EQE v Children's Guardian - [2023] NSWCATAD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EQE v Children’s Guardian [2023] NSWCATAD 11
Hearing dates: 29 August 2022
Date of orders: 16 January 2023
Decision date: 16 January 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
J Herberte, General Member
Decision:
The respondent’s decision to refuse the applicant’s application for a working with children check clearance is affirmed.

Catchwords:
ADMINISTRATIVE LAW – Child protection – Working with children – Whether applicant poses a risk to the safety of children – Where applicant found not guilty of criminal charges relating to sexual conduct with stepdaughter – Whether Tribunal affirmatively satisfied that alleged conduct occurred – Where applicant alleged to have physically and sexually abused his own children – Whether Tribunal is able to dismiss those allegations as groundless

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
CXZ v Children’s Guardian [2020] NSWCA 338
EQE v Children’s Guardian [2021] NSWCATAD 357
M v M (1988) 166 CLR 69; [1988] HCA 68
Office of the Children’s Guardian v EQE [2022] NSWSC 871

Texts Cited:
None Cited

Category: Principal judgment
Parties: EQE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Solicitors:
Applicant in person
Crown Solicitor (Respondent)

File Number(s): 2021/87260
Publication restriction: The disclosure of the applicant’s name, his wife’s name, his ex-wife’s name, the names of his biological and step-children and the names of other persons mentioned in the Tribunal’s reasons is prohibited.

REASONS FOR DECISION

This is an application for review of a decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance.
The Children’s Guardian refused that application largely on the basis of claims made by his stepdaughter that the applicant sexually abused her when she was aged between thirteen and sixteen. The applicant was charged with this conduct and, after a criminal trial, found not guilty.
The Children’s Guardian also relied upon disclosures made by the applicant’s children when they were around the ages of three to five that the applicant had sexually and physically abused them.
We are satisfied that the applicant engaged in the conduct the subject of the criminal charges against him. Further, we cannot dismiss the allegations made by his children as groundless. We consider that the applicant poses a risk to children and, accordingly, we have affirmed the decision of the Children’s Guardian.

Non-publication order

The Tribunal has previously made an order restricting (but not prohibiting) the disclosure of the name of the applicant, his victims and of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. For abundance of caution, and of our own motion, we order, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), that disclosure of the applicant’s name, his wife’s name, his ex-wife’s name, the names of his biological and step-children and the names of other persons mentioned in the Tribunal’s reasons, is prohibited. We note that, for the purposes of s 64 of the NCAT Act, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person (NCAT Act, s 64(4)).
We are of the opinion that this order is desirable to protect the identity of the applicant’s stepdaughter and the applicant’s daughter and oldest son, all of whom are alleged victims of the applicant.

Background

The applicant is fifty-two years old. He is an officer in the NSW public service with over twenty years’ service. He was a martial arts instructor of children and adults for over 35 years.
The applicant was charged with two counts of common assault in 2000. He was convicted of both charges and placed on a 12-month good behaviour bond.
The applicant has two children by his first wife (to whom we will refer in these reasons as the “ex-wife”). The eldest child we will refer to as “the daughter” or “F” (born in 2003) and the youngest we will refer to as “the son” or “G” (born in 1999).
The applicant and the ex-wife separated in 2001.
The applicant and his present wife (“the wife”) moved in together in about 2001.
The wife has five children from previous relationships. She has a son, to who we will refer to as “A”, and a daughter, to whom we will refer as “B” from a first relationship, both born in the mid-1980s, and two more daughters from a second relationship, born in the early to mid-1990s, to whom we will refer as “C” and “the stepdaughter.” She also has a son from a third relationship, to whom we will refer as “E” or “the stepson,” born about two years after the stepdaughter.
The stepdaughter was six years old when the applicant moved into the wife’s home. Living there at that time were the wife, the wife’s first, second and third daughters B, C and the stepdaughter, and the wife’s son, E.
After the applicant moved into the wife’s home, his daughter (“F” or “the daughter”) and his son (“G” or “the son”), came to stay occasionally on access visits. F is about two years younger than the stepdaughter and G is about four years younger than the stepdaughter.
The applicant trained all his children and stepchildren in martial arts.
Between 27 November 2002 and 3 June 2003, the applicant was subject to several apprehended domestic violence orders (“ADVOs”) as follows:

On 27 November 2002, a final ADVO was issued against him for alleged violence against the ex-wife, on the basis that when collecting the children from him he grabbed the ex-wife around the neck;

On 3 March 2003, a final ADVO was issued against him for the protection of his then mother-in-law (his ex-wife’s mother) on the basis that he videotaped and stalked her;

On 3 March 2003, another final ADVO was issued against him for the protection of the mother-in-law;

On 13 May 2003, an interim ADVO was granted against the applicant for the protection of the ex-wife;

On 24 September 2003, an interim ADVO was granted against the applicant for the protection of F, the daughter, who was then aged 5 years;

On 1 October 2003, an interim ADVO was granted against the applicant for the protection of G, the son, who was then aged 4 years and F, the daughter, who was then aged 5 years.

In 2003, the applicant and the wife had a son together, to whom we will refer as “H.” He is eight years younger than the stepdaughter.
The applicant and the wife married in 2004. They moved with the family to another house that year, not far from their first house.
In early 2009, when the stepdaughter was staring Year 8, the family moved again to a home at a location some hours’ drive away from the home they had previously lived in. The stepdaughter changed schools.
The stepdaughter claimed that the applicant sexually touched her on various occasions between 2008 and 2011, when she was aged between thirteen and sixteen.
The applicant and his wife separated towards the end of 2011, because the applicant decided to leave and live with another woman. Later, the applicant and the wife reconciled. The applicant moved back in to the family home towards the end of 2012. When he moved back in, the stepdaughter was at the end of Year 11.
On about 10 April 2015, the stepdaughter had an argument with the applicant. She was aged twenty and still living at home.
Later that day, the stepdaughter disclosed to her mother that the applicant had sexually abused her. After that day, the stepdaughter stopped living at the home of the wife and the applicant.
On 16 April 2015, the stepdaughter reported the matter to police.
The stepdaughter made a statement to police on 26 April 2015. No charges were laid at that time.
On 30 October 2015, the applicant applied for a volunteer working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). He was granted a clearance on 16 November 2015.
On 6 April 2016, the stepdaughter telephoned the applicant and the conversation was lawfully recorded by police (without the applicant’s knowledge). The stepdaughter and the applicant arranged to meet up. They had not spoken to each other since the argument on 10 April 2015.
On 18 May 2016, the stepdaughter met with the applicant at a park and had a conversation, which was recorded by the police pursuant to a warrant, without the applicant’s knowledge. The recording of the conversation was, according to witnesses in the criminal trial, hard to hear and some parts were not able to be heard at all. The transcript of the conversation is as follows:

“Q6 But you know what you did to me, you do. Are you going to deny that you didn’t do anything?
A I will always deny it.
Q7 Why? Why did you do it.
A Did what?
Q8 You know what you did you put … you know you used to rub down there you can’t deny that?
A When was that?
Q9 So when the time that I was in my room in the morning and you came in and you went down there.
A Down there?
Q10 You know you went down there [EQE] why are you lying to me? Why are you doing this?
A I’m not going to admit anything.
Q11 Don’t you remember?
A No.
Q12 Well it was morning time and I remember I woke up and you were like telling me to get out of bed and I said no and we were mucking around and then you came in and then …
A When did I come in …
Q13 You are making me out to feel like I’ve fuckin dreamt this or something I haven’t, you know I haven’t. You know you used to do it to me. What about every time I couldn’t ride the motorbike you made me show you my boobs. Do you deny that too?
A I am not going to admit to anything.
Q14 Why? It’s true?
A Regardless of its true or not … [inaudible]
Q15 Why are you denying that I don’t understand? You are making me out like I’m a psycho or something.
A I’m not making you out to be a psycho at all.
Q16 Like I I I don’t do drugs, I don’t do any of that, I’m not messed up in the head … I know yet you deny it, you make out like I’m making this up, I’m not making this up, I know, I remember it all.
A Well I remember it differently.
Q17 What do you remember then?
A I remember …
Q18 What do you remember I need to know?
A I remember us being close, I remember use [sic] being close, I remember how we would talk I just remember us being very, very close dead set have I done anything wrong or it was never intentional it was never anything like it would it was never anything I had to admit to, you and I were close, we were affectionate we were mucking around we were throwing water over each other we were doing different things and that sort of stuff. But did I do anything criminally wrong? No, I don’t believe I did.
Q19 So you don’t think you did anything? I need to get over this [EQE] and I can’t get over this until you admit to me that you have actually done it because I remember it I am not just making this up I remember it you need to admit to me I need to get over it I remember it I am not just making this up I need to get over it I remember it.
A I don’t remember it the way you do.
Q20 What do you remember then? What do you mean you don’t remember.
A We were close I remember we were close I remember we used to muck around I remember throwing water over each other in the showers I remember playing around I remember chasing you around the house and flicking you with a towel and taking, ripping your towel off and little things like that I don’t remember what you are saying. I really don’t. And I don’t want it. You know.
Q21 I don’t think I’m going to get over this unless you admit it.
A There is nothing to admit to because I’m not going to admit to a [sic] anything like that.
Q22 Are you even sorry for what you did.
A I’m, YES.
Q23 So you are sorry?
A I am sorry.
Q24 So you know what you did?
A No, don’t talk like this, no.
Q25 You know what you did.
A No.
Q26 So the time you actually did go down there.
A I don’t look …
Q27 [EQE], you had my hands there I know you did I know I remember it all.
A I don’t remember it that way at all and it don’t matter what you do.
Q28 That way, well what do you remember that?
A I remember I used to go into your room and wake waking you up and things like that but I never went … that’s a different situation. If you’re asking for me to admit to those things I can’t. I want us to get over it I want us to move on as far as I am concerned it’s just … you said to me we will see who is going first it was like an ultimatum you were going to kick me out but I don’t know how you worked that out. I understand I’ve hurt you guys really a lot but I’m not going to admit to that.
Q29 Yes you do [EQE].
A I don’t.
Q30 You did it, you did it, how can you not admit that you did it. I am not making this up and it was more than once.
A Now it’s more than once you’re saying.
Q31 It was more than, no, not the, no you went down once [EQE] but you know you touched me down there, you know you did.
A Yeah I admit I touched you and things like that but that I’m not going to admit to any of that sort of stuff. If you expect me to sit here and say that to you or at any stage in the future, I am not going to it’s not going to happen [stepdaughter].
Q32 Well I don’t think I can get over this.
A Ok.
Q33 I don’t know why you did it and you’re not going to tell me are you. I know I am not making this up and you know that I am not making this up.
A With those allegations you are making will end me up in jail or worse and it’s not going to happen.
Q34 [EQE], I am trying to get you I am trying to get you to admit to what you did and say sorry.
A I’m sorry, I am sorry, I am very very sorry.
Q35 Remember the time you left, you left and, the day you left, and you said to me, you said, ‘don’t tell anybody what I did because I would get in heaps of trouble’ I remember you were wearing a blue top.
A I don’t remember any blue top … I may have said something like that I [inaudible] [stepdaughter] but I’m not going to admit to that, not now not ever.
Q36 How do you think I could just come with it?
A Do I, do I want to you come back and have something to do with us, absolutely. You know, this is the first conversation we have had since the allegations were said at the time. You are asking me, we were, we were close we were very affectionate, we were touchy feely, always, both of us. That’s, I understand how angry and hurt you are I understand me doing what I did caused, I wish I could turn it back. I was only … I shouldn’t have done what I did, you know but there is nothing stopping us from being back talking now. Are you working?
Q37 No.
A I miss you, your mum misses you, [brother] misses you. I have hurt you, I know I have hurt you. I am very very sorry.
Q38 I don’t understand why you are saying that it didn’t happen. I know it happened.
A I never will.
Q39 I know it happened [EQE].
A You are making it a big thing. You need to let it go [stepdaughter].
Q40 I can’t let it go. How can I let it go?
A You are asking me to admit to everything as if you are a rape victim [inaudible] we were, I loved we used to much around, yeah we used to jump in the bed and that sort of stuff and things like that but it wasn’t to the degree that you’re making out .. [inaudible].
Q41 You are not going to admit are you.
A No, I’m not going to admit.
Q42 You know it happened.
A (Whisper) ‘It didn’t happen’.
Q43 How didn’t it happen?
A Like I just, we were very close, always. I’ve got a lot on, your mum’s got a lot on, we’ve all have a lot on. I don’t know what, you told me you wanted me to leave to get out.
Q44 This is not something that I just came up with though, why do I.
A Maybe it is, maybe you have been talking to people or seen something or doing something I don’t know you are asking me to admit to something.
Q45 But you did it [EQE], you did it, no one else, you did it, and I know you did it. It’s not something that has come into my mind in the last few weeks before I said it. I have always known you did it. I haven’t made this stuff up.
A Well if you have made it up or not made it up whatever the case may be the fact is you have said it. It’s out in the open now everyone knows, it’s ridiculous.
Q46 Well I don’t know how everyone knows?
A Well your brother for one. Your whole family know, [inaudible]. I said to your mother well when we got back I said ‘It’s up to you what to do you want to do.’ It’s your choice and she asked me straight away and I denied it. I said ‘No’. I said to her that [stepdaughter] angry and upset.
Q47 That is not why I said it [EQE].
A Regardless of that.
Q48 I was going to say it to you sometime soon, before that.
A Whatever the reasons.
Q49 So would it have been a different story if I just sat down and spoke to you about it.
A No, because I would never admit to it.
Q50 But it happened.
A It didn’t happen the way you think.
Q51 How did it happen? It happened [EQE].
A We were us, we just …
Q52 No, I know it happened, I’m not making this stuff up. I don’t know how I am going to get over this if you don’t, if you keep denying it.
A I will always deny it.
Q53 I don’t know why you keep denying it when it happened. It’s only you and me right now, how can you deny that? There is nobody else here.
A I don’t see it happening the way you did. We were mucking around, yeah we were playing around and used to massage each other a lot and that sort of stuff. I never did anything that you, if you said ‘stop’ I’d stop if you said ‘go away’ I’d go away. Did I touch you, yeah. [inaudible].
Q54 Yeah at first I did go to the police but I’m not, I couldn’t do it anymore nothing is happening, nothing has happened. I can’t do it anymore.
A You need to say it to your mum.
Q55 Imagine I went back to mum now and said that it wasn’t true and it was.”

On 25 January 2017, the police conducted an interview with the applicant which was recorded. In the interview, the applicant denied the allegations against him. He admitted massaging his stepdaughter saying:

“But I was, I don’t know when. I just, time, the time’s that I’ve massaged her is when she’s complained of s, sore shoulders or something like that after training or what ever the case may be. Um, she quite regularly, um, asked me to massage her, which was the case. Um…”

When asked where the massages took place, he said in the lounge room. When asked whether clothing was left on or partially removed, the applicant said:

“Some of it, sometimes it was partially removed it, but it was, you could just to get to her shoulders and that short of stuff.
Q. So what would be removed so that you could get to her shoulders?
A. Just the sh, the shirt.
Q. Mmm.
A. So –
Q. So can you tell me, was it, how, how did she move her shirt?
A. Well, I can’t, well, I’m tryin’ to think of where that was. Have I used massage oil on her? Yes, I have. As to the times and dates, I don’t know.
Q. Yep, that’s OK.
a. As to, she wasn’t naked, she would’ve had her bra on.”

Later in the interview the following exchange occurred:

“Was there any instances where, um, her bra was removed or ---
A. No
Q. – you massaged the front of her body at all?
A. No, not really.
Q. Um, can you tell me how you would’ve been sitting, standing, something else when you would’ve been doing your massaging?
A. If I’m on the lounge, from behind. … I was sitting on the lounge.
Q. Yep.
A. And she’s sitting in, she’s sitting in between my legs.”

The applicant told the police officers that he did not wear anything to bed. The interview continued:

“Q. All right. So where [sic] there any instances where the children, [stepdaughter] in particular, would have come into the bed, to give you a cup of tea, for instance, when you weren’t wearing any clothing in bed?

A Yes.
Q. Uh-huh. Were there ever any instances where [stepdaughter] may have seen you, your penis, or ---
A. Yes
Q. Yep. And tell, tell me about those instances?
A. There’s nothing to tell, just … you know, from shower or what ever else and it’s, just, I can tell you instances. It’s just living, it’s just general living.”

Criminal proceedings were commenced against the applicant on 25 January 2017 in relation to aggravated sexual assault, aggravated indecent assault and indecent assault in respect of a female child, being the applicant’s step-daughter. The police alleged that:

the applicant had had sexual intercourse with his step-daughter without her consent, between specified dates in 2009 and 2010, when she was fourteen years old, contrary to s 61J(1) of the Crimes Act 1900 (NSW);

the applicant had had sexual intercourse with his step-daughter without her consent, between specified dates in 2011, in circumstances of aggravation, being that she was under the applicant’s authority and supervision as the applicant was her stepfather, contrary to s 61J(1) of the Crimes Act 1900 (NSW);

the applicant committed aggravated indecent assault against his stepdaughter, between specified dates in 2009 and 2010, in circumstances of aggravation, being that she was under the applicant’s authority and supervision as the applicant was her stepfather, contrary to s 61M(1) of the Crimes Act 1900 (NSW);

the applicant committed indecent assault of a person under the age of 16 years against his stepdaughter, between specified dates in 2009 and 2010, when she was fourteen years old, contrary to s 61M(2) of the Crimes Act 1900 (NSW).

On 27 January 2017, the Children’s Guardian, having become aware of the criminal proceedings, cancelled the applicant’s clearance.
On 7 December 2018, the applicant was found not guilty of the charges on each count.
On 26 September 2019, the Children’s Guardian granted the applicant permission to make an early further application for a clearance, under s 13A of the Act.
On 6 November 2019, the Children’s Guardian imposed an interim bar on the applicant under s 17 of the Act and advised that she was undertaking a risk assessment under s 15 of the Act. On 22 February 2021, the Children’s Guardian decided to refuse the applicant’s application for a clearance.
On 29 March 2021, the applicant applied to the Tribunal for administrative review of the decision of the Children’s Guardian to refuse his application for a clearance. The Tribunal granted him an extension of time to make that application.

Tribunal’s task

A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision (Act, s 27(1)).
The Tribunal’s task when determining an application for an administrative review is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act 1997 (NSW), s 63(1)).
The applicant was subject to a risk assessment under Division 3 of Part 3 of the Act. 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 (Act, s 18(2)). A risk to the safety of children means a real and appreciable risk to the safety of children (Act, s 5B).
The Tribunal, standing in the shoes of the Children’s Guardian when conducting its review, must decide whether the applicant poses a real and appreciable risk to the safety of children (CXZ v Children’s Guardian [2020] NSWCA 338 at [7], [57]).
In determining an application for administrative review under Part 4 of the Act, the Tribunal is required to consider certain matters set out in s 30 of the Act. Those matters are discussed below.

Procedural history

A hearing was held before the Tribunal, differently constituted, on 10 August 2021 (“the first hearing”). The applicant was self-represented and the Children’s Guardian was represented by counsel. The parties filed documents prior to the hearing.
At the first hearing, the applicant was cross-examined. There was no other oral evidence.
The Tribunal provided a decision and reasons for its decision on 30 November 2021 (EQE v Children’s Guardian [2021] NSWCATAD 357). The Tribunal made orders setting aside the decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance and requiring the Children’s Guardian to issue a clearance to the applicant within 28 days.
The Children’s Guardian appealed to the Supreme Court pursuant to cl 17 of Sch 3 to the NCAT Act.
The Court, constituted by Davies J, found that the Tribunal had made an error of law (Office of the Children’s Guardian v EQE [2022] NSWSC 871). On 5 July 2022, the Court set aside the Tribunal’s order that the Children’s Guardian issue a working with children check clearance to the applicant and remitted the proceedings to the Tribunal, differently constituted, to be determined according to law.
The Tribunal was then constituted with its current members.

Second Tribunal hearing

On 29 August 2022, another hearing was held before the Tribunal, as currently constituted. Prior to the hearing, the applicant filed two affidavits sworn by him on 25 March 2022 and on 22 July 2022 respectively. The Children’s Guardian also filed further documents, including a transcript of the first hearing before the Tribunal. The parties also relied on material filed before the first Tribunal hearing, including affidavits made by the applicant.
Some of the persons who gave references for the applicant also gave oral evidence at the second hearing and were cross examined. The wife gave evidence in support of the applicant and was cross examined. She said that she never heard of anything of concern in relation to the applicant massaging people and that she did not consider him to be a risk to the safety of children. Her evidence was that she had a professional role in child protection and that she had a good working knowledge of paedophiles and victims of child molestation. However, she had no concerns about the applicant being a risk to her children or grandchildren.

Crown case

The Tribunal has before it the Crown case statement in the criminal trial of the applicant.
In relation to the first count, the Crown alleged that, in 2008 or early 2009 (when the stepdaughter was in Year 7 or Year 8), the stepdaughter was at home in her pyjamas and her mother had gone to work. The applicant was in bed and said to the stepdaughter “You feel cold, hop under the bed sheets.” The stepdaughter got into the applicant’s bed, then noticed he was naked. The applicant always slept naked. The applicant rubbed his hand over the outside of the stepdaughter’s pyjamas and touched her breast and legs. The applicant then asked his stepdaughter to bite his neck, which she did. The applicant put his hand inside his stepdaughter’s underpants and rubbed her vagina. The stepdaughter could feel the applicant’s erect penis pushing against her leg. After a few minutes, the applicant told the stepdaughter to go and have her breakfast.
As to the second count, the Crown alleged that on a day in 2009 or early 2010, when the stepdaughter was 14 years old, the stepdaughter was lying face down on the applicant’s bed. The applicant asked her to take her top off and straddled her legs. He put massage oil on to her back and massaged her back and arms. He then pulled the stepdaughter’s pyjama pants down to expose her bottom and massaged it. Whilst doing this, he pushed his erect penis against her leg. He then asked his stepdaughter to roll on to her back, then massaged her naked breasts.
The prosecution’s allegations as to the third count were that, in 2009 or early 2010, when the stepdaughter was fourteen, on a day when nobody else was at home, the applicant asked the stepdaughter to come and sit on his lap. The stepdaughter did so with her back to the applicant. The applicant put his hand down her underpants and rubbed her vagina, inserting his finger into it.
As to the fourth count, the prosecution alleged that in 2011 when the stepdaughter was sixteen, she was asleep in her bed in her bedroom. The applicant entered the bedroom and told her to get up. He came on to her bed and grabbed her breasts. The applicant then got under the sheets with her and removed her underwear. He got on top of his stepdaughter and placed himself in between her legs. He put her legs on top of his shoulders and put his mouth on to her vagina. He eventually stopped and asked the stepdaughter if she was going to get up now. She got out of bed and went into the kitchen.
According to the Crown case, when the applicant separated from the wife and left the family home in 2011, he asked the stepdaughter not to tell anyone what he had done because he could get into a lot of trouble.

Criminal proceedings

The transcript of the criminal proceedings was before the Tribunal. We have considered it when forming an opinion as to whether the applicant poses a risk to the safety of children. We have summarised some relevant parts of the transcript below.
The stepdaughter gave oral evidence at the criminal hearing and was cross examined. Her evidence was consistent with the prosecution’s allegations in counts 1 to 4. She said that the first occasion the applicant did anything to her was the occasion the subject of count 1. After the applicant had rubbed her vagina and her breasts, she said he told her to go and have breakfast and he had a shower. He then asked her to have the day off school to help him build a retaining wall. The stepdaughter said: “I thought that he was a dad to me before that, and then after that I was just scared.”
The stepdaughter’s evidence was, “that was the first time he’d started and it kept going.” She recalled the inappropriate touching happening on many occasions. The stepdaughter remembered the son, G, walking into the room whilst the applicant was touching her, and also recalled her younger half-brother, H, walking into the room on quite a few occasions.
The stepdaughter gave evidence that the applicant used to massage her often and at some stage he started massaging her breasts. She said he would pull the bottom of her pants down and massage her bottom and he would massage down close near her vagina. He would then insist she roll over.
The stepdaughter described another occasion when the applicant came into her bedroom, got under her bed sheets, took her underwear off and started licking her vagina. When she tried to push him away, he grabbed her wrists and she could not move. She said he continued for quite some time.
The stepdaughter gave evidence that on other occasions the applicant would ask her to come into his bed and rub her vagina. There was one occasion, she said, when he asked her to sit on his lap in the lounge room, and he reached around into her pants and rubbed her vagina or clitoris, and tried to put his finger into her vagina, but it was really tight, so he could not put his whole finger in.
The stepdaughter recalled that there were occasions when G and H came into the room when she was being inappropriately touched by the applicant. She said there was an occasion when G came into the applicant’s bedroom when this was occurring. Her evidence was that this occurred at the second house in which they all lived together. The stepdaughter was not asked whether there was an occasion when G saw any sexual abuse at the third house in which they lived.
The stepdaughter’s evidence was that, when the applicant moved out of their house in 2011 to go and live with another woman, the applicant said “sorry” to her and he also “said not to tell anybody about what he’s done otherwise he can get in big trouble.”
The stepdaughter told the court in the applicant’s criminal trial that, when the applicant moved back into the house in 2012, she had decided not to let any sexual contact happen again. She said, “I told myself I would never, ever let anything like that happen again.”
The stepdaughter also told the court that her younger half-brother E moved out of home for a period of time because the applicant “had bashed him.” E’s evidence was that he moved out at the age of sixteen before returning some time later.
The stepdaughter gave evidence in the criminal trial about the argument she had with the applicant in April 2015. She said that the applicant was yelling at her because she told him that she could not babysit her half brother G, as she had agreed to do, but that E would babysit instead. The stepdaughter’s evidence was that she had earlier spoken to the mother of her friend L about the abuse and L’s mother had told her that she needed to start standing up for herself. The stepdaughter felt she should stand up for herself in this argument and said, “You know what you’ve done to me. You’ve fucked me in the head.” The stepdaughter said that the applicant’s reaction was one of shock.
Later, the applicant said to her that he did not know what she was going on about, and she yelled back, “Yes you do. You know what you’ve done to me.” The stepdaughter gave evidence that the applicant “said that he will kick me out” and she replied, “My mother wouldn’t do that to me.”
The wife, being the stepdaughter’s mother, also gave evidence in the criminal proceedings. She gave evidence of attending the house of E’s partner (K) after the argument the stepdaughter and the applicant had on 10 April 2015. The stepdaughter and E were present at K’s home. The wife stated that the stepdaughter was sobbing and told her that the applicant had been molesting her. The wife said that she told her daughter (the stepdaughter) to go to the police. The wife then went home and confronted the applicant who told her that the allegations were “bullshit.” The applicant also told the wife that he had “kicked” the stepdaughter “out.”
The wife gave evidence that there was a pattern of behaviour with the applicant and the stepdaughter in showers and bathrooms when the stepdaughter was younger. The pattern was that one would be in the shower and the other one would come in and throw cold water over the person in the shower. The applicant’s wife voiced concern at the time that the stepdaughter was too old to be doing that.
The applicant’s wife told the court that the applicant’s son, G, stopped coming to visit them in 2013.
The stepdaughter’s friend, M, gave evidence in the criminal proceedings. She said she had become close friends with the stepdaughter when they were in Year 8, in 2009. She told the court that, towards the end of Year 9, in 2010, the stepdaughter said to her, “[the applicant] sexually assaults me.” The stepdaughter’s friend, M, said that the stepdaughter told her that the applicant “would walk in on her having a shower, sometimes he would pin her down on the bed and feel her boobs and sometimes he would finger her as well.” M also said that the stepdaughter had told her one time “that if she was to ever tell her mother, that it would ruin the family.” The stepdaughter had told M that she wanted to keep it a secret because she didn’t want to ruin the family.
M said that the stepdaughter brought the sexual abuse up again at the beginning of Year 11 after a party. M had told the stepdaughter to tell someone about the sexual abuse but she was always too scared to do so.
The applicant’s son G gave evidence that there was a routine when he stayed at his dad’s house on access visits whereby the children would run into the applicant’s room when they woke up, jump on his bed, wake him up and stay in there for a bit. The son said his father was always naked in bed.
The son, G, gave evidence that on one occasion, which he estimated was when he was “around 12, 13” (which would have been about 2012 or 2013), he ran in to the applicant’s bedroom in the morning with his younger half-brother, H, the son of the applicant and the wife (who would have been about nine or ten). According to the son’s evidence, H jumped behind the applicant and the son jumped on the applicant’s legs. The stepdaughter was lying next to the applicant on her stomach with her shirt pulled up to about her bra line. The applicant was lying on his side. The son, G, said that the applicant would rub his hand up and down the stepdaughter’s back and down to her bottom. When the son walked in and jumped on the applicant’s legs, he saw that the applicant had his hand down the stepdaughter’s pants rubbing her bottom area. The son thought the applicant looked shocked when he and H walked in and the applicant slipped his hand out of the stepdaughter’s pants and pulled the stepdaughter’s shirt down. The son said that the wife was not in the house on that occasion.
G identified the house in which the incident took place as being the third house in which the applicant and the wife and their family lived together.
The son, G, told his mother what had happened when he returned home from the access visit to the applicant. He also telephoned the applicant and referred to what happened, then texted the applicant saying he knew what he had done to the stepdaughter and that the applicant was a paedophile. After that incident, G’s evidence was that he did not return to the applicant’s home and he cut off all contact with the applicant and his family. The son gave evidence that he had had no contact with the stepdaughter or E since that time.
The stepdaughter’s half-brother E, the applicant’s stepson, who is two years younger than the stepdaughter, also gave evidence at the criminal trial. His evidence was that on one occasion when they were living at the third house in which the applicant and the wife both lived, E and G walked into the lounge room. E saw the stepdaughter and the applicant sitting on the floor. The applicant was leaning on the lounge with his arm around the stepdaughter and the stepdaughter was leaning on the applicant. The wife was also in the room at the other end of the lounge. The stepson saw the applicant move his hand quickly out of the stepdaughter’s pants where it was resting on her bottom. The stepson said he spoke to the son, G, about it after they left the room. The son is two or three years younger than the stepson. ‘
The stepson could not remember exactly when this occurred. When asked if he knew how old he was at the time, he replied, “No, young.”
The stepson, E, recounted an argument between the applicant and the stepdaughter when he was about eighteen. (That was the argument which occurred on 10 April 2015). The argument was about the stepdaughter not babysitting their half-brother, H, when she had said she would do so. E gave evidence that, in the course of that argument, the stepdaughter said to the applicant: “You know what you’ve done to me, you’re fucking out.” The stepson gave evidence that he did not hear the applicant tell the stepdaughter that she should get out of the house. Rather he said that the applicant said to the stepdaughter that if she was not happy, she could leave.
The stepson’s evidence was that he followed the stepdaughter into her bedroom. The stepdaughter was crying a lot and then she told him that the applicant had been touching her. He said they had a conversation in which the stepson said, “We’ve got to and [sic] tell someone about this” and the stepdaughter said, “No, I’ve got to go to work, I need the money.” The stepdaughter then left the house to go to her friend L’s house, and the stepson called his partner, K, and she picked him up.
The stepson, E, said he then saw the stepdaughter again later that day at the stepson’s partner’s house. After the stepson called his mother (the wife) and asked her to come over to his partner K’s house, the wife arrived at K’s house. The stepdaughter and E told the wife that the applicant had touched the stepdaughter. The stepdaughter also said to the wife, “He went down on me.”

E said that after that occasion he never lived in the house again. The wife (his mother) told him that the applicant was leaving the family home, but E was later made aware that the applicant was coming to live back in the home.
E also said in evidence that after the son, G, stopped coming to the house the stepson, E, did not maintain contact with G.
Another of the stepdaughter’s friends, L, gave evidence at the criminal trial. L’s evidence was that the stepdaughter disclosed to her in early 2014 that the applicant “had been molesting her.” L said the stepdaughter was very upset and distraught and was crying. L said that the stepdaughter talked to her again about this on several occasions. L told the court that the stepdaughter told her that the applicant made the stepdaughter bite his neck and “rub her down there.” L also gave evidence that the stepdaughter told her that there was a time when the applicant went down on her and “held her hands so she couldn’t get out of it.” L stated:

“There were certain times where she said [the applicant] would favour her and let her have days of [sic] school as the other kids would go. There was another time where he got her hand and placed it on his private part, and she moved it away. He then tried to do it again and had moved it away again. He did try and finger her, but she said she was too tight for it actually to go all the way in – like – it would go in but couldn’t properly do it.”

L also said that the stepdaughter told her that “if she wanted to go ride one of their motorbikes, he would have to grab her boobs, or she would have to at least show her boobs to him in order to ride the bike.” L said in cross examination that the stepdaughter had reported that “mostly what happened was him rubbing her vagina.” L told the court that the molestation had been occurring since the stepdaughter was 13 years old.
L reported that, after the argument with the applicant in April 2015, the stepdaughter came to her house, crying. The stepdaughter told L that she had confronted the applicant about what had happened. L said that the stepdaughter said she had said to the applicant, “Look, I know what you’re doing to me. I know what you’ve been doing to me is wrong.” L did not recall the stepdaughter telling her that the applicant had thrown her out of home.
Later that afternoon L and the stepdaughter went to the stepson’s partner’s house. She saw the wife arrive there and the stepson told the wife that the applicant had been touching the stepdaughter. L said that the wife told the stepdaughter could go to the police if she felt she needed to.
L recalled that, following the argument, the applicant may have moved out of the family home for a few days but then moved back in. The stepdaughter then decided she would come and live with L at L’s family home.
L’s mother also gave evidence for the prosecution. Her evidence was that she was aware before the argument between the stepdaughter and the applicant that the stepdaughter had told L that the applicant had been touching her inappropriately. L’s mother said that she had spoken to the stepdaughter about this directly. L’s mother reported that the stepdaughter had told her that the applicant “had made her – show him her breasts; touched them” and then the stepdaughter “was quite upset and we stopped the conversation.” L’s mother said that she advised the stepdaughter to talk to her mother. The stepdaughter told L’s mother that she did not want to hurt her mum.
On the day the stepdaughter had a confrontation with the applicant, in April 2015, she came to L’s family home following the confrontation. According to L’s mother, late that afternoon, the stepdaughter told L’s mother that she had told the applicant that she was not going to deal with anything that had been going on any more and that she was going to tell her mother everything. After the stepdaughter had spoken to her mother (the wife), the stepdaughter came back to L’s place. L’s mother described her as have “this biggest relief on her face” and saying to L’s mother “we’ve told mum everything and mum’s going to kick him out.”
L’s mother denied that the stepdaughter had told her that the applicant had thrown her out of the house.
The applicant gave evidence in the criminal proceedings and was cross examined. He said that it was a practice in their household on weekends for the kids to run into the bedroom. He said that it was not uncommon for the family to wrestle and “muck around.” His evidence was that he slept naked but if he was aware of the kids coming into the room he would put shorts on. The applicant said that on occasions the children saw him naked, if he was getting out of the shower, or walking around the bedroom.
The applicant denied that he ever let the stepdaughter stay home from school. He also denied the offending. He denied that the incidents described by the son, G, and stepson, E, occurred.
The applicant admitted massaging the stepdaughter in his bedroom but said it was generally with a vibrating massager and that other people were around. This is inconsistent with what he told police in the police interview, being that he massaged the stepdaughter in the lounge room. As to the throwing of water, his evidence was that it was a game he played with all the kids, but later mainly with the stepdaughter. He told the court: “She would come in – when I was having a shower, she would come in with a cup of water and surprise me with a [sic] icy cold cup of water and vice versa.”
The applicant also said in evidence that the stepdaughter often asked him for a head or shoulder massage and that he would sit there watching TV and massage her.
The applicant’s account of the argument he had with the stepdaughter about babysitting her brother in 2015 was that the stepdaughter had said to her that the stepson, E, was going to babysit instead. The applicant recounted that as the argument escalated, the stepdaughter yelled at him, “You fucked with my head.” The applicant said that at some stage he said to her: “Fuck off. Pack your shit and fuck off.” The applicant said that the stepdaughter replied, “You can’t kick me out of this house. It’s mum house.” The applicant’s evidence was that the stepdaughter said, “You’ll be going before I’m going. You’ll go before I go.”
The applicant said that the stepdaughter left the house. When his wife came home, he told her that he had kicked the stepdaughter out of the house. The wife went to the stepson’s partner’s home (K’s home). When she returned, she confronted the applicant with the allegations. That night or the next day it was agreed that the applicant would move out of the house for a while “to allow [the stepdaughter] to come back and speak to her mother and get to the bottom of the allegations.” Within a week, the applicant had come back to live in the house.
In relation to the conversation with the stepdaughter which the police recorded, the applicant said that his wife had told him in advance not to call the stepdaughter a liar. He said this was because his wife had concerns for the stepdaughter’s mental health and they had received advice from mental health professionals not to call her a liar. The applicant said he met with the stepdaughter to try to bring her home, having kicked her out of home, which had upset his wife and the family. He wanted to apologise to the stepdaughter for kicking her out of home and for having an affair in 2011. He said that he also wanted to persuade her to talk to her mother. At that stage, the stepdaughter had not spoken to the applicant for over a year and had also cut ties with the wife.
In cross examination, the applicant was asked what he meant when he said the following to the stepdaughter in the covertly recorded conversation in the park:

“I don’t see it happening the way you did. We were mucking around, yeah we were playing around and used to massage each other a lot and that sort of stuff. I never did anything that you, if you said ‘stop’ I’d stop if you said ‘go away’ I’d go away. Did I touch you, yeah. [inaudible].”

When asked about this in cross examination, the applicant stated that when he referred to saying “stop,” he was talking about martial arts training.
The applicant’s case, at the criminal trial, was that the prosecution witnesses had colluded. The applicant’s counsel pointed to inconsistencies in the evidence. These included inconsistencies in recollections about when certain disclosures and other events occurred, and between the stepdaughter’s account of the son walking into the bedroom when the applicant was massaging her and the son’s (one recalling it occurred in one house they had lived in, and the other recalling that it occurred in a different house). The applicant’s counsel also said it was “a piece of dishonesty” that the stepdaughter said her mother did not tell her to go to the police when she first made the allegation. The applicant’s counsel suggested to the jury that the Crown witnesses were not telling the truth.
The applicant’s counsel submitted that it is implausible that the stepdaughter would say she was scared and shocked by the sexual abuse, and yet “still kept going.” The applicant’s counsel also said that the stepdaughter’s evidence was “totally inconsistent; one minute she said she’s blocking it out because she can’t bear to remember it, and the next minute she’s thinking about it and remembering more and more. Doesn’t make sense.” The applicant’s counsel suggested that L’s account was implausible because she said she did not ask the stepdaughter any questions when the stepdaughter made the disclosure to her.
The wife’s daughter, B, the stepdaughter’s older half sister, gave evidence at the criminal trial in support of the applicant. She said that the stepdaughter and her were close, but that the stepdaughter had never disclosed any sexual abuse to her. She also said that she had never seen any inappropriate behaviour.
The wife’s daughter, C, the stepdaughter’s older sister, also gave evidence in support of the applicant. She said she never saw any inappropriate behaviour by the applicant towards the stepdaughter.
The jury delivered a verdict of not guilty to each count.

Evidence of earlier child assault allegations

There was in evidence before the Tribunal (but not before the court hearing the criminal charges) an allegation that on at least two occasions in 2003 the applicant’s daughter F complained to her mother (the ex-wife) that the applicant had touched her in the vaginal area. The applicant and the daughter’s mother were separated at this time and the daughter lived mainly with the mother.
On 4 September 2003, the child F was interviewed by the Department of Community Services and the Police and disclosed that the applicant placed his penis against her vagina in the bathroom at her father’s place (whilst on an access visit). The daughter F also said that the applicant had hit and punched her four year old brother, G. The police report stated: “Both of these children have been the subject of previous reports concerning allegations of abuse at the hands of the [applicant].” The police report stated further that the applicant “denied the offence and counter claimed fabrication by the child based on urgings by the childs mother… the suspects former wife.” The police report concluded that there was insufficient evidence to reasonably expect a successful criminal prosecution. The report continued:

“Despite the fact that their [sic] was insufficient grounds to proceed to criminal prosecution there was no evidence to suggest fabrication by the child. When interviewed the child was unclear on many issues. This could be attributed to her age. She was however clear on the alleged sexual abuse. Nothing in the police inquiries went on to dispel on the balance of probabilities that something may have happened. It was merely that this level of proof did not reach to the criminal level of proof.”

Another report states that on 20 July 2003 the applicant’s son, G, then aged 4, after returning home from an access visit to the applicant, told his mother that the applicant had locked him in the clothes cupboard four times. The mother took the son G and the daughter F to the doctor where they told the doctor that: 1. The son G was hit on the head and thigh by his father; 2. the daughter F revealed that her father put his penis next…. 3. Both children revealed that the applicant’s de facto [that is, the wife] pulls their hair and pinches them; 4. The son G has started to wet the bed; 5. The daughter F refuses to visit her father. 6. Both children are alleged to have been punched in the head. The report states: “the children are scared to speak to police.”
A police report on 4 December 2002 states that the applicant’s four year old daughter F disclosed in counselling that during an access visit to her father (the applicant), the applicant had an erection and took her hand and placed it around his erect penis. The child also stated that the applicant “rubbed the dickie up and down.” The child said that the applicant told her not to tell her mother about it.
A “DOCS Helpline – Child Abuse line” report records that, on 20 February 2002, a caller said that the mother (the ex-wife) had disclosed that she and the applicant separated in 2001 mainly due to domestic violence. The mother expressed concerns that when they were together the applicant would hit the two-year old and left welt marks in the past.
There are also records before the Tribunal, provided to the Children’s Guardian by the Department of Communities and Justice, of the applicant’s biological children disclosing that the applicant and the wife hit them in 2002 when they went to the applicant’s home for access visits. The record states that the applicant’s daughter, F, showed the doctor where the wife punched her and her brother in the back. In 2002, the daughter F reported that the applicant “belts into” her brother, G and that G cries a lot. G said he did not want to go to his father’s (the applicant’s) place because “he hits me.” Later the same year, the daughter F and the son G reported that the applicant and the wife had punched them both in the back and that the applicant hit them very, very hard.
In late 2002 or 2003 it was reported that G, the son, said his father “lets” him play with his own penis and commented “dad let’s me play with my dickie.” The daughter, F, hearing the conversation, added, “Dad does it in front of us.”
In 2003, the daughter, F, made further reports that “Dad hit us,” “Dad smacked me”, “he hit me on the arm with his hand,” and “I was sad because Dad hit me.” She also disclosed that “Dad showed us his dickie. He done it when me and [the son, G] were in the bath and his place.” She said that he told G, the son, “to touch his dickie but [G] didn’t do it.” It is noted that some of the disclosures were made to a counsellor spontaneously when talking about an unrelated matter.
The Department considered that the reports could not be substantiated due to the daughter F’s confusing and inconsistent accounts given at interview. The Department noted that her “repeated reference to being struck by her father may in part reflect reality, although this cannot be substantiated on available information alone.” Having interviewed the applicant, the Departmental officer commented that he “presented as cooperative and appropriate, and very credible. He sounded supportive of his children, and genuinely concerned that the children are being adversely affected by the dispute between maternal family and himself.”
The son, G, made further reports in July 2003 that he had been punched in the head, the stomach and the right thigh whilst at his father’s house and also that he had been locked in the cupboard. In August 2003, the daughter, F, told her mother that the applicant had touched her on the vagina whilst on an access visit. The report notes that it is believed that F may have genital warts. In September 2003, F and G’s mother (the ex-wife) reported that F told her that the applicant has “put his dick near me” and also that he “put his dick near [G, the son].” She also reported that G told her that the applicant and the wife “pinch my balls.” The Department found that the reports could not be substantiated.
In April 2005, there was a report that the son, G, told his mother: “Dad put his hand on my hand and put my hand on his dicky.” When his mother asked why he did not tell the family psychologist or child’s court representative, G said he was too scared to. A caller to the helpline said that he believed the natural mother was making the children say these things to split up the applicant and his wife and for the purposes of the family law proceedings.

Applicant’s evidence

The applicant provided the Tribunal with a number of references in support of his application. These included a reference from a woman who attended high school with the stepdaughter and learnt martial arts from the applicant between the ages of 14 and 17. She stated that she “strongly believed” the allegations to be untrue and stated that the stepdaughter never mentioned the allegations to her.
An undated reference by a man describing himself as a family friend for a period of sixteen years, dated 16 February 2020, stated that he is aware of the allegations of sexual assault against the stepdaughter and supported the applicant “knowing full well [the stepdaughter’s] story is far from anything that really happened.” The writer states that he has worked with the applicant as a martial arts instructor and that he “has always shown professionalism in every aspect of training.”
The applicant provided a reference from a registered nurse, dated 20 February 2020. The nurse was aware of the allegations made against the applicant. She stated that she had taken her children to martial arts classes with the applicant since about 2009 or 2010 and had become family friends with the applicant and his wife. She stated that he has always been respectful and professional.
A letter to the applicant from the applicant’s solicitor who acted in the criminal trial, dated 10 December 2018, expressed the view that it was “clear to everyone that you were being honest and forthright” when giving evidence and expressed the opinion that “the asserted victim in this matter told lies.” The letter concluded by “requiring” the applicant to place a further amount in payment of the writer’s invoices within 28 days.
An officer in the public service who had worked with both the applicant and the wife provided a reference for the applicant. Her daughter attended high school with the stepdaughter. The officer stated that at no time did she hear from her daughter any allegations of abuse. Her daughter learned martial arts from the applicant and she had no concerns. She stated that she supported the applicant and would have no issues with him teaching her children or grandchildren in martial arts.
The wife provided a character reference for the applicant. She stated that prior to the meeting between the applicant and the stepdaughter in the park she told the applicant not to all the stepdaughter a liar because it could cause more damage. She also stated that “[o]ur family regularly gave each other massages in an open area in front of everyone.” The wife also said that the stepdaughter said in September 2011, when the applicant left the marital home, the stepdaughter said she would never forgive him for leaving the family for someone else. She said at no time has she ever believed that children were or are in danger whilst in the applicant’s presence.
The stepdaughter’s eldest half-sister B gave the applicant a reference. She stated that massages were a common thing in their household. She stated that the stepdaughter had mentioned that she wanted to be a masseuse and she and other family members would offer for her to give them neck, shoulder and back massages. B said she fully supported the applicant and held him high regard, and would have no issue or concerns with him looking after her own daughters. B had herself been the subject of sexual abuse from a babysitter at a young age.

The stepdaughter’s sister C also gave the applicant a reference. She stated that, growing up, “we would muck around and wrestle with each other most afternoons.” She said she supported the applicant and would have no issues or concerns with the applicant looking after her children.
The biological son of the applicant and the wife, H, gave the applicant a character reference. He stated that he remembered all the family used to train and “muck around” in the games room. He “thought it was family fun and enjoyed wrestling and mucking around with everyone.” He never saw or heard of any problems about his father whilst training in martial arts between 2008 and 2016.
The applicant said, in a letter to the Office of the Children’s Guardian dated 8 December 2020, that the person he assaulted was an ex convicted inmate “who took offence to my occupation and then with his wife… threatened and attacked my ex-wife and myself.” He also stated in that letter that the stepdaughter’s allegations “only occurred after we had an argument regarding [the stepdaughter] refusing to find work, or helping around the house. This resulted in me kicking her out of the family home.” He also stated that the stepdaughter’s evidence in the criminal proceedings that she did not know about child molestation or sexual abuse was a “clear lie.” In relation to the allegations made about his biological children, he said that his ex-wife and her family “tried all avenues to alienate me from the children” and attributed the allegations of abuse to his ex-wife. He said that the stepdaughter “made up her own allegations out of retaliation for kicking her out of home.” The applicant pointed out that in 35 years of volunteering in martial arts he had never had any child related risks or allegations from parents or students.
The applicant filed a number of affidavits in the Tribunal proceedings and before the Supreme Court. In these affidavits he stated the following:

All AVOs and sexual assault allegations related to disputes in his domestic environment. He “strongly feels” that those “allegations were made out of a malicious and vindicative nature to defame and damage my marriage, professional career and alienate my from my children from a previous marriage”. Additionally, all allegations were investigated and resulted in no criminal record or risks identified regarding children held against his name;

The AVOs “were used to stop contact with my children” and were sought by his ex-wife and her family “to shore up the case in the Family Law Court”;

He is a senior officer within the NSW public service and has received promotions and merits of commendations throughout his career including the NSW Premiers Bushfire Emergency Citation in 2020;

The stepdaughter’s claim that the family never spoke about or cautioned her about the risk of paedophiles “is a lie”;

His “ex-wife and her family did all they could to destroy” his relationship with his biological children;

At home with the wife they “had a normal caring loving family” and “would muck around play wrestling and jumping over each over.” This was not sexual or inappropriate;

He has the support and love of the wife and the stepdaughter’s two older sisters;

The January 2006 judgment in the Family Law proceedings is in his favour;

Other family members are also correctional officers and never observed or reported any abuse, which would be expected if they had observed any abuse;

The applicant’s biological son and stepson were, having regard to the judge’s comments, “deemed unreliable witnesses”; one “was deemed a simple man” and “the other did not support the version of events he reported to Police”. He believes them to be hostile witnesses who willingly gave false evidence as a means to destroy and damage him as a form of pay back;

He argued with the stepdaughter and told her to get out of the family home. The stepdaughter responded by saying to him words to the effect, “You’ll be leaving before I do”;

When he agreed to meet the stepdaughter in the park, his wife told him not to call the stepdaughter a liar. In relation to the recorded conversation, there were numerous parts which are inaudible which confuses the context of his answers. Further, he was extremely nervous, he had been told not to call the stepdaughter a liar and he has a hearing disability which affected his ability to totally understand the stepdaughter’s allegations. He had great difficulty hearing what was said due to background noise. He annexed a statement from a person who is apparently a general practitioner stating that he had consulted with the applicant since 2016 and that he has hearing loss and frequent episodes of impacted ear wax;

Whilst the police facts record admissions as to touching and interacting physically with the stepdaughter, any admission centred on their joint involvement in martial arts or as a loving parent;

He has a strong relationship with his other children and grandchildren (other than his biological children, F and G, the stepdaughter and the stepson, E, with whom he no longer has any relationship).

The applicant relied upon the Family Court’s judgment in 2006 in the divorce proceedings and custody dispute between him and his ex-wife. In that judgment, the Court accepted the applicant’s evidence that he had not punched either of his children except in play, never locked them in a cupboard and had not hit either child since orders made on 19 December 2002. The judge found the wife to be an impressive and truthful witness and accepted that she had not administered any physical chastisement to the children. He was satisfied that, if the children had made the statements of ill treatment attributed to them, they had either fabricated some complaints or at least embellished some of them. The judge was, however, satisfied that the applicant had been violent to his ex-wife but was unable to make a sensible finding about the extent of that violence. However, he was also satisfied that neither the applicant nor the wife had physically ill treated or physically abused either child.
The Court had a number of reservations about the truth of the allegations of sexual abuse. These included inconsistencies between various versions of the children’s statements, the lack of corroboration of the mother’s evidence of disclosures and the convincing nature of the father’s denials. The Court expressed itself to be satisfied that there has not been any sexually inappropriate conduct by the applicant towards either of his biological children.

Cross examination of the applicant at first Tribunal hearing

At the first Tribunal hearing, the applicant was cross examined by counsel for the Children’s Guardian, Ms Hartstein. We were provided with a transcript of the hearing.
At the first hearing, the applicant did not agree with the proposition Ms Hartstein put to him that allowing children into his bed when he was naked was on the wrong side of the boundary of appropriate behaviour. However, he said that he accepted that allowing a 13-year old girl into his bed when he was naked was on the wrong side of that boundary.
When asked by Ms Hartstein what he meant when he said in the recorded conversation that he used to “muck around” with his stepdaughter, the applicant said:

“Mucking around, like – like a father would. Like, we all – well all horse played. It was general horseplay. … We will wrestle, we will jump on each other, we would attack each other, we’d throw water at – you know, have water fights, we would – all those sort of things that would generally happen in a family.”

Ms Hartstein asked the applicant about his statement to the stepdaughter that he remembered that he and the stepdaughter threw water over each other in the shower. When asked whether he regarded that as appropriate behaviour with his thirteen-year old stepdaughter, he said: “That was with all kids. We all did it from time to time.” When pressed, he said that it was appropriate behaviour with a thirteen-year old:

“It was – yes. At that time there was nothing – there was nothing devious in that – that horseplay, or mucking around, or whatever you want to call it. There was nothing in that. She would come up to come into – she would do exactly the same thing to me. There’s been times when all the kids did it. It was – it wasn’t something that I – I deemed was inappropriate, no.”

The applicant pointed out that the glass in the bathroom where the stepdaughter showered was frosted glass and he generally threw the water over the top of the rail. In his bathroom, on the other hand, there was just a shower curtain.
Ms Hartstein asked the applicant what he meant in the covertly-recorded conversation when he said to the stepdaughter that he remembered playing around. The applicant replied that “it could have been, as I said, that sort of scenario, water fights, chasing, flicking each other with the towels, tea towels, all the general – general stuff.” When asked about ripping his stepdaughter’s towel off, the applicant said:

“I recall that and I didn’t – and, I do recall that, and it wasn’t devious, it was – she – at that stage there I was doing the dishes, she came through and flicked me with a towel, and she was in a towel herself because she was getting clothes out. I chased her and ripped the towel, and she was naked and then ran into the bedroom. That’s what I remember what happened.
Q. She was – she was naked after you ripped her towel off, is that right?
A. Yes. She’d just got out of the shower, yes.”

When asked by Ms Hartstein whether he considered that to be appropriate conduct with a thirteen-year old girl, the applicant said: “It – at the time, yes.”
The applicant accepted in the course of cross examination that he had said in the recorded conversation with his stepdaughter that he was not going to admit to anything, regardless of whether it was true. The applicant explained that he had said that because he did not want to call his stepdaughter a liar.
Ms Hartstein reminded the applicant that in the police interview, when the police asked him whether he had massaged the front of his stepdaughter’s body at all, he answered “No, not really.” She asked him what he meant by “not really”. He responded: “I can’t – maybe the top of her chest, or part of her shoulders.” Later he said he had never touched her breasts but “I would touch – touch her chest area, but that’s all to do with the mucking around, or doing martial arts.”
The applicant also accepted that the stepdaughter could have been sitting between his legs as he massaged her shoulders, or could have been lying on the lounge, or the applicant may have massaged her when she was in his bedroom. The applicant clarified that “it would be on top of the bed.”
Ms Hartstein questioned the applicant about his statement to police that the stepdaughter had not made any reference to any type of sexual conduct in the conversation he had with her at the park. He made that statement not knowing that the police had covertly recorded the conversation. The applicant explained at the first Tribunal hearing that he had not recalled everything said at the park when he spoke to police, because it was about six or seven months later.
Ms Hartstein read to the applicant the following part of the transcript of that conversation:

“[Stepdaughter:] It was more than, no, not the, no you went down once [EQE] but you know you touched me down there, you know you did.
A Yeah I admit I touched you and things like that but that I’m not going to admit to any of that sort of stuff.”

The applicant explained that he “admitted to touching her, but not – nothing like what she was saying.” When asked why he said “I admit” if it was nothing sexual, he repeated that he admitted to touching the stepdaughter but not in a sexual way. Ms Hartstein then asked him to account for why he responded “Yeah,” when the stepdaughter said to him, “You touched me down there, you know you did.” The applicant replied: “There is no account, it was just a statement at the time.” He then said that he did not know what she was referring to and that he did not understand, when the stepdaughter used the words “down there,” that she was referring to her vagina. He also said he did not know what the stepdaughter meant when she said he “went down.”
The applicant, when asked, could not explain why he said to the stepdaughter, “Yeah, I admit I touched you.” After stating that he often used the word “Yeah” (“that’s the way I speak”), he then said “Yeah, I – in hindsight I should have called her a liar and went from there.” He then repeated that he was doing what the wife told him to do by not calling the stepdaughter a liar. When questioned further, he said that he would be lying if he said he never touched his stepdaughter because “everyone touches somebody in one – some way.”
Ms Hartstein took the applicant to the part of the transcript of the covertly-recorded conversation with the stepdaughter where the applicant said that the allegation the stepdaughter was making could end him up in jail and the stepdaughter said she was trying to get him to admit what he did and say sorry. The applicant was then recorded as saying, “I’m sorry. I am sorry. I am very, very sorry.” When asked by Ms Hartstein what he meant by this, the applicant denied that he meant he was sorry because he had abused his stepdaughter, and said that he meant that he was sorry that he “kicked her out of home and caused all this stuff.”
Ms Hartstein took the applicant to the part of the transcript of the recorded conversation where the applicant said the following:

“A I don’t see it happening the way you did. We were mucking around, yeah we were playing around and used to massage each other a lot and that sort of stuff. I never did anything that you, if you said ‘stop’ I’d stop if you said ‘go away’ I’d go away. Did I touch you, yeah.”

The applicant denied that that was an admission that he was touching the stepdaughter inappropriately. He said that when he used the word “stop,” that was in reference to martial arts training. When pressed, the applicant stated that “[i]n our household mucking around is training.”
Ms Hartstein asked the applicant why he had said to the stepdaughter, when he left the home in 2011, “Don’t tell anybody what I did because I would get into heaps of trouble.” The applicant responded that “it was probably a reference to the – it was probably in reference to the affair that I had in 2011.” He denied that he was saying to the stepdaughter not to tell anyone that he had been touching her inappropriately.

Consideration of s 30 factors

As indicated above, when determining the applicant’s application, the Tribunal is required to consider the matters set out in s 30(1) of the Act. We have done this as follows.

The seriousness of the offences and any matters that caused a refusal of a clearance or imposition of an interim bar – s 30(1)(a)

The offences with which the applicant was charged were very serious. At the time the applicant was charged, an offence under s 67J(1) of the Crimes Act 1900 (NSW) carried a maximum penalty of twenty years’ imprisonment; an offence under s 67M(1) carried a maximum penalty of seven years’ imprisonment; and an offence under s 67M(2) carried a maximum penalty of ten years’ imprisonment.
The offences of having sexual intercourse with a child and aggravated indecent assault of a child are extremely serious, particularly when the child is in the offender’s care. The consequences of such abuse for the child’s emotional, psychological and sexual development can be devastating.

The period of time since the offences or matters occurred and the conduct of the applicant since they occurred – s 30(1)(b); The seriousness of the applicant’s criminal history and the conduct of the applicant since the matters occurred – s 30(1)(h)

The term “criminal history” includes convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted) and charges whether or not heard, proven, dismissed, withdrawn or discharged (Act, s 5C(1)). In addition to the charges concerning his stepdaughter, the applicant has been charged with:

Common assault (date of offence 21 December 2000), for which he received a twelve-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW);

Contravene apprehended domestic violence order (date of offence 9 January 2003) for which he received a six-month bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The alleged offences against his stepdaughter occurred between February 2008 and November 2011. It is now nearly sixteen years since the first alleged offence against his stepdaughter occurred and over eleven years since the last alleged offence occurred.
The applicant has not been charged with any further offences since that time. Following a suspension from his employment pending the determination of the criminal charges against him, he continues to work in the public service. From the references he has provided and the oral evidence given in support of him, we infer that he is a respected member of the community.
There is no evidence of any complaints against the applicant in his capacity as a martial arts instructor.
The applicant has given evidence that he has seen a psychologist since being charged with the alleged offences. However, he continues to deny that the alleged offences occurred.

The age of the applicant at the time the offences or matters occurred and his present age; The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim; The difference in age between the victim and the applicant and the relationship between the victim and the applicant –s 30(1)(c), (d), (e), (f) and (g)

The applicant was aged between 38 and 41 and the time of the alleged offences against his stepdaughter and is now 53. The stepdaughter was aged between fourteen and sixteen years at the time of the alleged offences. The applicant was 24 years older than the stepdaughter and knew she was a child.
The stepdaughter was particularly vulnerable because she is the applicant’s stepdaughter and was living in his home under his authority.

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

For the reasons given below, we consider that there is some likelihood that the applicant will engage in conduct of a sexual nature with children in the future. His children and stepchildren are now adults. However, he is a grandfather and his grandchildren may come to his home. Other situations may occur in which an opportunity for sexual conduct with children arises. If the allegations of sexual misconduct made against him in relation to his biological children are true or partly true, and or alternatively the allegations in relation to the stepdaughter are true or partly true, there is a reasonable possibility that he would engage in similar conduct in the future. That is particularly so in circumstances where he has not acknowledged that he engaged in the alleged conduct, accepted any responsibility for it or expressed any remorse.
The impact of any repetition of the alleged conduct on children could be devastating. Child sexual abuse can have an immediate effect on a child’s sense of safety and security, making the child feel confused, hurt, trapped and angry, and may also have long-lasting deleterious psychological impacts on the victim into adulthood.

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

There is no evidence of any court or tribunal order in force in relation to the applicant.

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

The applicant has filed affidavits and other documents in these proceedings, given evidence at the first Tribunal hearing and provided references. This evidence is referred to above and discussed below.

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

There is no relevant information in relation to the applicant that was obtained in accordance with s 36A of the Act.

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

The Children’s Guardian relies upon the allegations made in 2002 and 2003 that the applicant had physically and sexually abused his biological children from his first marriage. She says that those allegations must be considered in an overall assessment of risk, noting the similarity with the allegations made by the stepdaughter, and therefore the pattern of allegations. We have considered these allegations in our assessment of risk.

Assessment of risk

We have first considered whether we can be satisfied that the conduct the subject of the criminal charges occurred. Whilst the jury found that the applicant’s guilt was not proved beyond reasonable doubt, the test for fact-finding in these proceedings is different. It is whether we can be affirmatively satisfied that the alleged conduct occurred (see CXZ v Children’s Guardian [2020] NSWCA 338 at [7]).
For the reasons which follow, we are affirmatively satisfied that the applicant engaged in the conduct alleged in counts 1 to 4 in the criminal proceedings. In reaching this state of satisfaction, we have had regard to the seriousness of the allegations.
The stepdaughter’s account is, on its face, credible. As the Children’s Guardian submitted, the evidence she gave in court in the criminal proceedings was detailed and consistent.
The lack of any clear boundaries in the applicant’s household around sexually inappropriate behaviour makes it more plausible that the abuse occurred. Many witnesses in the criminal proceedings gave evidence of massaging and “mucking around” being common in the household. Witnesses also testified that the children in the house frequently came into the applicant’s bed in the morning and that he slept naked (as he accepted). The wife considered that the stepdaughter was getting too old to play games with the applicant involving the stepdaughter and the applicant pouring cold water over each other in the shower. She was concerned about this.
It would not have been difficult for the applicant in that environment to move from massaging the stepdaughter’s back (which was accepted within the family) to massaging her bottom or breasts surreptitiously. Similarly, he had created a situation where family members would accept the stepdaughter coming into his bed in the morning, where he was naked, as being normal. It was also normalised for the stepdaughter.
The applicant’s case is that the stepdaughter made the allegations of sexual abuse because she was angry with him for kicking her out of the house. However, we are satisfied that the stepdaughter made disclosures about the sexual abuse prior to the argument in which the applicant claims that he kicked the stepdaughter out of the house. Further, we find that although the applicant threatened to kick the stepdaughter out of the house, the stepdaughter did not believe he would be able to do so, saying her mother would not let this happen.
The stepdaughter made disclosures to two friends, prior to confronting the applicant about the sexual abuse in the argument in April 2015. The stepdaughter’s friend M’s evidence was that the stepdaughter had made the disclosure to her when they were at the end of Year 9, in 2010. The stepdaughter would have been about fifteen. The details M provided of the stepdaughter’s report to her in 2010 broadly correlate with the stepdaughter’s evidence at the trial; that is, the applicant would sometimes pin the stepdaughter down on the bed and feel her breasts and sometimes he would “finger” her. M denied having discussed her evidence with the stepdaughter.
L’s evidence about the disclosure the stepdaughter made to her in 2014 also correlated with the stepdaughter’s evidence. In particular, the applicant making the stepdaughter bite his neck, rubbing her vagina, giving her cunnilingus and holding her hands so she could not move and trying to “finger her” but she was “too tight” are all details which the stepdaughter gave evidence about. L’s evidence that the stepdaughter was distressed and crying when she made the disclosure makes it unlikely that the stepdaughter had invented it at the time.
L’s mother’s evidence corroborates L’s evidence and the stepdaughter’s evidence. L’s mother’s evidence was that the stepdaughter told her on the day she had an argument with the applicant that she had confronted him about his sexual abuse of her and that she was going to tell her mother about it. She had learnt some weeks before that the stepdaughter had told L about the sexual abuse when L had told her. L’s mother had also spoken to the stepdaughter about the abuse some weeks before the argument between the stepdaughter and the applicant.
We consider that it is very unlikely that M, L and L’s mother committed perjury by lying to the court about what happened, or that they colluded. That is a very serious allegation and one for which there is no evidence. L denied in cross examination in the criminal proceedings that the stepdaughter had asked her to lie and L’s mother denied that L had put pressure on her to make a statement. It was not put to L’s mother in cross examination that she was lying.
The stepdaughter had entered into a sexual relationship with L and lived with her in a sexual relationship in L’s family home, from April 2015 after the stepdaughter left home. That evidence was not before the jury in the criminal proceedings. The stepdaughter then moved out of L’s family home in September 2016. L’s evidence at the criminal trial was that after that time she did not maintain a relationship or friendship with the stepdaughter, although she did maintain a friendship with the stepson, E, and his partner, K. She sometimes saw the stepdaughter when she went to the home of E and K.
The circumstance that L is an ex-lover of the stepdaughter and no longer has a friendship with her makes it even more implausible, in our view, that she invented her evidence.
We find that the stepdaughter made the disclosures about which M, L and L’s mother gave evidence. We reject the proposition that the stepdaughter invented the allegations in retaliation for the applicant’s threat to kick her out of the house. She had made disclosures which were broadly consistent with the allegations she made on 10 April 2015, and in the criminal trial, much earlier.
We also reject the proposition that she invented the allegations so as to break up the relationship between the applicant and the wife (her mother). There is little evidence to support this. If that had been her aim, it would be unlikely that she would make a disclosure to a friend about the sexual abuse in 2010 and wait until 2015 to tell her mother and go to the police.
There are other matters which support the stepdaughter’s account.
The son, G, said that he saw that the applicant had his hand on the stepdaughter’s bottom whilst lying on the bed in the applicant’s room, and looked shocked and moved his hand when G entered the room. The stepson, E, also gave evidence that he had seen the applicant’s hand on the stepdaughter’s bottom in the lounge room, and that the applicant quickly moved his hand when E entered the room.
The applicant’s counsel, at the criminal trial, pointed out to the jury the inconsistency between the stepdaughter’s evidence that G came into the room and saw what was happening at the second house, and the evidence given by G and E that they saw the applicant’s hand down the stepdaughter’s pants at the third house. The applicant’s counsel also pointed out that G and E each said that they saw the applicant’s hand down the stepdaughter’s pants on different occasions. Further, the wife’s evidence was that the last time G came over he was 13 or 14 and that was in 2013. In 2013, the stepdaughter was 18 and not being abused (on her own account).
There were undoubtedly inconsistencies in the evidence. However, both E and G were very clear in their evidence that they saw the applicant’s hand down the stepdaughter’s pants. G was candid about not knowing what year he had seen this occur, or how old he was at the time, saying “I haven’t got a clue.”
A memory of something shocking or unusual is likely to remain in a person’s mind. Other peripheral details, including as to dates, are less likely to be remembered accurately, unless there is some reason to remember them. Confusion or mistakes as to less important details do not necessarily render all of a witness’s evidence unreliable.
We consider that the accounts of G and E that they saw the applicant’s hand down the stepdaughter’s pants are credible and more likely to be true than untrue. It may be that the stepdaughter’s recollection of G coming into the bedroom at the second house when the applicant was touching her is confused, and that he in fact came into the bedroom at the third house when this was happening. Alternatively, G may have come into the bedroom at both houses when the applicant was inappropriately touching the stepdaughter, but only realized what was happening at the third house. The stepdaughter was not asked whether G came into the bedroom at the third house.
G’s evidence that he did not come to the applicant’s home again immediately after seeing his hands down the stepdaughter’s pants may be incorrect. If he stopped visiting in 2013, as the wife recalls, that was after the abuse had stopped. Alternatively, the wife may be wrong about the year in which G stopped coming to visit. We do not consider that this inconsistency in the evidence means that G’s evidence as a whole should be disbelieved. It may be that he kept visiting the applicant’s home after that incident, but that it played a part in his thinking when he refused to visit any more.
Neither G nor E had any motive to invent their evidence. There was nothing to contradict G’s evidence that he had had no contact with the stepdaughter between the time he stopped coming to the applicant’s home as a teenager (which was, at the latest, 2013) and when he gave evidence at the trial in 2018.
The applicant’s counsel acknowledged in her address to the jury that E was “distraught” in court and that he clearly believed the allegations. She suggested that, given his distress, if E had seen the applicant with his hand down the stepdaughter’s pants in about 2013, he would not have simply walked out of the room. She also told the jury that the fact that E was so distraught and so shocked indicates that he never suspected something like this earlier. She put it to the jury that, in his evidence, he was trying to blacken the applicant’s name.
We do not consider that it is unlikely that the stepson E, who was 16 or younger at the time, simply walked out of the lounge room upon seeing the applicant’s hand on the stepdaughter’s bottom. He was probably shocked and may not have known what to do. It would have been difficult to raise this with his mother, stepfather and the stepdaughter, particularly in circumstances where the stepdaughter was not manifesting any objection. He did, on his evidence, immediately discuss it with G. It is not improbable that E would have felt distraught when he learned some years later that the applicant had sexually touched the stepdaughter on the vagina and breasts over a number of years and had performed cunnilingus on her. He may have seen the applicant’s hand on the stepdaughter’s bottom without suspecting that the applicant had engaged in more serious sexual abuse of the stepdaughter over a number of years.
It is not the case, as the applicant submitted, that the judge in the criminal trial deemed the son, G, or the stepson, E, to be unreliable witnesses. The judge told the jury that if they accepted the evidence of G or E, they could reason that it supported the stepdaughter, but only to the extent that she said the accused would touch her in bed (that is, in relation to one of the four counts). When summarising the Crown case, the judge stated: “It was suggested that you would not have found [E] a sophisticated person but you would have found him a straightforward, emotional young man, although Mr Crown did accept there may be some problems with some of his evidence.” The judge also stated, as part of his summary of the Crown case, that the jury would have found the stepdaughter, M, L G and E “were just young people who came along and told the truth.” When summarising the applicant’s case, the judge pointed to aspects of the evidence of G and E which the applicant’s counsel had said were unreliable. The judge did not tell the jury that G and E were unreliable witnesses.
The covertly recorded conversation which occurred on 18 May 2016 between the applicant and the stepdaughter in the park also lends credibility to the allegations made by the stepdaughter.
When interviewed by police, and before he knew that the May 2016 conversation had been recorded, the applicant told the police that the stepdaughter had said to him in the park that he had hurt her: “I took that as me being hard on her, not, not nothing like this. I took it as me being, you know what I mean, I, I used to make them do the chores and cleaning and, you know, be respectful and all that sort of stuff.” The applicant said that the stepdaughter did not make reference to any type of sexual conduct by him in that conversation, “not at all.” He told the police that he thought she was making reference to him kicking her out of home.
In the covertly-recorded conversation between the stepdaughter and the applicant in the park, the stepdaughter plainly did refer to sexual conduct by the applicant. After the police had informed the applicant that they had a recording of his conversation with the stepdaughter, and he was asked what he understood by her saying “you know you touched me down there,” he said he understood that to mean touching her on her vagina.
It is not credible that the applicant had forgotten, by the time of the interview with police about seven months later, that the stepdaughter had accused him of inappropriate sexual conduct during the conversation in the park. The allegations were of the utmost seriousness. It is inherently unlikely that the applicant would not have remembered them. We find that the applicant was deliberately concealing from police that the stepdaughter had spoken to him about the allegations during their conversation in the park, when he told the police that the stepdaughter did not make reference to any type of sexual conduct by him in that conversation. That account supported his story that the stepdaughter was angry with him for kicking her out of home and being too hard on her and that she had invented the allegations to spite him.
The applicant’s responses to the questions asked of him at the first Tribunal hearing by Ms Hartstein about that conversation were not credible. To reiterate, the applicant’s response to the stepdaughter’s accusation that he “went down once” and that he knows that he “touched” the stepdaughter “down there” was: “I admit I touched you and things like that but that I’m not going to admit to any of that sort of stuff.” The applicant’s explanation at the Tribunal hearing that he was “admitting” to touching the stepdaughter in a non-sexual way, and that he did not understand that she was referring to her vagina, is not persuasive. He plainly knew that the stepdaughter was referring to her vagina, as he acknowledged to police.
The applicant’s first use of the word “admit” in the sentence quoted above most likely indicates a consciousness of guilt. The wife’s advice that the applicant should not call the stepdaughter a liar does not explain why the applicant would expressly admit that he had touched the stepdaughter in response to her saying he had touched her “down there.” Another response would have been to deflect, or to encourage the stepdaughter to keep talking. It is unlikely, in our view, that if the applicant had not touched the stepdaughter’s vagina, he would have used the word “admit” in the context in which he did.
Similarly, the applicant’s repetition to the stepdaughter that he was sorry, after he had said that her allegations could end him up in gaol and she had asked him to admit to what he did and say sorry, is most likely an admission of guilt in relation to the sexual abuse. His explanation that he meant he was sorry that he “kicked her out of home” is not persuasive. In the context of discussing allegations that could result in the applicant being sentenced to imprisonment, and following from his admission that he touched the stepdaughter, the apology is most naturally understood as referring to an apology for sexually inappropriate conduct with the stepdaughter. There is nothing in the context of the discussion which suggests that the applicant is expressing regret for kicking the stepdaughter out of home.
We also consider that the applicant’s comment in that conversation, “if you said ‘stop’ I’d stop” is not capable of referring to martial arts training, as the applicant told the Tribunal at the first hearing. In the context of discussing “mucking around” and he and the stepdaughter massaging each other a lot, it is more likely that the applicant was referring to sexually touching the stepdaughter. That this is the case may also be inferred from his concluding words, “Did I touch you, yeah.”
The applicant admitted that he may have said to the stepdaughter when he left the home in 2011, “Don’t tell anybody what I did because I would get into heaps of trouble.” His explanation that this was a reference to the affair he had that year is not credible. By the time he left the home, the wife knew about the affair and the reason he was leaving. There was no reason to tell the stepdaughter not to tell anybody about the affair in circumstances where it had been exposed. We find that he was referring to his sexual conduct towards the stepdaughter.
The applicant’s evidence that he had hearing difficulties is put in very general terms. He did not say, during cross examination, that he did not hear any of the stepdaughter’s words which are discussed above. We are satisfied that he heard and understood the parts of the conversation we have discussed above.
The applicant has not demonstrated a good understanding of the boundaries of appropriate behaviour with children. He did not accept at the first Tribunal hearing that allowing children into his bed when he was naked was on the wrong side of the boundary of appropriate behaviour, although he accepted that allowing a thirteen year old girl into his bed in those circumstances was. His support for practices of “mucking around” with children, including wrestling, jumping upon one another, throwing water at each other, flicking each other with towels and massaging one another sanctioned a significant degree of physical contact between adults and children in the family home. This meant that appropriate boundaries were not maintained.
The applicant’s opinion that it is appropriate for a thirteen-year old girl and himself to throw water over each other whilst one was in the shower demonstrates a lack of insight. So too does his view that it was appropriate to chase then rip a towel off his pubescent stepdaughter after she had got out of the shower, such that she was then naked. He told the Tribunal at the first hearing that massaging the stepdaughter’s chest area was “all to do with the mucking around, or doing martial arts.” Similarly, at that hearing, he appeared to consider it to be acceptable to massage the stepdaughter in his bedroom whilst she was lying on the bed, so long as it was “on top of the bed.” That is contrary to his statement to police in the interview on 25 January 2017 that he never massaged the stepdaughter in the bedroom alone. He also told police that he had never massaged the stepdaughter on his bed. Such behaviour may be characterised as grooming.

The applicant’s lack of understanding of appropriate boundaries with children also supports the conclusion that he engaged in the conduct the subject of the criminal charges. In the covertly recorded conversation, he appears at times to condone his own conduct, distinguishing it from rape, pointing out how close he and the stepdaughter were and indicating that he would have stopped if she had asked him to do so.
We have taken into account the references the applicant has provided in support of his application and the evidence of the persons who spoke on his behalf. He is plainly a respected member of the community and the evidence indicates that he has acted appropriately when teaching children martial arts. He also has the trust of many family friends, students and some members of his own family. That is not necessarily inconsistent with him having engaged in sexually inappropriate conduct with his stepdaughter.
The wife supports the applicant and does not consider that he is a risk to children. We accept that she has training in child protection and has worked in that area. However, she did not witness the sexual abuse and it would be particularly difficult for her to accept that her husband engaged in the alleged conduct under her roof, without her knowledge. Whilst we have given some weight to her opinion, it ultimately does not change our assessment of the other evidence.
We have also considered the applicant’s evidence that he has a senior position within the public service and has received promotions and merits of commendations throughout his career. We accept that he has acted in a prosocial way in his career and in other areas of his life, such as in responding to bush fires. However, it is possible for persons in positions of authority, and persons who contribute positively to society in certain ways, to sexually abuse children. That is what we have found has happened in the applicant’s case.
The applicant relied upon what he said was the stepdaughter’s dishonesty when saying that the family never spoke about or cautioned her about the risk of paedophiles. This was a reference to the stepdaughter’s evidence in the criminal trial, in response to a question as to whether she understood at the age of 13 that being touched sexually by a stepfather was wrong, that “he made it feel normal.” The stepdaughter then said later in her evidence that her mother never warned her or talked to her about sexual abuse. This was contrary to the mother’s evidence that the stepdaughter was aware at a young age about sexual molestation and it was something that had been discussed in the household.
We do not consider that this inconsistency is sufficient to cast doubt on the stepdaughter’s evidence generally. It may be that the wife recalled incorrectly that the stepdaughter was present when they discussed sexual abuse. On the other hand, the stepdaughter, giving evidence at the age of about twenty-three, may have been mistaken about whether she had heard about sexual abuse at the age of thirteen. There is insufficient evidence to conclude that the stepdaughter was lying about this.
There were also inconsistencies in the witnesses’ evidence about whether the wife said to the stepdaughter after she had disclosed the abuse to her, that the stepdaughter should go to the police. The wife’s evidence was that she told the stepdaughter to go to the police on the day of the stepdaughter’s argument with the applicant. The stepdaughter’s evidence was that she recalled the wife (her mother) telling her to go to the police a few days later. That inconsistency does not mean that the stepdaughter was lying. She may have been mistaken about when her mother told her to go to the police.
There are other matters which support the conclusion that the stepdaughter was telling the truth about the applicant’s sexual conduct towards her. These include her distress when discussing the allegations and L’s mother’s report that the stepdaughter looked very relieved after disclosing the abuse to her mother. The applicant’s admission that the stepdaughter yelled at him in their argument, “You fucked with my head,” also supports the stepdaughter’s allegations of abuse.
For all of these reasons, we are satisfied that the applicant engaged in the conduct the subject of the criminal charges and other sexual conduct towards the stepdaughter about which the stepdaughter gave evidence in the criminal proceedings.
Given this conclusion, we find that the applicant poses a real and appreciable risk to the safety of children. In M v M (1988) 166 CLR 69; [1988] HCA 68, the High Court considered the issue of sexual abuse within the context of family law disputes and said (at [23]):

“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access.”

We have come to a positive finding that the allegations made by the stepdaughter are well-founded. That finding has a decisive impact upon our assessment of risk, and the order to be made in respect of the applicant’s application.

Allegations of abuse of applicant’s children

The Children’s Guardian relied upon the allegations made in relation to the applicant’s own children in 2002 and 2003. We acknowledge that the Family Court rejected these allegations, but we cannot dismiss them as groundless. The possibility that this conduct occurred supports our view that the applicant poses a risk to the safety of children.
F’s complaints that the applicant touched her in the vaginal area are similar to the complaints later made by the stepdaughter. They are part of a pattern of allegations of sexual abuse which support a finding that the applicant poses a risk to children. As indicated above, a Department of Community Services report stated that, although there was insufficient evidence to prosecute, there was no evidence to suggest fabrication by the child (F). The son, G’s, report that his father locked him in the cupboard is not something which a child would be expected to invent. There were repeated allegations of physical and sexual abuse by the daughter, F, and the son, G. Further, as noted above, some of the daughter’s disclosures were made, unprompted, to a psychologist when talking about an unrelated matter.
If the abuse did occur, this might help to explain why G refused to return to his father’s house after seeing him put his hand down the stepdaughter’s pants, and why G called his father a “paedophile” in a text message sent after that incident.
The allegations of physical abuse are consistent with other evidence of the applicant behaving violently. ADVOs were issued against the applicant, including in respect of physical abuse. He was found guilty of two counts of assault in 2000 and the ex-wife claimed that their relationship was characterised by domestic violence (a claim the Family Court accepted). Further, there is evidence that E left the family home for a time after the applicant had bashed him at the age of 16.
For all of these reasons, although we make no finding that the applicant’s alleged conduct in relation to F and G occurred, we are not satisfied that the allegations in respect of them are groundless.

Section 30(1A)

Section 30(1A) of the Act provides that the Tribunal may not make an order under Part 4 of the Act which has the effect of enabling a person to work with children in accordance with the Act unless the Tribunal is satisfied of certain specified matters. As we do not propose to make such an order, it is not necessary to consider the provision any further.

Orders

For the reasons given above, we find that the applicant poses a risk to the safety of children. In those circumstances, we make the following order:

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

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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: 16 January 2023

Medium Neutral Citation:	EQE v Children’s Guardian [2023] NSWCATAD 11
Hearing dates:	29 August 2022
Date of orders:	16 January 2023
Decision date:	16 January 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member J Herberte, General Member
Decision:	The respondent’s decision to refuse the applicant’s application for a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Child protection – Working with children – Whether applicant poses a risk to the safety of children – Where applicant found not guilty of criminal charges relating to sexual conduct with stepdaughter – Whether Tribunal affirmatively satisfied that alleged conduct occurred – Where applicant alleged to have physically and sexually abused his own children – Whether Tribunal is able to dismiss those allegations as groundless
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	CXZ v Children’s Guardian [2020] NSWCA 338 EQE v Children’s Guardian [2021] NSWCATAD 357 M v M (1988) 166 CLR 69; [1988] HCA 68 Office of the Children’s Guardian v EQE [2022] NSWSC 871
Texts Cited:	None Cited
Category:	Principal judgment
Parties:	EQE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Solicitors: Applicant in person Crown Solicitor (Respondent)
File Number(s):	2021/87260
Publication restriction:	The disclosure of the applicant’s name, his wife’s name, his ex-wife’s name, the names of his biological and step-children and the names of other persons mentioned in the Tribunal’s reasons is prohibited.