessment and these proceedings.
The applicant had made his application for a clearance on 4 September 2018. He had been the holder of a clearance previously. However, his clearance was cancelled, in 2015, when he was charged with historical sexual offending involving both his adopted daughter and his youngest biological daughter. The alleged offending occurred in April 1987. The applicant was acquitted of these charges in March 2018. Notwithstanding that acquittal, because he had been charged with those offences (i.e. ‘an assessment requirement’), he was subject to a risk assessment under s 14 of the WWC Act: WWC Act, Sch 1, cl 1(1)(b).
The respondent, having undertaken a risk assessment under s 15 of the WWC Act was satisfied that the applicant posed a risk to the safety of children and on this basis was required to refuse, and did refuse, his application for a clearance: WWC Act, s 18(2).
There is no dispute that the 31 May 2019 decision of the respondent is an administratively reviewable decision by the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30; Administrative Decisions Review Act 1997 (NSW) (ADR Act), ss 7 and 9 and WWC Act, s 27(1).
It is accepted that, in its administrative review jurisdiction, the role of the Tribunal is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual matter and any applicable written or unwritten law: ADR Act, s 63(1).
At the commencement of the hearing of this application counsel for the respondent advised that the respondent:

did not support the applicant’s application for a clearance, nor did the respondent oppose his application for a clearance, and

did not seek to cross-examine the applicant, or Ms Jenny Howell, psychologist, who had undertaken a risk assessment of the applicant for the purpose of this application.

Given this change of position, with no additional evidence being elucidated at a hearing, we questioned whether the respondent had changed her view on the applicant’s risk to children, or was seeking to reconsider her decision the subject of review. We understood from counsel for the respondent that the respondent was not inclined to reconsider her decision. Hence, we have proceeded on the basis that the decision the subject of review is the refusal decision of 31 May 2019.
It is accepted that, in arriving at the correct and preferable decision, the first issue for determination is whether we are satisfied, having regard to the circumstances surrounding the alleged offending which gave rise to the assessment requirement, together with the other matters set out in s 30(1) of the WWC Act and the paramount consideration in s 4 of that Act, that, today, the applicant poses a real and appreciable risk to children if he were granted a clearance to work with children. If we are not satisfied that he poses such a risk, we then need to consider whether we are satisfied of the matters in s 30(1A) of the WWC Act, namely 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.

In determining risk, we are required to consider the allegations of sexual abuse that were made against the applicant, including the circumstances in which they were made and any determination that may have been made in regard thereto.
In this case, there are two sets of allegations of sexual abuse made against the applicant, both relating to events that are alleged to have occurred in 1987. The circumstances in which they were made are complex in that they arise in the context of a very acrimonious separation of two couples, known to each other, where the wife of one couple formed an intimate relationship with the husband of the other couple and where there was a heavily contested custody dispute over the children of one couple that involved both couples. The allegations have also been the subject of proceedings in the Family Court of Australia, in 1988 and 1989, and the NSW District Court, in 2018.
In summary, in this case, the evidence is that the applicant and his former second wife (‘second wife’) separated in December 1986 when the applicant’s second wife returned from Victoria, with her young children (the applicant’s adopted son, adopted daughter and his youngest daughter), to live with her parents in NSW. At that time, the applicant remained in Victoria. Prior to separating from the applicant, the applicant’s second wife had formed an intimate relationship with Mr A. The applicant and his second wife had become friendly with Mr A and Mrs A while they were living and working in Victoria. At the end of December 1986, Mr A and Mrs A also separated. Mr A then travelled to NSW, with his three young children, to begin a new life with the applicant’s second wife.
In April 1987, about four months after the applicant and his second wife had separated and Mr A and Mrs A had also separated, allegations were made by the applicant’s second wife that the applicant had sexually abused his adopted daughter and his youngest daughter. At the time, the applicant’s adopted daughter was 6 years of age and his youngest daughter was 3 years of age and they had each made disclosures of abuse when interviewed by a social worker, Ms SW.
At around the same time, Mr A and the applicant’s second wife made allegations that Mrs A and the applicant had sexually abused the children of Mr A and Mrs A. Those children were around the same age as the applicant’s adopted children and his youngest daughter and had been living in the same household as the applicant’s children at the time of some of the events comprising the allegations.
In 1988 and 1989, the allegations concerning the children of Mr A and Mrs A were the subject of contested custody proceedings, between Mr A and Mrs A, in the Family Court of Australia. The Court found that neither Mrs A, nor Mrs A and/or the applicant had sexually abused the children of Mr A and Mrs A as alleged.
In 1987, NSW police decided to take no action against the applicant in regard to the allegations involving his adopted daughter or the allegations involving his youngest daughter. The applicant’s second wife was granted sole custody of the children. In 2015, NSW Police re-interviewed and obtained statements from the applicant’s adopted daughter and youngest daughter and charges were laid. As we have noted, in 2018, the applicant was acquitted of all charges.
The allegations made against the applicant are serious. However, on the material before us, in particular the findings of the Family Court and the NSW District Court, we are not persuaded that the applicant did in fact sexually assault or abuse his adopted daughter, his youngest daughter or the children of Mr A and Mrs A. This does not mean that we have found that the applicant’s adopted daughter and youngest daughter have lied. Consistent with the findings of the Family Court Judge and the evidence before the NSW District Court, we accept that, in 1987, when they made their disclosures, they had a belief that they had been sexually abused. But we are not satisfied, on the evidence before us that anything done by the applicant led to the formation of that belief.
In accordance with s 30(1) of the WWC Act we have considered the remaining factors in that subsection. Following that consideration, which is set out below, we are not satisfied that the applicant poses a risk to children today.

Material before the Tribunal

At the hearing, the applicant relied on a large bundle (Ex A1) of material that he filed and served on 7 November 2019. Included in that bundle was:

the March 2018 judgments of the District Court Judge which provide reasons for the following:

findings of not guilty on all charges laid against the applicant that involved his adopted daughter;

findings of not guilty on all charges laid against the applicant that involved his youngest daughter;

the decision to grant the applicant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW);

the following expert reports:

two reports of Dr TA, a Paediatrician specialising in child protection and forensic medicine. Dr TA provided separate reports in relation to the applicant’s adopted daughter and his youngest daughter. Both reports were dated 15 December 2016;

a report of Dr TB, a Forensic Psychiatrist who provided expert evidence on the reliability of recovered memory. The report of Dr TB was dated 24 October 2017;

a report of Dr TC, a Medical Practitioner specialising in forensic medicine. The report of Dr TC was dated 31 March 2017; and

a report of Dr TD, Psychiatrist, who had also provided expert evidence on the reliability of recovered memories. The report of Dr TD was dated 9 April 2017;

the transcript of the evidence given by the applicant’s adopted son at the applicant’s trial in 2018;

the witness statement of the applicant’s adopted son, dated February 2018;

the May 1989 judgment of the Family Court in regard to a custody dispute between Mr A and Mrs A; and

a transcript of the voir dire evidence given by Mr A, on 14 February 2017, in a pre-trial hearing of the applicant’s District Court trial.

The applicant also relied on other material he had provided to the respondent during the course of the respondent’s risk assessment, together with a psychological risk assessment report, dated 6 December 2019, of Jenny Howell. That report was provided to the Tribunal in confidence. A copy was also provided to the respondent and her legal representatives. Included in the material provided to the respondent for the purpose of her risk assessment was:

a statutory declaration of the applicant, dated 17 December 2018, and

a statutory declaration of the applicant’s adopted son, dated 3 March 2015.

At the hearing, the Children’s Guardian relied on three bundles of documents. The first two bundles (Ex R1 and Ex R2) were filed and served on 26 September 2019, in accordance with s 58(1) of the ADR Act. As required under that section, the bundles contained a copy of the respondent’s statement of reasons for her interim bar decision and her final refusal decision: ADR Act, s 58(1)(a). The bundles also contained a copy of every document the respondent had obtained in the course of her risk assessment relevant to this application, which included information obtained from NSW Family and Community Services (FACS), the transcript of the applicant’s 2018 trial before the NSW District Court, the Victorian District Court, NSW Police and the applicant: ADR Act, s 58(1)(b).
The remaining bundle of documents (Ex R3) was filed and served on 19 November 2019. That bundle contained documents produced by the NSW District Court, under a summons issued by the Tribunal, at the request of the respondent. That bundle contained a further copy of the indictment presented by the prosecution at the applicant’s trial, a further copy of the ‘Case Statement’ of the prosecution and the police brief of evidence which included a copy of witness statements obtained by police in 2015 and 2016 and the expert reports of Dr TA and Dr TB. Also included in this bundle was a further copy of the 1989 decision of the Family Court. A copy of that decision had already been included in Ex R2.
Written submissions were filed and served by the applicant prior to the hearing. As we have noted, the respondent provided written submissions at the commencement of the hearing set down for 10 February 2020. On this day, after hearing from the parties we made orders for the filing of further written submissions by the respondent. A direction was also made that the respondent indicate whether the issues for determination in this application could adequately be dealt with, in the absence of a further hearing, by considering the material and written submissions filed and served: NCAT Act, s 50(2) and (3). A direction was also made for the applicant to file and serve written submissions in reply.
The parties made further submissions and agreed that the matters in issue could be adequately dealt with on the papers. In the absence of any objections, we formed the view that the matters in issue could be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal and dispensed with any further hearing.

The legislative scheme – WWC Act

The objects of the WWC Act are to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have a working with children check clearance: see WWC Act, ss 3, 8 and 9.
The paramount consideration in the operation of the Act is: ‘the safety, welfare and well-being of children and, in particular, protecting them from child abuse’: WWC Act, s 4.
Child-related work is broadly defined in ss 6 and 7 of the WWC Act. Once granted, a working with children check clearance is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].
Section 18 of the WWC Act sets out how the respondent is to determine an application for a clearance. For the purpose of this application, the relevant provision is as follows:

18(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

A clearance cannot be granted subject to conditions.
The term ‘risk to the safety of children’ is now defined in s 5B of the WWC Act as follows:

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

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

Section 14 of the WWC Act provides that a person is subject to a risk assessment under that Act if any of the assessment requirement triggers specified in Schedule 1 apply to that person (i.e. ‘an assessment requirement’). As we have already noted, it was the applicant having been charged with sexual offending, in 2015 that gave rise to the assessment requirement (i.e. trigger offences/incidents): WWC Act, Sch 1, cl 1(1)(b).
Section 15(4) of the WWC Act sets out the matters the respondent may consider in undertaking a risk assessment.
Where the respondent refuses to grant an applicant a clearance on the ground that she is satisfied, following a risk assessment, that the applicant poses a risk to the safety of children, s 27(1) of the WWC Act gives that applicant a right to seek administrative review, by the Tribunal, of the respondent’s refusal decision.
Where an application for review is made to the Tribunal, s 27(4) of the WWC Act requires the applicant to fully disclose to the Tribunal any matters relevant to his or her application.

In determining an application made under s 27, the Tribunal is required to consider the matters set out in s 30 of the WWC Act. These matters are similar to those the respondent could have regard to, under s 15 of the WWC Act, when undertaking her risk assessment.
Section 30 provides as follows:

30 Determination of applications and other matters

The Tribunal must consider the following in determining an application under this Part:
(a)   the seriousness of the … matters that caused a refusal of a clearance or imposition of an interim bar,
(b)   the period of time since those … matters occurred and the conduct of the person since they occurred,
(c)   the age of the person at the time the … matters occurred,
(d)   the age of each victim of any relevant … 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 … 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 has adopted the approach taken by the Victorian Supreme Court, under a similar legislative scheme, in regard to the application of s 30(1A) of the WWC Act: see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That approach is one where the matters prescribed in s 30(1A) only need to be considered once the risk factors in s 30(1) have been considered and a determination has been made in regard to risk. Hence, if it is satisfied that the applicant poses a risk to the safety of children, there is no need for the Tribunal to go on and consider the matters in s 30(1A).

Background to the alleged sexual abuse

The applicant is 68 years of age.
It is necessary to set out in some detail the circumstances giving rise to the allegations made against the applicant, in 1987, in regard to his adopted daughter, his youngest daughter and the children of Mr A and Mrs A.
We have taken the background primarily from the May 1989 decision of the Family Court in regard to the custody applications of Mr A and Mrs A (Ex R2, T11(f), p520 – 603, a copy of which is also included in Ex A1) and the timeline schedule attached to the January 2015 information FACS forwarded to the respondent under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) (Ex R2, T18, p664-678).

1969 -1981

The applicant married his first wife in 1969 – they had three children, two sons and a daughter. The applicant and his first wife separated in 1980 and the applicant did not have any contact with those children after the separation.
The following year, in 1981, the applicant met his second wife, who had two children (a boy aged four and a girl aged one) from a previous marriage.

1982 - 1985

The applicant and his second wife married at the end of 1982. In March 1983, the applicant and his second wife moved from NSW to Victoria where their daughter was born later that year. The following year (1984), the applicant formally adopted the two children of his second wife.

1986

In 1986, the applicant and his second wife met Mr A and Mrs A, who had three children – two daughters and a son. Later that year, the applicant and his second wife planned to move back to NSW as the applicant had secured work there. They travelled back to NSW and started looking for accommodation. While in NSW they stayed with the parents of the applicant’s second wife. After an argument between the applicant’s second wife and her mother, the applicant and his wife travelled back to Victoria. After their return to Victoria, the applicant commuted between NSW and Victoria every two weeks. That is, he worked in NSW for two weeks and then travelled back to Victoria every second weekend.
In mid-December 1986, the applicant’s second wife told him that, as far as she was concerned, the marriage was over. The applicant’s second wife made arrangements to spend Christmas with her parents in NSW. The applicant, separately, returned to work in NSW.
Three days after informing the applicant that their marriage was over, and without the knowledge of the applicant, the applicant’s second wife arranged for the bulk of their household effects to be moved back to NSW to her parent’s home.
At the end of December 1986, the applicant drove back to Victoria.
On the last day of December 1986, after having a family dinner with his own family and parents, Mr A told his wife that he was going down the street to visit friends and purchase some eggs. He left, taking the children with him, but did not go to visit friends. Instead, he travelled with the children to NSW to be with the applicant’s second wife at her parent’s home. Mr A called Mrs A to tell her that he had gone for good but did not explain where he was or where he was going. Mrs A contacted the police, who went to the home of the applicant to see if the children were there. When they were not there Mrs A engaged the services of a solicitor and immediately commenced custody proceedings against Mr A, in the Victorian Magistrates Court.

1987

January 1987

On 5 January 1987, after a short trip to NSW, the applicant commenced a new job in Victoria. At around this time, Mrs A travelled to NSW with her brother in an endeavour to locate her children and have them return with her to Victoria. Mrs A attended the home of the parents of the applicant’s second wife and asked to see her children. At first, the applicant’s second wife and her mother refused to allow Mrs A to see her children. However, she saw her children briefly. She was then told by the policeman who had accompanied her, that as she had been asked to leave the premises, she had to leave. Mrs A later returned to the home of the parents of the applicant’s second wife and was able to seize her eldest daughter (aged 4 at the time) and return with her to Victoria on the same day. The applicant’s second wife subsequently alleged that she had seen Mrs A’s daughter lick Mrs A between her breasts and say that she would lick her anywhere she wanted – an allegation that was subsequently withdrawn.
During the course of January 1987, the brother of the applicant’s second wife, Mr B, was also residing at the home of their parents. At the time, Mr B was on parole. In 1982 he had been convicted of an offence of an act of indecency on a five-year old girl. While Mr B was at his parent’s home he took the applicant’s 3 year-old daughter and the almost three-year old son of Mr A and Mrs A to the toilet. Subsequently, the father of Mr B and the applicant’s second wife asserted that nothing untoward had happened as the children had not complained, the toilet doors were open and the children were recovered from Mr B shortly after they were taken to the toilet.
In late January 1987, the Family Court in Melbourne made orders, by consent, granting Mrs A sole custody of her three children, with Mr A to have defined access to the children.
At the end of January 1987, Mr B, the brother of the applicant’s second wife had his parole revoked and he was returned into custody.

February 1987

In late February 1987, the Victorian Community Services Child Protection Unit received a notification concerning the children of Mr A and Mrs A. As a result of that notification, child protection officers visited the home of Mrs A and spoke to her and the children. The officers found that there was no indication of any sexual abuse having occurred, or that the children were suffering any abuse at the hands of Mrs A. Mr A was subsequently informed that the reported allegation had been found to have been unsubstantiated.

March 1987

On 4 March 1987, the NSW Local Court made orders granting the applicant access to his adopted children and his youngest daughter. At around this time, the applicant’s second wife and Mr A moved into a home, in NSW, that was owned by the parents of the applicant’s second wife.
On 20 March 1987, the applicant’s employment in Victoria ended. A few days later the applicant returned to NSW to live and work. He lived in a small pop-up caravan that was parked in the driveway of the home of a couple that the applicant knew and with whom the applicant later formed a business partnership. The couple also had young children. The applicant continued to live in the caravan until May 1987.
On 29 March 1987, six days after he had returned to live in NSW, the applicant had access to his three children until 5.00pm that day. He also arranged to have access to his children every second weekend, with the first weekend access period commencing on Saturday 11 April 1987 and ending at 5.30pm on Sunday 12 April 1987.
On 25 March 1987, Mr A had access to his three children. He also had access to his three children from 19 to 26 April 1987. While on an access visit, Mr A and the applicant’s second wife took the children to see the doctor. Mr A’s youngest daughter had complained of a ‘sore botty’ and would not let anyone wipe between her legs – it was put down to vaginitis and treated with a cream.

April 1987

In April 1987, the applicant’s second wife asserted that her daughters had informed her that the applicant had sexually abused them. She telephoned the applicant on 22 April and told him there would be no further access to their children, as he had allegedly sexually molested them. The applicant did not have access to his children on the following scheduled access weekend (25 and 26 April), or thereafter.
In an affidavit sworn on 27 May 1987, the mother of the applicant’s second wife said that, on 25 April 1987 she had a discussion with her granddaughter, the applicant’s youngest daughter: Ex R3, T29 p252. The mother said that her daughter, the applicant’s second wife, had previously told her about her youngest daughter having ‘damped’ her pants and complaining of stinging when urinating. On 25 April, when her daughter and granddaughter were at her home, her granddaughter suddenly woke from her sleep and started to cry and pat herself between the legs and said her ‘botty’ was hurting. She said that she saw that ‘in the region of’ her granddaughter’s labias was purple and seemed to be badly bruised’. The mother of the applicant’s second wife asked the child who had hurt her there – she responded by saying: ‘[the applicant’s name] did it’. When asked how he hurt her, the child said ‘he stuck his fingers in my little botty’. Two days later the applicant’s second wife and her mother took the child to the local doctor who prescribed a cream for the irritation.
On 29 April 1987, the applicant’s second wife and her mother took the applicant’s adopted daughter and youngest daughter to the sexual assault unit of the local hospital (in NSW). The applicant’s second wife said she believed that the applicant had sexually abused her daughters. Both girls were interviewed by the social worker, Ms SW, from the hospital and a case worker from the then NSW Department of Community Services (DOCS). In her notes of that interview, Ms SW noted that the applicant’s youngest daughter had said: ‘he takes the pants off me’ – ‘Lots of times’ - ‘he put his body in my back and my front – ‘[the name of Mr B] does too – the police put him in goal’: EX R1, T4 p231-2. Ms SW noted that the applicant’s adopted daughter did not make any disclosures on this day or during the follow-up interview on 1 May 1987, when the applicant’s youngest daughter was medically examined.
A formal notification of the alleged sexual abuse, by the applicant, of his adopted daughter and youngest daughter was also made to DOCS.

May 1987

On 1 May 1987, as a follow-up from the interview with Ms SW and the DOCS caseworker, Dr DA examined the applicant’s youngest daughter: Ex R3, yellow T1, p8-9). That examination occurred at the same sexual assault unit where the applicant’s second wife and mother had taken the children the previous day. Dr DA’s notes of his examination that day contain the following summary of the ‘history from mother’:

…[the applicant] looked after the children over Easter (Mid April 87) the child [the applicant’s youngest daughter] being returned to her grandparents was noted to have bruising to her external genitalia and taken to the LMO (local medical officer) 5 days ago for examination. [The applicant’s youngest daughter] described to her grandmother and then her mother how [the applicant] ‘Put his body in her front and back.’ She told her mother that this did not hurt her but that he hit her about the head to silence her.’

In her notes, Dr DA noted some vaginal bruising and recorded the hymen opening as 0.5-0.6. She said that the bruising and widened hymen diameter were consistent with ‘recent vaginal penetration by a … object, presumably a penis as described by a child. There was no evidence to presume that these changes are secondary to an accident. There was no evidence of anal trauma on examination, but this does not discount the possibility of this occurring’.
On 5 May 1987, the applicant’s adopted daughter allegedly told her mother and her aunt, Ms C, the sister of the applicant’s second wife, that she also wanted to talk about the applicant. In an affidavit, sworn by Ms C a few weeks later, Ms C said that she had a conversation with her niece ‘one Saturday several weeks ago’: Ex R3, T31, p272-274. She explained that she had prefaced her conversation by asking her niece whether she knew about germs and then went on to provide an explanation in the following terms:

… [if the applicant] went out and he was digging in the garden and touched you down there and I pointed to her vagina, you would get germs that would damage your insides and prevent you from having children. If he has touched you you have to tell someone so they can check you for those germs if you want to have children when you get older. …

Ms C said that she had, by way of analogy, also explained to her niece that it was like the germs and AIDS as seen on the television – that is, like where an adult with AIDS touches a child that child will also get the AIDS germs and die, which she did not want to happen to her niece. Ms C said it was during this conversation that her niece (the applicant’s adopted daughter) first disclosed that she had been touched by the applicant.

On 6 May 1987, following a further notification, Ms SW and a DOCS case worker interviewed the applicant’s adopted daughter, where she made a number of disclosures of having been sexually abused by the applicant: Ex R3 yellow T1, p9-11). When asked what happened, the applicant’s adopted daughter said ‘he put his dick in there’. When asked by whom – the child named the applicant by his first name. When asked where he put his ‘dick’ the child demonstrated with her finger pointing to her bottom and vagina. She said it had happened about ‘8 times’ and recollected it had happened once in Victoria when she was getting ready for school and once when she, her brother and sister stayed in the caravan with the applicant, who she again referred to by his first name. She said that the caravan incident did not happen in Victoria. She said she and her siblings did not want to stay with the applicant that time and that he had lied to their mother by saying that they had picked their own beds. Instead, she and her sister had to sleep in the same bed as the applicant. She said that it was then that he touched her with his fingers and put them inside and used his ‘dick’ too. When asked if she saw what happened to her sister she said ‘she shouted out and he had his hand over her mouth she told me’.
During the same interview, the applicant’s adopted daughter was also asked whether her uncle, Mr B, had touched her – she said: ‘Yes one day I was lying on the bed with him it happened only once and he put his fingers in my fanny; first on the outside’. The child said she did not remember when it happened but it was around Christmas – i.e. the previous Christmas.
On the same day, Dr DB examined the applicant’s adopted daughter and found evidence of an interrupted hymen with a healed tear that was very small. Dr DB concluded:

From my examination there was evidence of the previous hymenal damage consistent with penetration. A finger or a penise (sic) or another object (former two are likely from history). The perianal region was normal but this is still consistent with the history given.

At around this time, the applicant’s second wife and Mr A reported concerns they had about Mr A’s children, who were in the care of Mrs A. The applicant’s second wife said she was positive that the applicant and Mrs A were having an affair and that the applicant was having contact with the children of Mr A and Mrs A. As a result of the complaints made by the applicant’s second wife and Mr A, officers of the crisis centre of the local hospital in Victoria examined and interviewed the children of Mr A and Mrs A. They also interviewed Mrs A and inspected her home – the officers found that there were no indications or evidence of sexual abuse having occurred at any time. It was also noted that the applicant had not been present.
On 20 May 1987, the NSW Police interviewed the applicant: Ex R3 T26, p223. A copy of a transcript of that interview is not available. The 1987 Police Incident Report states that applicant admitted he had slept with his adopted daughter and youngest daughter in the caravan in the weekend before Easter. However, he denied having committed any acts of indecency. The report notes that NSW Police had also spoken to the applicant’s second wife who declined to allow her daughters to give evidence, given their age. Hence, no further action was taken.
On 27 May 1987, the applicant’s second wife filed an application in the Family Court seeking an order discharging the orders made in the Local Court on 4 March 1987. The abovementioned affidavit of Ms C was filed in support of that application.

June 1987

In June 1987:

the applicant met his current wife at Parents without Partners;

an officer of the crisis centre of the local hospital in Victoria made a home visit to Mrs A and her children. The officer saw no indications of sexual abuse or severe emotional stress and informed Mr A of this; and

Mrs A lodged an application in the Family Court seeking orders for sole and permanent custody of her children and restraining orders in regard to Mr A. Shortly thereafter Mr A filed a cross-application for sole custody.

July 1987

In July 1987:

DOCS wrote to the Victorian Department of Community Services to advise that no criminal action was being taken against the applicant because of the age of the applicant’s adopted daughter and his youngest daughter. It was also noted that the applicant’s second wife was taking action in the Family Court to prevent the applicant having any access to the children and that DOCS would not be taking any action through the Children’s Court;

consent orders were made in the Family Court in Melbourne, granting Mrs A sole custody of her children and providing Mr A with defined access;

one day later, Mr A and the applicant’s second wife called in on the psychiatric social worker at the crisis centre of the local hospital in Victoria and claimed that Mrs A had been having an affair with the applicant months before Mr A had left Mrs A. The applicant’s second wife alleged that she had left the applicant in August 1986 and that it was Mrs A who had endeavoured to ensure that she (the applicant’s second wife) and Mr A got together; and

four days after that, the Family Court in Sydney made consent orders granting the applicant’s second wife sole guardianship and custody of her children (i.e. her daughter with Mr A and the children of her first marriage who had been adopted by the applicant). The access orders that had been made in March 1987 were discharged.

1988 -1989

In early January 1988, while on an access visit to NSW with Mr A, the applicant’s second wife took Mr A’s eldest daughter to work with her. On that day, Ms C decided to interview Mr A’s eldest daughter because the applicant’s second wife (Ms C’s sister), had told her that Ms A’s eldest daughter knew the applicant was abusing her siblings and that she needed to do something about it. Ms C alleged that in her interview with Mr A’s eldest daughter, the child made disclosures of being abused by Mrs A.
On the following day, Ms C interviewed both daughters of Mr A. The applicant’s second wife and her sister Ms C, then made a notification to DOCS and the three children of Mr A and Mrs A were taken to be interviewed by a child protection officer. Mr A was present during the interviews, but did not speak. Both girls made disclosures of sexual abuse by their mother, Mrs A, and the applicant. Five days later, the son of Mr A was interviewed about what was alleged to have been inappropriate sexualised behaviour. All three children of Mr A were medically examined a few days later and while the children repeated what they had previously disclosed, no medical evidence was found to support the allegations of sexual abuse. Three days later, all three children were taken to the local NSW police station to be interviewed by two police officers. Mr A’s son, who was 3 years of age, was not willing to talk to the police officers, but the girls (aged 5 and 3) did talk to the police officers and made disclosures of sexual abuse by their mother and the applicant.
In the meantime, orders were made in the Family Court in NSW, granting Mr A continuous access to his children and Mrs A’s access to her children was suspended. As part of the Family Court proceedings of Mr A and Mrs A, they were both independently assessed and their children were re-interviewed. The separate legal representative of the children of Mr A and Mrs A engaged a family psychiatrist, Dr DC, to conduct an assessment on their behalf. Dr DC did not interview the applicant. In her report to the Family Court, Dr DC concluded that Mrs A was guilty of abusing her children. Dr DD, a psychiatrist practising in Victoria, also provided a report to the Family Court. He had seen Mrs A and said that he found it extremely difficult to believe that Mrs A could have done any harm to her children, nor did he feel that she needed any psychiatric treatment.
On 8 June 1988, Mr A and Mrs A were divorced. The applicant and his second wife were divorced around the same time. Mr A married the applicant’s second wife on 11 September 1988.
The custody applications of Mr A and Mrs A were heard in NSW, in the Family Court of Australia. The hearing of the applications took several days in October 1988 and April 1989. The applicant gave evidence at that hearing in support of Mrs A. The applicant’s second wife, her parents and her sister (Ms C) also gave evidence. On 17 May 1989, the trial Judge hearing the applications gave a lengthy extempore decision and made orders granting Mrs A sole custody of her children, with no provision for access by Mr A. At the request of the legal representatives of the children of Mr and Mrs A, an order was made restricting Mr A from lodging any future application for access without the leave of the Court. The Court also made an order restraining Mr A from approaching any authority or agency for the purpose of making allegations of abuse or neglect by Mrs A.
To the extent they are relevant to these proceedings, we have dealt with the findings of the Family Court Judge in more detail below.

Background 1990s to 2018

In around 1990, the applicant married his third wife (‘current wife’) and they continue to be married today.
In 1992, the applicant and his current wife were appointed as kinship carers under s 137 of the Care Act. In 2001, the applicant and his current wife became the kinship carers of three grandchildren of the applicant’s current wife.
In October 2013, the applicant and his current wife were granted a working with children check clearance, following the commencement of the operation of the provisions of the WWC Act (the WWC Act came into force on 15 June 2013).
In late 2014, an officer of FACS (formerly DOCS) interviewed the applicant, his current wife and each of the grandchildren who had been in their care: Ex R2, p385-386. The contemporaneous notes of FACS record that the grandchildren did not make any disclosure of sexual harm or other harm by the applicant and his current wife. The notes also state that the applicant denied sexually assaulting his adopted daughter or his youngest daughter, but believed that his daughters had been sexually abused. The applicant is recorded as having named the person he believed to have sexually assaulted his daughters. The applicant is also recorded as having said he was never in a relationship with Mrs A and that he did not sexually harm any of her children.

2015 - 2018

In January 2015, the respondent received information, from FACS, under Chapter 16A of the Care Act, concerning the safety, welfare and wellbeing of the three grandchildren who were in the care of the applicant and his current wife. The concerns related to the historical sexual abuse allegations which had been made against the applicant. The respondent undertook a risk assessment and decided to place an interim bar on the applicant that prohibited him from engaging in child-related work: WWC Act, ss 15(3) and 17. As a consequence the three grandchildren in the care of the applicant and his current wife were removed from their care.
On 29 April 2015, following the applicant being charged with the historical offences, the respondent cancelled the applicant’s clearance, as she was required to do: WWC Act, s 23(1) and Sch 1, cl 1(1)(b).
During 2015 and 2016, NSW police prepared a brief of evidence in regard to the 1987 allegations, a part of which is contained in Ex R3. That brief of evidence, we note, included a witness statement from the applicant’s adopted daughter and his youngest daughter. Witness statements were also obtained from the applicant’s second wife, her father and her sister (Ms C), and the social worker (Ms SW) and doctors (Dr DA and Dr DB) who had interviewed and examined the applicant’s adopted daughter and youngest daughter in late April and early May 1987.
In March 2015, the applicant’s adopted son made a statutory declaration in which he said: (Ex R2 T11(a), p513)

… [one] day after the separation of my mother and my father at … (my grandparent’s then business) …

My siblings [the applicant’s adopted daughter and youngest daughter] and [Mr A’s] children [names of the three children], one by one were brought into a closed office with my aunt [Ms C] and my mother.

We were where (sic) taken into a room one by one for a lengthy period. This was where we were advised one by one for a lengthy period. This was where we were advised by my mother and Aunty [Ms C], that we were sexually assaulted by [name of the applicant] my father and encouraged to make statements to say that Dad had sexually assaulted us. I refused to corporate (sic) with this story as I know I was not assaulted and neither had my siblings as we were always all together on visitations.

I was given graphic detail to say in order to make this seem believable, and repeatedly refused to cooperate. …

The applicant pleaded not guilty and was committed to stand trial in May 2016.
In 2016, Victorian Police charged the applicant with a number of offences of alleged of sexual abuse of his adopted daughter and youngest daughter that were claimed to have occurred while they were living in Victoria. The allegations involved conduct that was alleged to have happened in 1983 to 1985. It was agreed that the committal of these charges would be held in abeyance until the conclusion of the applicant’s trial in the NSW District Court. In 2018, these Victorian charges were dismissed following the findings of the NSW District Court.

1989 – Family Court proceedings of Mr A and Mrs A

In the judgment of the trial Judge in the Family Court proceedings of Mr A and Mrs A, at p29-31, his Honour gave the following explanation of the issue for determination by the Court in those proceedings and what approach was to be taken in making that determination:

… [such] an order for custody which will, in the opinion of the Court, best promote and protect the interests of the children. In deciding what order it should make, the Court will give very strong weight to the importance of maintaining parental ties; not so much because parents have a right to custody or access, but because it is it is, prima facie, in a Childs interest to maintain the filial relationship with both parents.

In considering the allegations of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof and due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 16 CLR 362. There, Dixon J. (as Dixon CJ then was) said:

The seriousness of an allegation made, the inherent unlikelihood of an allegation of a given description, or the gravity of the consequences flowing from a particular finding considerations which much effect the answer to the question whether the issue has been proved to the satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.

These remarks have direct application to an allegation that a parent has sexually abused a child. In some cases the Court will be able to come to a positive finding that the allegation is well founded. In some cases the Court will have no hesitation in rejecting the allegations as groundless.

However, even if the Court makes a finding that it is not reasonably satisfied that sexual abuse has occurred, the Court must take into account the existence and magnitude of the risk of sexual abuse, as with other risks to the welfare of a child.

Efforts to define with greater precision the magnitude of the risk which will justify a Court into denying a parent access to a child has resulted in the variety of formulations which are set out by the High Court in M v M (1988) FLC 91- 979 at page 77, 081. Their Honours were kind enough to include one of my own formulations in B v B. They then go on to say:

To achieve a proper balance the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

To reach a conclusion in favour of the wife on this issue in the present case I would need to be reasonably satisfied that the wife has not sexually abused the children before I could conclude, in relation to that issue, that she should have custody to the children; for otherwise for her to have custody would expose them to an unacceptable risk of child abuse at her hands and/or the hands of [the applicant].

His Honour’s judgment makes reference to the fact that allegations had been made against the applicant by his adopted daughter and youngest daughter. Nevertheless, as these allegations are also allegations of sexual abuse involving the applicant and they were made at a time when the applicant’s adopted son, adopted daughter and youngest daughter were part of the same household as the children of Mr A and Mrs A, we consider the findings of His Honour in regard to the credit of the applicant’s second wife and Mr A and the nature of their household are relevant to this application. In summary these findings were as follows:

Mrs A was found to be a witness of truth and her version of the incidents was accepted in preference to that of Mr A, the applicant’s second wife and her mother, father and sister insofar as their evidence was to the contrary: EX A1, p31 of the decision;

the allegation that Mrs A alone had sexually abused her children was rejected: EX A1, p34 of the decision;

the allegation that Mrs A and the applicant were in a relationship and living together was not accepted: EX A1, p36, 44-45 and 65 of the decision;

contrary to the suggestion of Mr A that Mrs A’s recounting of complaints that she said the children had made to her on their return from their access visit with Mr A in January 1987 as being complaints the children had made against Mrs A, they were, in fact, complaints the children had made against Mr A and the applicant’s second wife: EX A1, p41 of the decision. His Honour went on to say that the complaints:

… [came] to the surface when the children, who had been in a normal environment, namely the household [in Victoria], returned from an environment in [NSW] where a discussion of child abuse appears to have been the order, if not of the day, of every second day, as I will find later in these reasons. Rather they came back into a normal environment and a normal home complaining of matters which had occurred in an abnormal environment, and after things subsided they spoke the truth. As [the Victorian social worker] said in her evidence, it is not likely that children of that age so close to events would transpose persons to whom they attributed problems.

the evidence was that for a long period of time, the behaviour of Mr B, the brother of the applicant’s second wife, was of much greater concern to the applicant’s second wife and her immediate family where their concerns were openly discussed to a much greater extent than had been suggested in their evidence: EX A1, p48 of the decision – His Honour went on to say:

Furthermore, [the applicant’s second wife] herself has shown from the earliest of her marital relationships a tendency to interpret innocent actions as having sinister overtones. There was the incident with Dr X in relation to [his daughter from his first marriage], he being coy to provide a report, wherein she believed that it was a vaginal infection due to sexual interference. There was the encouragement, I find, of [the applicant] to go along with the belief that [the applicant’s first wife] was somehow behaving improperly in relation to [the applicant’s] children of his first marriage….

at page 50 of his decision, His Honour said:

The conduct of [the applicant’s second wife] can only be described as obsessive, compulsive and bizarre. She is the mistress of [her family] household-fortress and Mr A has become installed into that. Thus [Mr A] became obsessed and remains obsessed with her capacity, with which she remains obsessed, to construe any innocent remark by a child and any innocent action by person or persons, including [Mrs A], towards a child as having sinister consequences.
It is apparent upon the evidence that both the [applicant’s second wife] and [Mr A] gave to the children very clear and explicit warnings that [the applicant] was a bad man and would do bad things to them. …;

at page 51 - 52 of his decision, His Honour said:

I have no doubt that in the [Mr A’s] new household there were discussions in the presence of the [applicant’s] and [Mr A’s] children without any concern as to what they might hear, what they might imagine, and what they might dream up or dream about in conversation between themselves. There was undoubtedly discussion of the specific allegations made against [the applicant], discussions of their suspicions concerning their own children, discussion concerning what they, namely [the applicant’s second wife] and [Mr A], imagined what was being done to [Mr A’s] children.
It is clear that both [Mr A] and [the applicant’s second wife] were concerned to impress on [Mr A’s] children that [the applicant] was a dangerous man and should not be doing naughty things to them, that it in some way involved him touching their private parts, they must be careful when he was around, that he was a naughty man who did bad things to little children …

at page 65 - 66 of his decision, His Honour reiterated that he accepted Mrs A’s version of events and the applicant’s version of events to the extent referred to in the decision. His Honour went on to find that Mrs A and the applicant did not sexually abuse Mrs A’s children when they were in her care. His Honour noted that while the applicant was not well disposed to his second wife and her family, it was said with a detachment and less involvement than the clear dislike and detestation evidenced towards him as displayed in the evidence of his second wife and her family; and

at page 70 of his decision, His Honour said:

… [I] affirm again that I am reasonably satisfied that the evidence that the wife has sexually abused the children, either alone or in concert with [the applicant], should not be accepted …’

The 2018 NSW District Court Proceedings

The applicant was indicted to stand trial in the NSW District Court on seven charges. Each charge asserted that the alleged offending had occurred in NSW, between 1 March 1987 and 30 April 1987. However, the prosecution’s case was that the alleged offending occurred during the night of a two-day access weekend where the children (his adopted son and daughter and his youngest daughter) stayed with the applicant in the caravan he was living in at the time. Under the terms of the orders made by the Family Court, the applicant was granted access to the children every second weekend and the first and last weekend he had access to the children was 11 and 12 April 1987.

Charges 1 to 3

Charges 1 to 3 related to the applicant’s adopted daughter. As we have already noted, at the time of the alleged offending, the applicant’s adopted daughter was 6 years of age.
Charge 1 alleged that the applicant had sexual intercourse with his adopted daughter contrary to s 66A of the Crimes Act 1900 (NSW). In this regard it was alleged that the applicant had inserted his fingers into the vagina of his adopted daughter, which she resisted by kicking him with her legs and crying out.
Charge 2 was a charge of indecent assault, contrary to s 61 of the Crimes Act 1900, that was laid in the alternative, in the event the trial Judge found that the applicant’s fingers had not been inserted into the vagina of the applicant’s stepdaughter but found to have been placed on the outside of her genitals.
Charge 3 alleged that the applicant had assaulted his adopted daughter contrary to s 61 of the Crimes Act 1900. This offence was alleged to have occurred in the context of the other charges in that as a result of her kicking and crying out, she was either pushed or hit by the applicant causing her to hit the wall or the floor.

Charges 4 to 7

The remaining charges related to the applicant’s youngest daughter, who was three years old at the time of the alleged offending.
Charges 4, 5 and 6 alleged that the applicant had sexual intercourse with his youngest daughter contrary to s 66A of the Crimes Act 1900. Charge 4 alleged that the applicant had put his penis in the vagina of his youngest daughter. Charge 5 alleged the applicant had put his penis in the anus of his youngest daughter and Charge 6 alleged that the applicant had put his fingers into the genitalia of his youngest daughter.

Charge 7 alleged that the applicant had also assaulted his youngest daughter that night, contrary to s 61 of the Crimes Act 1900.

Evidence of the applicant’s adopted daughter at trial – Ex R1, T4 p30-94

In her witness statement of April 2015, the applicant’s adopted daughter said that she had a memory of the applicant having put his fingers into her vagina when changing her nappy. She initially said that this occurred about six months after they had moved to Victoria, when she was aged between 2 and 3. She said it happened more than once, but also said that her mother had told her that she was toilet trained by the time she was two years old. She also said that the applicant had sexually abused her a number of other times while they lived in Victoria. At the applicant’s trial she gave oral evidence and was cross-examined about these incidents and the alleged sexual abuse in April 1987. In summary, her evidence was as follows:

when she was about 4 years old and living in Victoria, the applicant had called her in from outside – he was sitting on the couch and called her over – he removed her shorts and underwear and put his fingers into her vagina and anus. She said she was crying when this happened and she felt pain and she was scared. She said the applicant told her that if she told anyone the police would lock up her mum; and

after they moved to their next house in Victoria, she got up to get a drink of water one night. The applicant was in the lounge room and he called her over and ‘raped’ her. She said she bled on the floor and the applicant had made her clean it up. On another occasion, in the same house in Victoria, the applicant had made her masturbate him.

In regard to the April 1987 access weekend – the applicant’s adopted daughter said that the sleeping arrangements in the caravan were that: ‘There was a double-sized-ish bed, like a larger bed that [the applicant] slept in with my sister and myself, and there was a smaller bed that my brother slept in’ and that the applicant slept between her and her sister. She said that during the night she woke up to the applicant taking off her undies and inserting his finger into her vagina ‘but it wasn’t long before he hopped on top of me and started to – insert his penis, and then I started to fight him off.’ She said she was ‘kicking and screaming’. She said her sister woke up to the noise – she was crying and the applicant pushed her (the applicant’s adopted daughter) to the ground. She said the applicant grabbed her sister but she did not see what happened next as she put her head down and did not watch. She said she heard her sister crying and screaming and after a while the applicant left the caravan. She said ‘I then went to my sister, I helped her get her pants back on, and then I cuddled her and told her not to tell mum.’ She said she did not tell her mother what happened and that she had never spoken to her mother about what happened.
In cross-examination, numerous inconsistencies between what was contained in her 2015 statement and what was recorded in the 1987 medical notes and other records around that time were put to the applicant’s adopted daughter. Her responses appear to have been evasive. In summary she:

agreed that the sexual assault she had alleged to have occurred while the applicant changed her nappy could not have occurred in Victoria as she was already more than two years of age when she and the rest of the family moved to Victoria;

agreed that her mother talked about the police officer who had been allocated responsibility to investigate the 1987 allegations, yet she said that her mother never spoke to her about the allegations, nor were they spoken about more generally;

said she did not recollect having, in 1987, denied being sexually abused by the applicant on two occasions when interviewed at the local hospital. However, she did recollect that the first time she told anyone about being sexually abused was to her aunt, Ms C. She said this occurred at the factory of her grandparents;

said that she did not discuss what happened in the caravan with her mother; and

said she understood that the custody case between Mr A and Mrs A centred around Mrs A having given the applicant access to her children so that he could sexually abuse them. She agreed that this was discussed in the house she shared with her mother and Mr A. It was also something her mother and Mr A would discuss. She denied it was discussed with her, or in her presence – she said she was sneaky and would overhear them talk. She also denied that her mother and Mr A would discuss with her whether she had been sexually abused. She understood Mrs A and the applicant were having an affair and she was of that understanding after her mother told her when she was a teenager.

Evidence of the applicant’s youngest daughter at trial – Ex R1 T4, p94-126

In her oral evidence, the applicant’s youngest daughter said that, one evening when she was about three and living in Victoria, she and the applicant were sitting on a mattress on the floor of her parent’s bedroom watching TV when they started playing a game and undressing each other and pointing to body parts. She said it was fun and then at the end ‘he started to get me to give him what I know as a hand job.’ She said that prior to 2015, she did not have any memory about what had happened in a caravan in 1987. She did have a recollection of a memory of holding a man’s hand and walking down into a bathroom that reminded her of her grandmother’s bathroom. She also recollected a memory of a little girl cleaning up her own blood – the girl had long black hair. She said she reconnected with the applicant when she was 21 and saw him every few months. While she did not have any recollection of what had occurred in 1987, when she was about 14 of 15 years of age (i.e. 1997-1998) she had told her school friend that she had been sexually assaulted. She said that after her daughter was born (2014), a memory of being inappropriately touched came to her and that memory related to what had happened to her in 1987.
In cross-examination, the applicant’s youngest daughter agreed that in her first witness statement for police in 2015, she had made no mention of the caravan, or the applicant having done anything in the caravan. She said it was after having made that statement that her memories of the caravan incident came back to her, so she made another statement. The applicant’s daughter was asked how these memories came back to her as she had originally told others that ‘prior to 2015’, she did not have any memories of the caravan and what had happened there. Her evidence was that she recollected an incident where the applicant had forced her to masturbate him while they were living in Victoria. When asked if she recollected being told about the caravan, she responded by saying that she did not remember. When asked whether she recalled being told by her mother to say that the applicant had touched her inappropriately, she said ‘yes’ and when asked when that occurred, she said ‘there was a few occasions’. When it was suggested to the applicant’s youngest daughter that the applicant had never touched her in a sexual way, she responded: ‘he did’.

Evidence of the applicant’s adopted son at trial – R1 T4 p258-278

In his oral evidence at trial, the applicant’s adopted son said that the only recollection he had of the caravan was that of his youngest sister ‘waking up and just you know crying a little bit and [the applicant] talking to her.’ He said that this happened in the middle of the night. He said that after he heard the applicant talking to his youngest sister, she stopped crying and went back to sleep, as he did. He said that this was ‘absolutely’ the only time he woke up that night. Earlier in his evidence he said he recollected playing soccer and he remembered the applicant taking him to soccer so they would have gone with him to the caravan after he had played soccer.
He said he was aware that, slightly after staying with the applicant in the caravan, there was quite a large amount of proceedings in the Family Court and that these were about allegations of sexual assault by the applicant on both his sisters. He also said he recalled how he became aware. He went on to explain:

It happened at my grandfather’s business.

They – my auntie and my mother …, took the you know girls and also the [Mr and Mrs A’s] kids into an office one-by-one, and then one-by-one they came out and said that they’d been touched inappropriately or you know …

… They tried me too.

The applicant’s adopted son went on to say that when his mother and aunty spoke to him, his mother told him that the applicant had touched him and he said it did not happen. He also said that he had re-established a relationship with the applicant but had no relationship with his mother. In evidence-in-chief, the applicant’s adopted son gave the following description of the caravan:

Yeah, it’s only a small caravan, like a pop top type thing with soft walls, and two beds folded out and I was down sort of one end of that and obviously there was a bed down the other end and then there was a section like a table that turned into a bed type thing.

The applicant’s adopted son said that he later spoke to his mother about his youngest sister having cried that night – he said ‘I just said [name of his youngest sister] was crying.’
In cross-examination, the applicant’s son said that he did not hear a scream or banging that night. He otherwise reiterated or expanded on the evidence he had given in chief and in his earlier statement.

Evidence of other witnesses at trial

At the applicant’s trial, the applicant’s second wife, her father and her sister (Ms C) gave oral evidence and were cross-examined. It is unnecessary to deal with their evidence any further. Another brother of the applicant’s second wife, Mr D, also gave evidence at the trial: Ex R1 T4 p281-283. In his oral evidence, Mr D said that, some time in December 1986, his sister (the applicant’s second wife) and his mother had asked him whether it was okay for the applicant to drop off his youngest daughter to his home as they would not be there. He said that after the applicant had dropped off his youngest daughter, she was very restless and touching herself in her genital area. He said she seemed very uncomfortable and when they put her to bed and would not sleep. She was restless and kept going to the toilet. He said that when his mother and sisters came to pick her up he told them that he thought the applicant’s youngest daughter had a urinary tract infection.
Ms SW (the social worker who had interviewed the applicant’s adopted daughter and youngest daughter in 1987) (Ex R1 T4 p225-247), Dr DA (the doctor who had examined the applicant’s youngest daughter on 29 April 1987) and Dr DB (who had examined the applicant’s adopted daughter on 6 May 1987) also gave evidence and were cross-examined. Neither witness had any independent recollection of the events recorded in the notes that they made at the relevant time. However, each witness gave evidence of their experience at the time and said that the notes they made were made in accordance with the applicable protocols at the time.
In cross-examination, at Ex R1 T 4 p256, Dr DA agreed that there was no indication of the size of the bruising she saw. She said: ‘I guess it was not a standard finding but the bruising may not have had a discrete border, bruising is often just a general phenomenon and it may just sort of swell out … not have a particularly measurable thing.’
In her cross-examination, at Ex R1 T4 p299, Dr DB agreed that the conclusion she drew ‘that the hymenal damage was consistent with the history given’ was not contingent on knowing the time when the alleged assault had occurred.
A former school friend of the applicant’s adopted daughter also gave evidence. She said that when they were in year eight at school they, along with three other friends snuck out one night to have some beers. She said she recollected the applicant’s adopted daughter having said: ‘I can remember the smell on the breath of my father when he was lying on top of me, molesting me.’
A friend of the applicant’s youngest daughter also gave evidence. She said that when they were about 14 years of age, the applicant’s youngest daughter had told her that she had been sexually assaulted, but was hazy on any details and did not identify who the perpetrator was. In 2015, after some counselling, the applicant’s youngest daughter told her that her father had sexually assaulted her.

Expert reports tendered at trial

The expert reports of Dr TD and Dr TB deal with the reliability of recovered or repressed memory, in particular early childhood memories. It would appear that the report of Dr TD was obtained at the request of the applicant and, having received a copy of that report, the prosecution sought a report from Dr TB. Neither expert interviewed the applicant’s adopted daughter or the applicant’s youngest daughter. Instead, they based their opinions on the material provided to them, including the medical and other notes made in 1987, the 1989 decision of the Family Court, and the witness statements prepared by police in 2015.
It is unnecessary to deal with these reports in any detail, other than to note that Dr TB generally agreed with the opinions of Dr TD. In this regard Dr TB said (R3, p74 to 82):

recovered memories are considered particularly unreliable in case of historical sexual abuse;

in regard to early childhood memories:

Amnesia for the early years of life is an ubiquitous phenomena. Reporting memories for the first three years of life is extremely unreliable, even when in age to the event. Narrative or episodic memory up until the age of eight on average is likely to be less reliable than memories of events after this time. … Children are more likely to be suggestible and influences by techniques known to distort accurate recall;

the memory for the event closer to the time may be accurate. However, the memories can potentially be impacted on by other factors creating a false memory. The potential for contaminating memories at the time was noted in that within the household of the applicant’s second wife and Mr A there were conversations around sexual abuse. If the applicant’s youngest daughter and adopted daughter were exposed to these they may have influenced their reporting of sexual abuse;
the proposition that the memories of the applicant’s adopted daughter were recovered memories was not supported by the evidence (it was noted that her counselling at age 6, 12 and 13 was made on the presumption of having been abused rather than having non–specific symptoms and then recalling abuse during the therapy);
it is possible for memories to change over time in response to cues and context;
the ‘interrogation‘ by Ms C of the children is regarded as inappropriate. Nonetheless an adult making strident statements about dying of AIDS could frighten a child into changing their story or memory of an event; and
personal confidence in the accuracy of a memory is not a good indicator of its reliability.

Dr TA was asked by the prosecution to provide an opinion in relation to the alleged sexual assaults of the applicant’s adopted daughter and his youngest daughter based on the handwritten 1987 hospital notes and the statement of Dr DB and Dr DA that had been prepared for the purpose of the applicant’s trial. In his report Dr TA said:

in regard to the 1987 recorded medical examination of the applicant’s adopted daughter:

‘Changes such as a notch or cleft in the hymen on or above the 3 o’clock to 9 o’clock line can be normal variants and neither confirm or deny a child’s clear disclosure of sexual abuse’ and in the absence of photo documentation it was difficult to comment further: Ex R3, p 53

in regard to the 1987 recorded medical examination of the applicant’s youngest daughter:

it was noted that the recorded history of the applicant’s youngest daughter was taken by Dr DA;

the finding of bruising to the inner aspect of the right labia minora was abnormal and indicated recent blunt force penetrating trauma to the genital region: Ex R3, p62; and

the presence of bruising indicated injury at some time in the preceding weeks (not months).

In both reports, Dr TA noted that the measurement of the hymenal opening does not contribute any valuable information and is not done today. It was also noted that penetration of the genitalia can occur without injury, especially if that penetration is relatively superficial. Similarly penetration of the anus can occur without injury.
It is unclear whether the report of Dr TC was tendered into evidence in the District Court of NSW: Ex A1. However, it was a report prepared at the request of the applicant and Dr TC was requested to express an opinion about the opinions expressed by Dr TA in her report. Dr TC agreed with the opinions expressed by Dr TA.

Findings of the trial Judge in regard to the charges

After the prosecution had led most of its evidence, but before the close of its case, counsel for the applicant made an application:

seeking a Prasad direction (see [119] below) in regard to the charges relating to the applicant’s adopted daughter (i.e. charges 1 to 3); and

for the trial Judge to return verdicts of not guilty in respect of the charges relating to the applicant’s youngest daughter (charges 4 to 7).

In deciding to make the orders sought, Her Honour also gave oral reasons for her decision in regard to each application.

Findings in regard to the charges involving the applicant’s adopted daughter

In regard to charges (counts) 1 to 3, at page 2 her Honour said:

… [A] Prasad direction, as is known from the decision in R v Prasad [1979] 23 SASR 161, can be given where there is evidence which is capable in law of supporting the conviction but the quality of the evidence is such that the jury should not proceed to a conviction.

In the R v Pahuja [1987] 49 SASR 191 the Chief Justice of the South Australian Supreme Court said the direction should be given sparingly and only when the judge of the opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty.

Her Honour went on to summarise the charges that had been laid and the evidence that was before the Court. At pages 8 to 9 of her decision, her Honour said:

The Crown case is clearly heavily dependent on the evidence of [the applicant’s adopted daughter]. At law the evidence of the claimant in this case, [the applicant’s adopted daughter], is capable of proving the accused’s guilt if it can be relied on beyond reasonable doubt as honest and accurate. Complaints made at the time, if accepted as true, could provide some evidence of the alleged assaults and provide support for the credibility of [the applicant’s adopted daughter’s] evidence in the trial. However, having regard to the circumstances in which the complaint was elicited by leading questions from [the sister of the applicant’s second wife Ms C], and the terms in which that questioning process has been criticised by [Dr TB], in the face of two previous denials by [the applicant’s adopted daughter] to [Ms SW] of any assault, and the other instances of unreliability of [the applicant’s adopted daughter’s] evidence being particularly the two instances noted above, in the face of the evidence from [the applicant’s adopted son] that nothing happened in the caravan and the children were encouraged to make false complaints of being sexually assaulted by the accused, I am of the view that the evidence is not sufficiently reliable or cogent to justify verdicts of guilty because of the inconsistencies in the evidence and the unreliability of the evidence of [the applicant’s adopted daughter]

I find the accused not guilty of counts 1, 2 and 3 on the indictment.

Findings involving the charges involving the applicant’s youngest daughter

In regard to charges (counts) 4 to 7, at page 2, her Honour said:

The allegation in the Crown case is that all four alleged offences happened on the same occasion which was on the weekend of 11 and 12 April 1987, …

The Crown of course bears the onus of proving each of the alleged offences beyond a reasonable doubt. The relevant test when an application is made for directed verdicts of acquittal is that the evidence taken at its highest is not capable of supporting the verdict of guilty, that is that the evidence is not capable of establishing the elements of each of the offences that charged beyond a reasonable doubt.

The application on behalf of the accused is made on the basis that the complainant, [the applicants youngest daughter] …, gave no evidence in her evidence in the trial of any assault by the accused in a caravan consistent with the charges and indeed [the applicant’s youngest daughter] gave no evidence at all of any assault by the accused. She gave evidence of having memories return to her after 2015 of something happening in a caravan but she gave no evidence of those memories, or any even involving the accused which is in any way supportive of the offences charged.

The Crown, in opposing the application, relied on other evidence in the Crown case including a number of contemporaneous complaints by [the applicants youngest daughter], contemporaneous in the sense that they were made to family members and the doctors in a timeframe which appears to be two weeks or more after the date of the access visit and the alleged offences. The Crown did concede that in the opinion of Dr TB, Forensic Psychiatrist, there were some difficulties with memories of a three year old child. Dr TB says in his report .… “Amnesia for the early years of life is an ubiquitous phenomena. Reporting memories for the first three years of life is extremely unreliable even when close in time to the event.’’ The Crown referred to a number of complaints made by [the applicant’s youngest daughter] at the time but when questioned by me in the course of submissions conceded that a number of complaints may not be sufficient to prove the offences charged beyond reasonable doubt in the absence of any evidence by the complainant of the conduct the subject of the alleged offences.

Her Honour went on to summarise the evidence of the prosecution. Her Honour noted that in the contemporaneous notes of Ms SW no mention was made of the applicant’s youngest daughter having said the alleged abuse had occurred in a caravan. Her Honour also noted the evidence of the applicant’s adopted daughter who said she did not see what had happened to her sister on the night in question and the evidence of the applicant’s son who said nothing happened that night and that it was his mother who had distorted what had happened as a basis for making the false allegation.
In regard to the evidence of bruising, her Honour found, at page 4 of her judgment, that the bruising seen by the mother, father and brother of the applicant’s second wife was of a dramatic nature which was not consistent with the opinion of Dr TA – ‘that is that the bruising noticed by the relatives some two weeks or more after the alleged offences seemed to be more dramatic than would be consistent with bruising from an event which had happened two weeks or more before the observations.’
At page 6 of her judgement, her Honour concluded:

Having regard to the evidence of the opinion of Dr TB about the unreliability of memories of children at the age of three, even if they repeat it a short time later, with the caution that needs to be applied in examining evidence of complaints which are repeated to multiple people not necessarily making those complaints more accurate. In having regard to the timeframe of the injuries observed, which could be explicable by other causes and are not so temporally connected with the date of the alleged offences as to provide a high degree of reliable support for the allegations, and in the absence of any evidence by [the applicant’s youngest daughter] of the conduct the subject of the alleged offences, I am of the view that the evidence in the Crown case to date, and I understand that any further evidence the Crown intends to call would not further advance the Crown case, I am of the view that the evidence is not capable of proving each of the alleged offences in counts 4, 5, 6 and 7 beyond a reasonable doubt and I therefore direct myself to return verdicts of not guilty in respect of counts 4, 5, 6 and 7 on the indictment.

I, therefore, find the accused of not guilty of counts 4, 5. 6 and 7 on the indictment.

Findings of the trial Judge in regard to costs

It is not necessary to deal with her Honour’s judgement in regard to the applicant’s application for costs other than to note that her Honour made the order sought after having concluded that, being in possession of all the facts, it would not have been reasonable for the prosecution to institute proceedings against the applicant: Costs in Criminal Proceedings 1967 (NSW), s 2.

Consideration

We reiterate, the primary matter in issue in this application is whether we can be satisfied, on the material before us and having regard to the paramount consideration in s 4 of the WWC Act and the factors in s 30(1) of the WWC Act, that the applicant, as at the date of deciding this application, poses a real and appreciable risk to children. Hence, it is convenient to deal with the s 30(1) factors first.

Section 30(1) factors

(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

The parties accept that the offences of which the applicant was charged are very serious if true.
The applicant has at all times denied the charges. He asserts that they were a fabrication and relies on the fact of his acquittal on each charge, together with the findings of the Family Court in the proceeding of Mr A and Mrs A, and the findings of the trial Judge in his criminal proceedings.
The fact that the applicant was acquitted on each charge does not prevent the Tribunal (or the respondent) from making findings of fact that the applicant did, in fact, commit the offences as alleged if the Tribunal has before it logically probative material upon which it could reasonably be satisfied as to those findings of fact: see Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85.
In the custody proceedings of Mr A and Mrs A, the Family Court did not find that the allegations of sexual abuse made against Mrs A, or Mrs A and the applicant, had been proven to be true, on the balance of probabilities. Nor does the respondent contend (and appropriately so) that it is open to us to make such a finding in regard to the allegations of sexual abuse that were made against the applicant involving his adopted daughter and youngest daughter.
Nevertheless, we agree, that the seriousness of the allegations that were made remains a factor to be considered in assessing risk. If we were to find, on the material before us, that the alleged sexual abuse did not occur, then this would not be a factor indicative of the applicant posing a real and appreciable risk to children: BKE (supra) at [30]. On the other hand, if we were to find, on the material before us, that there remained a ‘lingering doubt or suspicion’ of the applicant having sexually abused his adopted daughter or youngest daughter, this would be a factor indicative of the applicant posing a real and appreciable risk to the safety of children if granted a clearance.
While the respondent has pointed to evidence which, she contends, would support a finding of a ‘lingering doubt or suspicion’ that the applicant sexually abused his adopted daughter and his youngest daughter, we are not persuaded that this is so given the findings of the Family Court and the NSW District Court, who had the benefit of observing the children and other witnesses, especially the applicant’s second wife and her sister, give their evidence.
The evidence relied on by the respondent is the 1987 allegations of sexual abuse made against him by the children of Mr A and Mrs A and those made by his adopted daughter and his youngest daughter. We agree that if this information stood alone there would be a strong suspicion of sexual abuse. However, there is considerably more material available today and tendered into evidence in these proceedings.
The allegations of sexual abuse involving the children of Mr A and Mrs A were made not long after the applicant’s adopted daughter and his youngest daughter were alleged to have made their allegations. They were also made at a time the applicant’s youngest daughter and his adopted daughter and adopted son were also living with their mother (the applicant’s second wife) and Mr A. The children of both families were very young.
The Family Court Judge who heard the custody applications of Mr A and Mrs A found that neither Mrs A, nor Mrs A and the applicant together had sexually assaulted Mrs A’s children as alleged. In making that finding, his Honour accepted that the children of Mrs A and Mr A genuinely believed they had been sexually assaulted and that belief was based on what they had been told by or overheard from Mr A, the applicant’s second wife and her sister, Ms C. In this regard His Honour found, in 1989 (two years after the alleged abuse):

discussions of child abuse appeared to have been the order of the day, if not every second day in the household of the applicant’s second wife and Mr A;

the behaviour of Mr B, the brother of the applicant’s second wife was of considerable concern to her and she openly discussed these concerns in the presence of the children;

the tendency of the applicant’s second wife to interpret innocent actions as having sinister overtones – a tendency she had exhibited in her marriage prior to that of the applicant; and

Ms C’s questioning of the children of Mrs A and Mr A was inappropriate.

We accept the findings of the Family Court in regard to the allegations of sexual abuse of the children of Mr A and Mrs A, and the reasons why these children held a belief they had been sexually assaulted.
The respondent submits that the April and May 1987 recorded allegations made by the applicant’s youngest daughter and her older sister (the applicant’s adopted daughter), together with the recorded observations of Dr DA and Dr DB were also sufficient to give rise to a ‘lingering doubt or suspicion’ of the children having been sexually abused by the applicant.
However, the allegations recorded in 1987 also need to be considered in the context of all the material now before the Tribunal. In particular, the undisputed expert evidence of Dr TB, who was of the opinion that the 1987 disclosures of the applicant’s adopted daughter and youngest daughter were unreliable, given their age at the time and the circumstances in which they were made. The NSW District Court accepted that evidence.
In regard to the records of Dr DA and Dr DB, while their respective contemporary record of what they had observed was accepted at the applicant’s trial, Dr DA agreed that she had not made a note of the size of the bruising she observed on the vaginal area of the applicant’s youngest daughter, because it may not have had a discrete border and is often a general phenomenon and may just be a ‘sort of swell out’. In her evidence, Dr DB also agreed that her observation of an interrupted hymen and healed tear in the vaginal region of the applicant’s adopted daughter being consistent with having been penetrated with finger or penis was based on the history she had received from the mother (the applicant’s second wife).
In our view, in light of the undisputed evidence of Dr TB (i.e the 1987 recorded disclosures of the applicant’s adopted daughter and youngest daughter were not reliable), the views expressed by Dr DA and Dr DB in their contemporaneous record of what they observed as having caused the bruising and interrupted hymen and healed tear, must equally be unreliable. That is, their observations do not support a finding that the applicant was responsible for the bruising, the interrupted hymen and healed tear of the applicant’s youngest daughter and adopted daughter.
We accept that decision of the District Court and note that there is no logically probative evidence to the contrary before us upon which we could now find otherwise, especially as the District Court finding is consistent with the findings of the Family Court in the custody dispute between Mr A and Mrs A. Additionally, the applicant’s adopted son, who was older than his sisters at the time, and whose evidence was not disputed, gave a completely different account of the circumstances in which the allegations were made. Again, his evidence was consistent with the findings of the Family Court in regard to what was commonly discussed at the time in the household of the applicant’s second wife and Mr A.
Accordingly, on the material that is before us, we are not persuaded that there is a ‘lingering doubt or suspicion’ that the applicant sexually assaulted or abused his adopted daughter, his youngest daughter or the children of Mr A and Mrs A. This does not mean that we have found that the applicant’s adopted daughter and youngest daughter have lied. On the contrary, consistent with the findings of the Family Court Judge and the evidence before the NSW District Court, we accept that, in 1987, when they made their disclosures, they had a belief of having been sexually abused. We are not, however, satisfied that the applicant was the perpetrator of any action which contributed to the formation of that belief.
Nevertheless we note the fact that the allegations were made and they were serious allegations.

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

It is almost 33 years since the alleged offending of the applicant. There is no evidence of the applicant having committed any further offences.

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

The applicant was 26 years of age at the time of the alleged offences.

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

As we have already noted, the age of the applicant’s adopted daughter and youngest daughter was 6 and 3 years of age respectively. The applicant accepts that as his daughters were in his sole care at the relevant time they were especially vulnerable.

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

The difference in age between the applicant and his adopted daughter and youngest daughter was 20 and 23 years respectively.

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

The applicant knew that his daughters were very young children.

(g) the person’s present age

The applicant is now 68 years of age.

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

The applicant’s criminal history is limited to the 1987 allegations involving his adopted daughter and youngest daughter. After those allegations were made the applicant met and married his current wife and they remain together today. They were kinship carers of his wife’s grandchildren for many years without any concerns being raised about the applicant’s care of those children. In addition, the grandchildren did not make any disclosures of abuse by the applicant when they were interviewed in late 2014 and there have been no allegations of abuse by the children of the applicant’s first marriage.

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

The applicant contended that there was no likelihood of allegations of the kind made in 1987 occurring again. In this regard he relied on the report of Ms Howell, who interviewed and assessed the applicant on 2 December 2019.
In her report, Ms Howell said that the applicant’s concentration did not waiver throughout the interview and he had no difficulty recalling events and provided a coherent history. She noted that the applicant and his current wife have been together for 32 years and married for 29 years. She noted that the applicant had told her that, until more recently, he was unaware of the brother of his second wife, Mr B, having been at the home of his former parents-in-law in January 1987. He also said that, in 1987 he decided not to continue contact with his adopted daughter and youngest daughter because he was concerned that further unfounded allegations of sexual abuse might be made. However, he re-connected with his youngest daughter in 2003, after she had initiated contact with him.
Ms Howell based her psychological analysis of risk on the accepted static and dynamic risk factors. In this regard Ms Howell noted that the Static-99R assessment is widely accepted in the scientific community, courts and applied evaluators. The applicant’s score on the Static-99R placed him in the Below Average risk level of being charged with or convicted of a further sexual offence. Ms Howell noted that the Static-99R does not measure all relevant risk factors and the applicant’s recidivism may be higher or lower than that indicated by factors not included in the risk assessment.
The applicant’s score on the STABLE- 2007 actuarial measure suggests he has a low level of criminogenic need relative to convicted sex offenders. In regard to the Risk of Sexual Violence Protocol (RSVP) the applicant did not score on the sexual violence history scale. On the psychological adjustment scale there is no evidence to suggest the applicant holds attitudes that condone or support sexual violence or child sexual abuse, or that he has problems with stress or coping. He was, however, experiencing feelings of depression, anxiety, stress which appeared to be situational and related to his current circumstances. The applicant is not a victim of sexual physical abuse. Ms Howell also found no evidence to suggest the applicant has a cognitive impairment or suffers from enduring mental health conditions and, in this regard, there was no evidence of pornography use or problems with illicit substance abuse, or a desire to cause serious harm to others or himself.
Ms Howell found that the applicant did not score with problems on the social adjustment or manageability scales. He has been married on three occasions and does not have allegations of domestic violence or other harmful behaviours within his past relationships. Across his adulthood, until 2014, the applicant has experienced no problems with maintaining employment.
In response to the question asked of her as to her opinion, based on a static and dynamic risk assessment with respect to sexual offending against children by the applicant, Ms Howell repeated the applicant’s scores of the STATIC-99R assessment, which she said was supported by his score on the STABLE-2007 and RSVP assessments. She the went on to say the following:

… [He] has a number of protective factors including; no convictions for child sexual abuse; he does not hold attitudes supportive of child sexual abuse; there is no evidence of sexual deviance; major mental illness; issues related to substance-abuse; or violent or suicidal ideation.

[The applicant] has a history from childhood of being able to initiate and maintaining positive and supportive relationship with parents, siblings, extended family and peers. The applicant has a stable, loving and supportive relationship with his partner over 30 years. He presents as a sociable man with good social skills who did not experience problems maintaining employment up until 2014… the applicant exhibits a strong level of self-awareness and I did not identify any deficits or difficulties in his capacity to act in a pro-social manner.

Ms Howell went on to reiterate that the current circumstances had impacted on the applicant’s mental health, and these impacts are relatively enduring and require possible pharmacological and psychological interventions. We note from the content of her report that the applicant has been taking medication and receiving counselling. We accept that the applicant’s current mental health issues do not change Ms Howell’s assessment of the applicant’s risk.

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

There are no orders of a court or tribunal that are in force in relation to the applicant.

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

The applicant relied on a number of letters of support he had provided to the respondent during the course of her assessment. We accept from the content of these reports that the applicant is highly regarded by those who provided these letters of support.

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

This factor is of no relevance to this application.

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

No further matters were raised by the respondent.

Does the applicant pose a risk to children?

For the reasons set out above, we accept that the charges laid against the applicant concerning the allegations made by his adopted daughter and youngest daughter (including those which were alleged to have occurred in Victoria) are very serious. Following a six-day trial hearing before the NSW District Court, the applicant was found not guilty on all charges that were before that Court. The charges laid against the applicant in Victoria were also withdrawn and dismissed on the basis of the not guilty findings of the NSW District Court. We are not persuaded, on the material before us, that there remains a ‘lingering doubt or suspicion’ that the applicant sexually abused his adopted daughter and youngest daughter.
The alleged abuse is alleged to have occurred almost 33 years ago and there is no evidence of any other allegation of this kind having been made against the applicant at any other time. On the contrary, the evidence is that, during the time he and his current wife have cared for their grandchildren, those children have flourished in their care.
Ms Howell, whose evidence was not disputed, assessed the applicant as being at below average risk of sexual offending. She has also identified a number of factors that are protective of future risk, including: no convictions; no evidence of sexual deviance; no major mental illness; no issues related to substance-abuse; no violent or suicidal ideation and a stable, supportive and loving relationship of over 30 years. The applicant is assessed as having no deficits or difficulties in his capacity to act in a pro-social manner. As we have already noted, the applicant has the support of his wider family and friends.
Accordingly, we are not satisfied that the applicant poses a risk to the safety of children.

Section 30(1A) matters

As noted above, section 30(1A) of the WWC Act provides that the Tribunal may not make an order which has the effect of enabling a person to work with children in accordance with the Act, unless the Tribunal is satisfied that:

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

it is in the public interest to make the order.

It is accepted that the first part of the test is an objective one. In VQB v The Secretary to the Department of Justice [2013] VCAT 789, at [36], held the following in regard to a similar provision in the Victorian legislative scheme in that the test requires:

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

In our view, a reasonable person, acquainted with the material that is before the Tribunal, would allow his or her child to have direct unsupervised contact with the applicant in any child-related work because:

the alleged offending is alleged to have occurred more than 33 years ago;

he was found not guilty of the offences charged in the NSW District Court and the charges in the Victorian courts were subsequently withdrawn and dismissed;

in the absence of any other evidence that corroborated what the applicant’s adopted daughter and youngest daughter are recorded to have told Ms SW and Ms C, their 1987 recorded memories are not reliable given their age at the time and other factors which may have influenced their recorded memory;

the evidence of the applicant’s adopted daughter at trial was found to have lacked cogency and was inconsistent and in her evidence at trial, the applicant’s youngest daughter did not give any evidence about an incident in a caravan;

the findings of the Family Court Judge in regard to what was discussed at the time in the household of the applicant’s second wife and Mr A and which was considered to have influenced the children’s memories;

the finding of the Family Court Judge that Mrs A and the applicant did not sexually abuse the children of Mr A and Mrs A;

the evidence of the applicant’s adopted son who was 10 years of age in 1987 and who gave evidence that nothing of concern happened on the night he and his sisters stayed with the applicant in the caravan;

there have been no previous or further allegations against the applicant of the kind made by the applicant’s adopted daughter and youngest daughter – in particular no complaints were made during the time the grandchildren of the applicant current wife were in their care; and

Ms Howell, psychologist, assessed the applicant as being below average risk of offending with many protective factors in his favour of not offending.

We are also satisfied that it is in the public interest to make the order sought by the applicant.
It is accepted that whether it is in the public interest to make the order sought by an applicant, under s 28(1) of the WWC Act, will depend upon all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214.
The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the WWC Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255 and CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262.
The Victorian Court of Appeal has considered the meaning of the term ‘public interest’ in the context of the equivalent provision in the Victorian Act: see Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143,at [24]-[26]. In that decision the Victorian Court of Appeal said:

As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:
The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.
In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.
The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”
1. For the reasons we have already set out above, we are satisfied that it is in the public interest that the applicant be granted a clearance.

Decision

For the reasons we have given, on the material before the Tribunal, and having regard to the paramount consideration in s 4 of the WWC Act and the factors in s 30(1) of that Act, we are not satisfied that the applicant today poses a real and appreciable risk to the safety of children. We are also satisfied of the factors in s 30(1A) of the WWC Act. Hence, we find that the correct and preferable decision is to grant the applicant a clearance and on this basis it is appropriate to make an order under s 63(3)(c) of the ADR Act setting aside the 31 May 2019 decision of the respondent and in substitution thereof make an order granting the applicant a clearance.

Orders

We make the following orders:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, with the exception of the name of the psychologist who undertook a risk assessment of the applicant and officers of government agencies who provided information to the respondent in the course of her assessment, the publication or broadcasting of the name of the applicant and any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings is prohibited.

Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the matters in issue is dispensed with and the matter is to be decided on the written submissions and the evidentiary material provided to the Tribunal.

The decision of the respondent, made on 31 May 2019, to refuse the applicant’s application for a working with children check clearance, is set aside.

In substitution a decision is made to grant the applicant a working with children check clearance.

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

Registrar

Decision last updated: 14 August 2020

Medium Neutral Citation:	EJV v Children’s Guardian [2020] NSWCATAD 203
Hearing dates:	10 February 2020 and on the papers
Date of orders:	14 August 2020
Decision date:	14 August 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member S Davison, General Member
Decision:	1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, with the exception of the name of the psychologist who undertook a risk assessment of the applicant and officers of government agencies who provided information to the respondent in the course of her assessment, the publication or broadcasting of the name of the applicant and any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings is prohibited. 2. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the matters in issue is dispensed with and the matter is to be decided on the written submissions and the evidentiary material provided to the Tribunal. 3. The decision of the respondent, made on 31 May 2019, to refuse the applicant’s application for a working with children check clearance, is set aside. 4. In substitution a decision is made to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – review of decision to refuse application for a working with children check clearance – applicant subject to a risk assessment – risk assessment trigger events being charges of sexual assault and indecent assault of two children in 1987 – applicant acquitted of all charges - whether applicant a real and appreciable risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Costs in Criminal Proceedings 1967 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CHB v Children’s Guardian [2016] NSWCATAD 214 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 M v M [1988] HCA 68; (1988) CLR 166 CLR 69 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	EJV (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: T Anderson (Applicant) M Higgins (Respondent) Solicitors: O’Brien Criminal and Civil Solicitors (Applicant) NSW Crown Solicitor (Respondent)
File Number(s):	2019/00201073
Publication restriction:	Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, with the exception of the name of the psychologist who undertook a risk assessment of the applicant and officers of government agencies who provided information to the respondent in the course of her assessment, the publication or broadcasting of the name of the applicant and any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings is prohibited. Note: A reference to the name of the applicant includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the identification of the applicant.