EQE v Children's Guardian

[2021] NSWCATAD 357

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EQE v Children’s Guardian [2021] NSWCATAD 357

Hearing dates:

10 August 2021

Date of orders:

30 November 2021

Decision date:

30 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
M Bolt, General Member

Decision:

(1) The time for EQE to file an application to review the decision of the Children’s Guardian made on 22 February 2021 is extended to 29 March 2021.

(2) The decision of the Children’s Guardian made on 22 February 2021 is set aside.

(3) The Children’s Guardian is to issue a Working With Children Check Clearance within 28 days from the date of publication of this decision.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 27 Child Protection (Working with Children) Act 2012

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900 (NSW)

Crimes (Sentencing and Procedure) Act 1999

Cases Cited:

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

BKE v Children’s Guardian [2015] NSWSC 523

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

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

CTM v Children’s Guardian [2016] NSWCATAD 280

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262

ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

EQE (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Applicant – Self-represented
Ms V Hartstein (Respondent)

File Number(s):

2021/87260

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

1. The Applicant is a 51 year old married man. He is the father of a daughter (deceased) and a son (18 years) to his current wife, and the stepfather of five other children. He also has a son and daughter from a previous marriage and 10 grandchildren. On 30 October 2015, he was issued with a Working With Children Check Clearance (‘WWCCC’).

2. The Applicant is referred to as ‘EQE’. EQE is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in paragraph [11] below.

3. On 27 January 2017, the Children’s Guardian became aware that EQE recorded a continuous check event. The circumstances involved EQE being charged in relation to aggravated sexual assault, aggravated indecent assault and indecent assault in respect of a female child who was aged between 13 and 16 at the this of the alleged offences. On the same date, the Children’s Guardian cancelled EQE’s WWCCC.

4. On 7 December 2018, EQE was found not guilty of the charges after a criminal trial.

5. On 29 September 2019, he was granted permission to make an early WWCCC application.

6. On 6 November 2019, the Children’s Guardian imposed an interim bar on EQE and advised that she was undertaking a risk assessment.

7. On 27 November 2020, the Children’s Guardian sent to EQE a Notice of Proposed Refusal.

8. On 29 February 2021, the Children’s Guardian notified EQE he had been refused a WWCCC.

9. On 29 March 2021, EQE filed an application seeking this Tribunal to review the Children’s Guardian’ decision to cancel his WWCCC pursuant to s27 of the Child Protection (Working With Children) Act 2012 (‘the Act’). We note the application was not filed within the prescribed 28 day time period. However, this was not agitated by the Children’s Guardian at the hearing. For completeness, we formally grant leave for EQE’s application to be filed out of time.

10. It is this application that is before us for determination.

Background

11. On 22 April 2021, the Tribunal made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is prohibited.

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

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

13. The grounds of EQE’s application for review are:

‘I do not pose a risk to the safety of children. I have previously held a Working With Children Check permit; (WWCXXXXX .) from 16/11/15’

14. The issue to be decided by the Tribunal is whether EQE, following a risk assessment should be granted a WWCCC.

15. In reaching this position the Tribunal is required to consider the factors set out in ss 30(1) and (1A) of the Act and determine whether he poses a risk to the safety and well-being of children. We are also mindful that the risk must be both realandappreciable.

The working with children legislative scheme

16. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

17. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

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

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

20. Section 18 of the Act constrains the Children’s Guardian from granting a WWCCC if, following a risk assessment the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

1. Determination of applications for clearances

…

1. 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.

…’

21. To determine whether a person is a risk to the safety of children, the Respondent must carry out a risk assessment if it becomes aware that EQE is subject to a risk assessment (see section 15 of the Act).

22. As the Respondent became aware of the charges against EQE in the District Court of New South Wales, and following the undertaking of a risk assessment under s 15 of the Act, EQE’s application for a WWCCC was refused on 22 February 2021 under s 18(2) of the Act.

Jurisdiction

23. Part 4 of the Act deals with reviews and appeals. Section 27 of the Act enlivens the Tribunal’s jurisdiction to review a decision made by the Respondent cancelling a person with a WWCCC. Relevant to these proceedings the section provides:

27 APPLICATIONS TO CIVIL AND ADMINISTRATIVE TRIBUNAL FOR ADMINISTRATIVE REVIEWS OF CLEARANCE DECISIONS 

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

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

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

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

…

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

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

3. A "stay order" is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

4. This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 .

[Emphasis added]

24. As a preliminary finding, the Children’s Guardian has refused EQE’s WWCCC and the conditions of section 27(1) are satisfied.

25. Based on this finding and noting that the time for making the application has been extended, there is no dispute that the Tribunal has jurisdiction to hear the matter.

26. Section 30 of the Act sets out the mandatory factors to be considered by the Tribunal in assessing risk and when determining a review application. We have addressed each of the matters under ss 30(1) and (1A) below.

Assessment of ‘risk’

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

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

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

29. Most recently, the New South Wales Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 has affirmed the decision of Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33] concerning the method to be used in assessing risk. Beech Jones J said:

“…Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

30. The Court of Appeal in CXZ describes the assessment of risk as being a single process, instead of what was incorrectly described previously as, a mandatory three-step process (see CXZ at [55]). Simpson JA, describes that process in CXZ at [57], as:

“…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well-founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

31. Where there are multiple considerations, the Tribunal is to evaluate the accumulated weight of the allegations in terms of risk. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to the safety of children.

32. When determining an application for administrative review, s 63 of the Administrative Decisions Review Act 1997 is apposite:

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

   (a)   any relevant factual material, 

   (b)   any applicable written or unwritten law.

The Hearing

33. The hearing took place by audio-visual link. Each of the parties filed written evidence. Despite the matter proceeding by audio-visual link the usual procedures of the Tribunal were maintained. EQE was cross-examined. EQE and the counsel for the Respondent, Ms Hartstein made concluding oral submissions.

Written evidence

34. Each party filed written evidence as follows:

EQE

• Application filed 29 March 2021 – (A1)

• Affidavit EQE sworn 22 April 2021 - (A2)

• Affidavit EQE sworn 21 May 2021 - (A3)

• Affidavit EQE sworn 23 July 2021 - (A4)

Respondent

• Section 58 documents filed 14 May 2021 - (R1)

35. EQE objected to the admission of documents produced in relation to the Family Court proceedings in (R1) and Tab 26 of the bundle. The basis for the objection was relevance. We decided that the documents were relevant to matters to be considered by the Tribunal in undertaking a risk assessment as required under the Act. In the result, the documents formed part of the respondent’s evidence.

36. The parties each relied on written submissions.

Factual Background

37. EQE has been in a relationship with his current wife for 21 years. He has been gainfully employed in his current occupation with NSW Corrective Services for over 33 years.

38. He has also been involved with studying and teaching martial arts to children and adults for over 35 years.

39. In 2015, EQE obtained a WWCCC due to his involvement in the martial arts industry.

40. On 25 January 2017, EQE was charged in relation to sexual offences involving children. The charges related to aggravated sexual assault, aggravated indecent assault and indecent assault in respect of a female child who was aged between 13 and 16 at the time of the alleged offences. The allegations for which the charges were brought related to EQE’s stepdaughter. EQE, both in the criminal proceedings and in this proceeding maintained his denial to all of those charges.

41. On 7 December 2018, EQE was found not guilty by verdict on all charges following a hearing in the District Court of New South Wales.

42. Following the not guilty verdict, EQE returned to his employment with NSW Corrective Services on 9 January 2019.

43. In September 2019, EQE applied to the Respondent to reinstate his WWCCC. Following a number of interim bars, the Respondent on 22 February 2021 notified EQE that she had refused his WWCCC.

44. It is the decision of the Children’s Guardian made on 22 February 2021 that EQE seeks this Tribunal to review.

45. It is not in dispute that EQE was found not guilty of four charges against his stepdaughter, whom we refer to as ‘D’, being:

1. s61M(1) Crimes Act 1900 between 27 February 2008 and 27 February 2009;

2. s60M(2) Crimes Act 1900 between 27 February 2009 and 27 February 2010;

3. s61J(1) Crimes Act 1900 between 19 August 2009 and 26 February 2010; and

4. s61J(1) Crimes Act 1900 between 27 February 2011 and 8 November 2011.

46. The charges involved two counts of assault with an act of indecency and two of sexual intercourse without consent.

47. The first charge between 27 February 2008 and 27 February 2009 is alleged to have involved EQE assaulting D and committing an act of indecency. D alleged, at the time she was 13 years of age, she was kept at home from school. Her mother had gone to work. She entered into the bedroom that her mother and EQE shared where EQE was still in bed. EQE is alleged to have said D felt cold and to get under the sheets. At the time D was wearing pyjamas. She got into bed with EQE who was naked as it was his custom to sleep with no clothes on.

48. While D was in the bed, EQE allegedly rubbed his hand over her body, including her legs and breasts, on the outside of her pyjamas. EQE then asked D to bite his neck, which she did. EQE is then alleged to have put his hand into her underpants and touched the area of her vagina. D said that she could feel EQE had an erection through her clothing. This continued for a few minutes. EQE is alleged to have then told D to go and eat breakfast after which he took her to the place of some family friends.

49. The second charge is alleged to have occurred between 27 February 2009 and 27 February 2010. D alleges that EQE assaulted her in that he committed an act of indecency where, on an occasion in 2009 or 2010, when D was 13 or 14, D alleges she was lying on the bed and EQE was massaging her. D was wearing a pair of red shorts, no top and lying face down on the bed. It is alleged EQE straddled her legs and rubbed massage oil into D’s back, EQE then pulled her pants down to expose her buttocks and, using his thumbs, massaged between the cheeks of her buttocks towards her vagina. D said she could feel his erect penis pushing against the back of her upper leg. EQE allegedly asked her to roll over and when she did so he straddled her waist and massaged her breasts with the oil.

50. The third charge relates to allegations that between 19 August 2009 and 26 February 2010 when EQE had sexual intercourse with D without her consent in circumstances of aggravation, being that she was 14 years of age.

51. D alleges that when she returned from a trip to England with her grandmother on 19 August 2009, in the lounge room of the house, EQE asked her to come and sit on his lap which she did. EQE is alleged to have put his arm around her and then put his hand down her clothing and her underpants, rubbed her vagina with his fingers and inserted his finger into her vagina, but could not do so because it was too tight.

52. The fourth charge relates to allegations occurring between 27 February 2011 and 8 November 2011. D alleges EQE had sexual intercourse with her without consent in circumstances of aggravation, namely, that he was her stepfather. D alleges that after her 16^th birthday on November 2011, EQE went into her bedroom in the morning when she was lying in her bed. He said ‘Get up’. EQE is alleged to have grabbed D in the area of her breasts and whilst she pretended to be sleeping EQE got under the covers with her. He allegedly positioned himself between her legs, placed his mouth on her vagina and licked it. When D tried to push EQE’s head away, he said ‘Are you going to get up?’

46. Following a complaint to the police in 2015, the police were granted a surveillance device warrant in 2016 and recorded a conversation between D and EQE on 18 May 2016 which is set out below.

47. The Respondent has also included in submissions allegations in 2002 and 2003 involving EQE where he was named as a defendant in a number of Apprehended Violence Orders taken out by his first wife and her mother.

48. It is these matters the Respondent has relied upon in making its decision to refuse EQE a WWCCC.

EQE’s evidence

56. EQE’s current domestic arrangements are set out above.

57. EQE since the charges were brought against him and at the date of this hearing denies each of the allegations made against him by D. We set out his evidence in relation to each of those.

58. It is uncontroversial that EQE was found not guilty of each of the charges in criminal proceedings following the trial in the District Court of New South Wales.

The first charge 27 February 2008 to 27 February 2009 - s61M(1) Crimes Act 1900

59. In EQE’s Affidavit sworn 18 April 2021 he states the following which was relevant to each of the four charges:

‘… I made NO admissions to police or anybody ever about touching and interacting physically and inappropriately with her because it never happened.’

60. EQE also said in relation to his conduct generally, that in training children in Jujitsu and close quarters combat there are times in which you physically touch children. However, he denied any inappropriate, sexualised or other touching of children.

61. Each of the allegations were put to EQE about the four periods in which it is alleged he sexually touched or had intercourse with, D. Despite the cross-examination and having reviewed all of the material before us, we are not satisfied we can make a positive finding that any of the circumstances relating to the four charges occurred.

62. We have taken into consideration that two of D’s friends were told by D about the abuse at various times prior to her leaving the home of her mother and EQE. However, in the absence of any other corroborative evidence and given our findings with respect to D’s evidence and the transcript referred to below, there is insufficient evidence in our view that could lead to a positive finding that the particular events occurred as alleged.

63. D’s mother, and two sisters, gave evidence at the trial against all of the allegations and in support of EQE. This in our view is a material factor. We have taken into consideration that two of the other children in the home at the time gave statements of directly witnessing EQE putting his hand down D’s pants on two different occasions. However, these accounts were not corroborative of the allegations made by D. We attach little weight to their evidence.

64. In the interview between EQE and police, EQE denied each of the allegations put to him. EQE agreed that he had massaged D in the circumstances of martial arts training and generally, but never in the bedroom. He said the allegations concerning the charges with which he was charged occurred after a ‘major fight’ and D allegedly said ‘she was going to get him’. EQE acknowledged that the kids would sometimes come into his and his wife’s bed but denied ever getting into D’s bed. EQE denied telling D in 2011 ‘Don’t tell anyone, I could get into heaps of trouble’.

65. Having considered the material filed in these proceedings and also the benefit of seeing EQE giving evidence in these proceedings, we find him to be an honest and reliable witness.

The transcript of a conversation between D and EQE on 18 May 2016 - police surveillance device warrant

66. Following D complaining to the police in 2015, the police obtained a surveillance device warrant. The Respondent relied upon this conversation in the cross-examination, particularly, where it is alleged EQE admitted that he touched D.

67. We note that the transcript indicates that only part of the conversation was recorded and in that respect we have given due weight to it, particularly, where parts of the conversation have not been transcribed or were inaudible.

68. For completeness, those relevant parts of the transcript which the Respondent has relied upon are set out:

‘Q6   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 used to rub 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 fucking 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 us 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’m 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 until you admit it.

A   There is nothing to admit to because I’m not going to admit to 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 you remember it all.

A   I don’t remember it that way at all and I 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 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 D.

Q32   Well I don’t think I can get over this.

A   Okay.

Q33   I don’t know why you did it and you’re not going to tell me you are. 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 gaol 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’ve said something like that I [inaudible] D 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 we working?

Q37   No.

A   I miss you, your mum misses you, Z 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 D.

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 did 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 got 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, you 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 head in the last few weeks because 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   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 straightaway and I denied it. I said ‘No’. I said to her that D gets 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 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 were just …

Q52   No, I know it happened, I’m not making this stuff up. I don’t know how I am ever 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 are 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 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.’

69. Counsel for the Respondent carefully cross-examined EQE about what was said and recorded in the transcript. EQE admitted that mucking around with D involved: ‘like a father would, we all horse played. We would wrestle, attack each other, water fights, those things. I can’t give you a specific reason, it was not sexual’. He said that being ‘close and affectionate’ meant ‘the normal affection of a father’.

70. EQE admitted that when D was 13 years of age he would go into the shower and throw water on her as he did with ‘all of the kids’. He described the shower as having an opaque clear screen, similar to a bathroom design in the 1970s, it was a frosted door and he threw water over the top of it. EQE described playing around as being ‘it could be water fights, flicking each other with tea towels, we came from a large family, playing pranks, wrestling in the dojo, wrestling those sorts of things’.

71. EQE said that it was his intention when he had the conversation in the park, not to challenge D. He was aware D was going through a difficult time and said it was an opportunity to allow her to communicate with him. At this stage, he did not know she had gone to the police. When he was asked why he used the words ‘I’m not going to admit anything’ he said he did not want to call her a liar. When asked about that he said: ‘I was told by her mother, mental health and psychologist all said ‘do not call her a liar, it could tip her over the edge’. I was very careful not to call her a liar.’ We accept his evidence.

72. EQE agreed that he had told the police during an interview on 25 January 2017 that he regularly massaged D. It was possible that the massage oil he used was purchased in Fiji and that he possibly could have asked her to remove her shirt and bra. EQE said that he possibly massaged the top of her chest or shoulders as he did every other member of the family when massaging.

73. EQE agreed that he said he admitted in the conversation that he had touched D, but not sexually.

74. EQE was asked what he meant by saying ‘We were touchy feely’. He answered ‘We were close, touching, hugging, comfortable touching but not sexually. The kids would jump on me, all the kids were touchy.’ EQE denied a proposition that being touchy feely with a 13 year old was inappropriate.

75. Despite a robust cross-examination we find that EQE’s evidence was not challenged to the extent that we can make a positive finding that the alleged inappropriate and sexual touching in relation to each of the four charges occurred. Having read the entire part of the transcript which has been reproduced above, EQE maintained his denial of any inappropriate touching of D on many occasions that she raised this with him. We accept EQE’s explanation that he admitted to touching D for the reasons he set out and that he did not wish to call her a liar. Despite submissions of the Respondent, we find that EQE’s responses to questions by D are not admissions of the allegations made against him.

Circumstances surrounding Apprehended Violence Orders concerning EQE between August 2001 to August 2003 and allegations of sexual abuse

76. EQE separated from his first wife in 2001 and moved in with his current wife. Two children from his previous marriage were involved in bitter litigation between EQE and his former wife in the Family Court of Australia. EQE’s former wife also brought proceedings in the Local Court concerning the two children of their marriage.

77. At the time of these proceedings and the Judgment of Flohm J on 25 January 2006, child 1 was aged 8 and child 2 was aged 6½ years. Following the separation of their parents, the children lived with their mother and had contact with their father.

78. On 16 or 18 December 2001, following an incident between EQE and his former wife, EQE’s former wife obtained an interim AVO which resulted in him not seeing his children for about 2 months. On 11 January 2002, EQE filed an application for contact to see his children. The mother of child 1 and child 2 applied for another interim AVO for her protection. Orders were made by consent for the father to have alternate weekend and school holiday contact.

79. On 25 March 2002, final orders were made by consent. On 3 April 2002 further interim orders were made for the protection of the mother. Allegations were made by EQE’s former wife that he and his current wife hit child 1 and child 2.

80. In November 2002, EQE’s former wife made allegations of EQE perpetrating sexual abuse on child 2. In August 2003 both child 1 and child 2 also made complaints of sexual abuse by EQE or his current wife.

81. Flohm J, after a lengthy trial consisting of more than 18 days at trial, handed down a judgement and found no evidence of physical or sexual abuse of either child 1 or child 2 by EQE or his current wife. Flohm J made it clear that the children should reconcile with their father and made orders for him to have contact with them. We have placed significant weight on the findings of the Family Court in relation to the allegations concerning the children. The Family Court has a paramount duty to ensure the best interests of children in determining litigation that proceeds before it. This is a material factor we have considered.

Submissions by the Applicant

82. EQE contends the Tribunal should find in his favour and set aside the decision of the Respondent. He says that the evidence before the Tribunal is not sufficient for a finding to be made that he is a real and appreciable risk to the safety of children. For the reasons we set out below we accept his submissions and find accordingly.

Submissions of the Respondent

83. The Respondent submits that the Tribunal should affirm its decision because EQE poses a real and appreciable risk to children due to the circumstances related to the charges.

Section 30 (1) considerations

84. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

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

85. The four offences with which EQE was charged are extremely serious. They involve both physical and indecent and sexual assaults against children, with aggravating features.

86. We are not satisfied the facts and circumstances and all of the evidence which we have before us enables the Tribunal to make a positive finding that any of the allegations relating to the four charges occurred. We have placed particular weight on the evidence adduced in the criminal proceedings and the findings of the Jury in entering a not guilty verdict. The transcript of the meeting in the park between EQE and D is material in our finding. Despite cross-examination by Counsel for the Respondent, EQE maintained each and every denial of the allegations which we note has been consistent from the time in which police began their investigations concerning the charges. We do not accept the Respondent’s argument that EQE made admissions in that conversation. On the contrary, he maintained his denial of any inappropriate conduct and we accept his evidence that where he admitted that he did touch D, he was treading cautiously so as to not upset her general mental health.

85. We have also taken into consideration the AVOs and the allegation concerning EQE sexually assaulting child 1 and child 2 in the early 2000s. Given our findings as set out above, we are not satisfied that those matters enable this Tribunal to find that EQE is a real and appreciable risk to the safety of children.

86. Irrespective of our finding in that regard, the additional allegations are of course serious and are matters we have taken into consideration.

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

89. The alleged offences occurred between February 2008 and November 2011.

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

90. EQE was aged between 38 and 41 years.

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

91. D was aged between 13 and 16 years at the time of the alleged offences.

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

92. EQE was 38 at the time of the first alleged offence.

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

93. It is obvious and conceded in evidence that EQE knew D was a child. D was EQE’s stepdaughter.

(g) The person's present age.

94. EQE at the time of this hearing was 51 years of age. EQE is 54 years of age.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

95. EQE has no other criminal record.

96. We have considered in 2002 to 2003 EQE was named as a defendant in a number of AVOs taken out by his first wife in relation to the matters set out above.

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

97. Given our findings as set out above, we are satisfied that EQE has no likelihood of any repetition of the circumstances in which he was charged relating to children above those of a reasonable person.

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

98. Not relevant.

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

99. We have taken into consideration the affidavits filed by EQE 18 April 2021, 19 May 2021 and 20 July 2021, including documents he submitted to the respondent in 2019 from a psychologist and 3 character references.

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

100. Not relevant.

(k) Any other matters that the Children's Guardian considers necessary.

101. Not relevant.

Our findings

102. Having considered the mandatory factors in s30(1), we find that the circumstances with which EQE was charged did not occur on the balance of probabilities. Therefore, EQE does not pose a real and appreciable risk to the safety of children. Nor do the facts and circumstances that relate to the early 2000 events and the AVOs relating to EQE’s former wife and two children of that marriage. After reviewing all of the evidence, and considering the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, he should be granted a WWCCC.

Section 30 (1A) consideration

103. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

104. The uncontested evidence before the Tribunal is that EQE has been an employed officer within NSW Corrective Services for over 33 years. He has also been a martial arts instructor and educator for over 30 years. There is no evidence before us of any misconduct by EQE in him carrying out that role as a martial arts instructor that counts against him. Given our findings, the findings of the District Court of New South Wales relating to the criminal charges and the findings of the Family Court, we find that a reasonable person knowing all the facts and circumstances would allow his or her child to have direct contact with EQE whilst unsupervised by another person.

105. We also find that it is in the public interest for EQE to continue in his career as an officer of NSW Corrective Services and martial arts instructor and educator should he wish to do so and require a WWCCC to fulfil that ambition.

Orders

1. The time for EQE to file an application to review the decision of the Children’s Guardian made on 22 February 2021 is extended to 29 March 2021.

2. The decision of the Children’s Guardian made on 22 February 2021 is set aside.

3. The Children’s Guardian is to issue a Working With Children Check Clearance within 28 days from the date of publication of this decision.

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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: 30 November 2021