GGY v Children's Guardian

[2025] NSWCATAD 63

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GGY v Children’s Guardian [2025] NSWCATAD 63

Hearing dates:

16 October 2024

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Bryant, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

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

(2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited.

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited.

(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — witnesses not made available for cross-examination — whether the applicant poses a risk to the safety of children

Legislation Cited:

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Criminal Procedure Act 1986

Cases Cited:

Arizabaleta v R [2023] NSWCCA 217

BKE v Office of the Children's Guardian [2015] NSWSC 523

CDX v Children’s Guardian [2016] NSWCATAD 17

Children's Guardian v BRL [2016] NSWSC 1206

Children’s Guardian v CVE [2017] NSWSC 1342

Commission for Children and Young People v V [2002] NSWSC 949

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

CXZ v Children’s Guardian [2020] NSWCA 338

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208

Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257

Health Care Complaints Commission v Singh [2023] NSWCATOD 124

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

GGY (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J R Walker (Applicant)
C Chiam (Respondent)

Solicitors:
Carmody Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00068527

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the disclosure by way of publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: 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.

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review under s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of the respondent’s decision not to grant him a working with children check clearance (WWCCC). The respondent refused the WWCCC following a risk assessment because it is satisfied that the applicant poses a risk to the safety of children.

2. The applicant applied for a WWCCC on 16 February 2022. On 28 February 2022, the respondent issued a Notice of Interim Bar and Request for Information to the applicant, confirming that the respondent was required to undertake a risk assessment because the applicant had been charged with sexual offences against his child (“B”). Those charges were dismissed in early 2022, before the applicant applied for a WWCCC.

3. On 1 February 2024, the respondent notified the applicant that it had refused to grant him a WWCCC under s 18(2) the Act, citing the sexual offences he had previously been charged with involving B. In the grounds for the refusal the respondent acknowledged that even though the charges were withdrawn and dismissed, the respondent considers it reasonably likely that the conduct occurred as alleged.

4. The applicant filed the application with the Tribunal for administrative review on 22 February 2024.

5. The respondent opposes the application.

6. If the Tribunal allows the application, it may order the respondent to grant the applicant a WWCCC under the Act.

7. Due to the sensitive nature of these proceedings, an order was made on 28 March 2024 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym 'GGY' has been used for the applicant's name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

8. For the following reasons, we have decided to affirm the respondent's decision to refuse the applicant a WWCCC.

Material before the Tribunal

9. The applicant provided three affidavits, two affidavits from his legal representative Mark Carmody, a report from registered psychologist Dr Thomas Dornan from LSC Psychology, his Application to the Tribunal, and written submissions to the respondent and the Tribunal.

10. The respondent provided three bundles of documents, a confidential affidavit of Ms Sue Huang from the NSW Crown Solicitor’s office, and written submissions to the applicant and the Tribunal.

The hearing

11. The applicant objected to specific material in the respondent’s bundle of evidence from being received by the Tribunal. Submissions were received by the Tribunal from both parties in relation to this matter and there was a closed hearing during which confidential information was provided by the respondent to the Tribunal. This is addressed further below.

12. The applicant gave oral evidence and was cross-examined at the hearing.

13. The psychologist, Dr Dornan, gave oral evidence and was cross-examined by audio visual link at the hearing.

14. Both parties made oral submissions at the hearing.

The applicant’s case

15. The applicant submits that the correct and preferable decision is for the respondent's decision to be set aside, and for the Tribunal to order the respondent to grant him a WWCCC. The applicant submitted that the Tribunal can be satisfied that the considerations in s 30 of the Act have been met and that his application should be allowed.

The respondent’s case

16. The respondent submitted that the Tribunal should dismiss the application and affirm the decision to refuse the applicant a WWCCC. The respondent submitted that the applicant poses a risk to the safety of children and should not be granted a WWCCC on the basis of the considerations in s 30(1) and s 30(1A) of the Act.

Legislation

17. The Act establishes a regime of checks and clearances for persons working with children in NSW. The object of the Act is as follows:

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.

18. The paramount consideration in the operation of the Act is found in s 4:

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.

19. The following terms are defined in s 5 of the Act:

5 Definitions

(1) In this Act—

…

adult means a person who is 18 years of age or older.

…

child-related work—see sections 6 and 7.

children means persons under the age of 18 years.

…

working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work.

20. Risk to the safety of children is defined as follows:

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

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

21. By the operation of s 6 (child-related work), s 8 (restrictions on engaging in child-related work) and s 9 (employers must require clearance or current application) it is unlawful for a person to engage in child-related work without a WWCCC (or a current application for a clearance) and for an employer to employ a person in child-related work without the same.

22. Section 12 provides for two classes of clearances: volunteer – for a volunteer to engage in unpaid child-related work (12(1)(a)), and non-volunteer – for a worker to engage in paid and unpaid child-related work (12(1)(b)).

23. Section 13 allows a person to apply to the Children’s Guardian for a WWCCC.

24. Various exemptions to the need for a WWCCC are provided in the Act and the Child Protection (Working with Children) Regulation 2013.

25. Section 14 specifies that an applicant for a WWCCC is subject to an assessment requirement as follows:

14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

26. Section 15 makes provision for the Children’s Guardian to conduct a risk assessment as follows:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children’s Guardian may consider the following—

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

(c) the age of the person at the time the matters occurred,

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

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

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

(g) the person’s present age,

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

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

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

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

(4A) The Children’s Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children’s Guardian is satisfied—

(a) a reasonable person would allow the person’s child to have direct contact with the applicant or holder—

(i) while not directly supervised by another person, and

(ii) while the applicant or holder was engaged in child-related work, and

(b) the making of the determination is in the public interest.

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

27. Section 18(2) applies where the applicant is subject to a risk assessment and provides that the Children’s Guardian must grant a WWCCC unless it is satisfied that the person poses a risk to the safety of children:

18 Determination of applications for clearances

…

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

28. Section 27 makes provision for administrative review under the Act as follows:

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.

29. Section 30 provides guidance to the Tribunal when determining an application for review:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part—

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that—

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

30. Schedule 1 specifies triggers for a risk assessment under the Act. In this case the relevant part is found in Schedule 1, clause 1(1)(b):

Schedule 1 Assessment requirement triggers

1 Offences

(1) Proceedings have been commenced against a person—

…

(b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

Consideration

Background

31. The applicant is a 48-year-old man living in Sydney. The applicant applied for a clearance under the Act for the purposes of maintaining his employment. The applicant is currently on special paid leave, subject to the outcome of this review application. He is unlikely to retain his employment without a WWCCC.

The allegations and criminal charges

32. The respondent relies on allegations made by the applicant’s daughter, B, in 2021 to support its submissions that the applicant poses a risk to the safety of children. B was 13 years old at the time the allegations were disclosed.

33. B first made allegations to her mother about the applicant on 9 April 2021. B made four allegations. One of the allegations was said to have occurred about two years earlier, two of them about five years earlier, and the timing of the fourth allegation was not specified. On the same day B’s mother assisted B to speak to a counsellor on a help line about the matter and arranged for B to speak to a family friend who is a paediatrician about what happened.

34. On 10 April 2021, B’s mother reported the matter to the police.

35. B participated in a recorded interview with police on 13 April 2021. B made an additional allegation during the interview.

36. On 14 April 2021, B's mother gave a statement to police.

37. On 19 June 2021, B's mother made a pre-text call to the applicant which had been arranged by NSW Police. The applicant had commenced an application for divorce from B's mother on 9 April 2021 – the same day B disclosed the allegations to her mother – and the divorce and financial matters were referred to during the call. When B's mother referred to the allegations, the applicant said, "I don't know what you're trying to do. Like ... playing your games or whatever it is I, I, I'm not going to carry on with this. It's ridiculous". The applicant said other similar things during the pre-text call consistent with a denial of the allegations. The applicant maintains that the allegations emerged in the context of a disagreement about matrimonial property and should be considered in that light.

38. The allegations from B are very serious. Drawn from the police facts, they are as follows:

1. On one occasion between 2012 and 2015 the applicant put B on the counter in the main bedroom’s ensuite bathroom at the family home and put his penis inside B’s vagina. (“Allegation 1” or “A1”).

2. A few days after the first incident, B approached the applicant and asked if they could do what they did last time. The applicant laid on his back on the bed in the main bedroom at the family home and with B on top of him, put his penis inside B’s vagina and anus. (“Allegation 2” or “A2”).

3. On a weekend in 2014 or 2015 the applicant and B were in the pool at the family home and the applicant removed B’s bathing suit. The applicant was holding B with one hand and rubbed B’s vagina with his other hand. (“Allegation 3” or “A3”).

The first three allegations are said to have occurred at the family home where the applicant, B’s mother and B lived from 2009 to February 2017 (“the first home”). B would have been under 10 years of age at the time of the first two incidents. In February 2017, the applicant, B and B’s mother moved to the applicant’s parents’ house (“paternal grandparents' house”).

4. On a day between February 2017 and 2019 B was in her bedroom at the paternal grandparents' house and the applicant came into the room and got into bed with her. The applicant put something inside of her vagina but B was unsure what it was. The applicant left the room sometime later. (“Allegation 4” or “A4”).

5. A fifth allegation that was referred to, but for which the applicant was not criminally charged, was said to have occurred on an overseas skiing holiday in March 2015. The applicant and B were sharing a hotel room. Late one night the applicant and B were lying in bed together on their sides with the applicant facing B’s back when the applicant put his penis into B’s vagina. (“Allegation 5” or “A5”).

39. On 26 July 2021, the applicant was arrested and charged with four offences:

1. Sexual intercourse with a person under 10 years of age (2 counts) under s 66A(1) of the Crimes Act 1900 (Crimes Act), relating to A1 and A2, respectively.

2. Aggravated indecent assault with a victim under authority under s 61M(1) of the Crimes Act, relating A3.

3. Sexual intercourse with a child under 10 years of age under s 66A(1) of the Crimes Act, relating to A4.

40. On 27 January 2022, all four charges were discontinued by the NSW Director of Public Prosecutions (DPP) prior to charge certification. As part of that resolution the Local Court of NSW made an Apprehended Domestic Violence Order (ADVO) until B's 18th birthday. The order was made by consent and without admissions by the applicant. The ADVO stipulates, among other things, that the applicant must not approach B or contact her in any way, unless the contact is through a lawyer. The police applied for the ADVO, and the applicant consented to it as a condition of the charges being withdrawn. It has not been varied since it came into effect.

41. An offence under s 61M and s 66A of the Crimes Act is a trigger offence under Sch 2, cll 1(e) and 1(h) of the Act, respectively.

42. The applicant has consistently denied the allegations and gave evidence to that effect before the Tribunal.

43. The applicant’s daughter B was not called as a witness before the Tribunal.

44. The parties made submissions about the admissibility and weight to be given to certain documentary evidence in relation to the allegations from B which are addressed below.

Administrative review under s 27 of the Act

45. Subsection 27(1) allows a person who has been refused a WWCCC to apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (ADR Act) within 28 days after notice of the decision was provided to the person. The decision under review is dated 1 February 2024. The application for administrative review was filed on 22 February 2024, within the 28-day period.

46. In determining an application for review, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: s 63 of the ADR Act. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2) ADR Act.

47. The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

48. Neither the applicant or the respondent bears an onus in an application for review under s 27 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40].

49. The applicant has a duty to fully disclose any matters relevant to the application to the Tribunal: s 27(4) of the Act.

50. Following an application under s 27, a clearance may not be granted subject to conditions: CDX v Children’s Guardian [2016] NSWCATAD 17 at [36].

51. Under s 18(2), the Children’s Guardian, and thus also the Tribunal, must grant a WWCCC unless it is satisfied that the applicant poses a risk to the safety of children: Children’s Guardian v CVE [2017] NSWSC 1342 at [20].

52. Under s 30(1A) of the Act an order enabling a person to work with children may not be made unless the Tribunal is satisfied that—

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

53. The Tribunal must consider each of the matters in s 30(1) of the Act to assess whether it is satisfied that the applicant does or does not pose a risk to the safety of children. If the Tribunal is satisfied that the applicant does not pose a risk to the safety of children, it must then assess whether it is satisfied that the (a) “reasonable person” test and (b) the “public interest” test in s 30(1A) of the Act have been met: Children’s Guardian v CVE [2017] NSWSC 1342 at [23], [26].

54. The Tribunal’s approach to the exercise is protective not punitive: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61].

Whether the Tribunal is satisfied that the applicant does not pose a risk to the safety of children

55. “Risk to the safety of children” is defined in s 5B of the Act as “a real and appreciable risk to the safety of children”.

56. The meaning of “risk” was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (cited with approval in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]):

What one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of the children’.

57. The Tribunal’s process of assessment of risk was described by Simpson AJA in CXZ v Children’s Guardian [2020] NSWCA 338 at [57]-[58] as follows:

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.

It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

58. In the same case Basten JA put the Tribunal’s task in these terms (CXZ v Children’s Guardian [2020] NSWCA 338 at [26]):

Ultimately, NCAT must be consider whether a clearance will create a real and not fanciful risk to the safety of children.

Whether certain documents should be admitted into evidence, for what purpose and the weight to be afforded to them

59. Both parties referred the Tribunal to the case of Children's Guardian v BRL [2016] NSWSC 1206 (BRL) on the question of the admissibility and weight to be given to various documents that the respondent sought to rely upon concerning the allegations from B.

60. The documents at issue were two transcripts from police interviews with B on 13 April 2021 of 62 minutes (44 pages) and 8 minutes (6 pages) and a police statement from B’s mother dated 14 April 2021 of seven pages.

61. The applicant objected to these documents being received by the Tribunal and gave several reasons related to procedural fairness for this as follows.

1. In relation to the police interview transcripts: B was not called as a witness by the respondent before the Tribunal in these proceedings. The applicant was not sure why she was not called. The applicant would cross-examine B if given the opportunity but in the circumstances was unable to do so.

2. In relation to the police statement: B’s mother omits the details of purported conversations that she had with the police, and provides a brief statement that B spoke to a counsellor and paediatrician on 9 April 2021 but no other details.

3. If the documents objected to are received by the Tribunal, the applicant is denied procedural fairness. The evidence is untested and uncorroborated. The Tribunal is not able to “see” the evidence because these witnesses have not been called. For this evidence to be reproduced only on paper creates a real and significant barrier to the evidence being tested by the applicant, for consistency and so forth.

4. The applicant’s objection is the same as was considered in BRL where the Tribunal’s decision to admit four statements into evidence for the limited purpose of proving that the allegations they contained had been made, and not as evidence of the truth of the assertions, was upheld. The applicant referred the Tribunal to various paragraphs of the judgment of Fagan J in BRL, where His Honour stated:

29   In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the complainant and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none).

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

31   It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.

32   What might well have made a difference to the plaintiff's case regarding the gravity of the risk that these allegations may be truthful would have been some evidence tendered to the Tribunal to explain why the complainant would not testify at trial. The possibilities include, on the one hand, that the allegations were false. At the opposite extreme is the possibility that family pressure was exerted on the complainant, given that the complainant's father was the brother-in-law of the defendant. It is possible that at the least she was unsupported by her father in coming forward with the complaints. These competing possibilities, and others which may be imagined, remain matters of speculation, because the Children's Guardian has not inquired into, let alone adduced evidence of, the reasons for the complainant’s conduct. If either of these latter possibilities had been supported by investigation on the part of the Children’s Guardian and by the tendering of evidence, a case could have been made for receiving the statements for all purposes (even without opportunity to cross examine) and then discounting their weight.

62. The applicant submitted that B's police interviews can be given little if any weight and that if admitted into evidence should be treated as recording the fact that allegations were made rather than the truth of the assertions contained within them.

63. The applicant’s position was that these matters cannot be tested in circumstances where B is not available to give evidence. Due to limited weight of B’s evidence, the applicant considered that the Tribunal cannot be satisfied that the allegations occurred and would need to focus on the possibility that the allegations occurred.

64. The respondent submitted that the decision in BRL does not require the Tribunal to receive the statements as evidence only of the allegations being made, and not of the truth of what was asserted. As Fagan J acknowledged in BRL at [29] it would have been "open" for the Tribunal to accept the statements as truth of the facts asserted in them, subject to consideration of how much weight they should be given. While BRL affirmed that procedural fairness should be afforded to the applicant, other factors such as the seriousness of the allegations and the lack of apparent reasons why the complainant was not available to give evidence were also relevant considerations in the Tribunal’s approach to the matter. The respondent argued that BRL is able to be distinguished from these proceedings. The respondent pointed out that:

1. An explanation for the reason why B was not called to give evidence is contained in the confidential affidavit of Ms Sue Huang from the NSW Crown Solicitor’s office. This was the subject of a closed hearing during the proceedings.

2. Unlike in BRL where the complainant was aged 30 at the time of the proceedings, B is only 17 years old. The respondent’s decision not to call B as a witness is understandable as she is still a child, did not wish to continue the criminal proceedings, and requiring B to be called as a witness would subject her to cross-examination, which itself is one possible reason why she did not wish the criminal proceedings to continue.

3. Where the paramount purpose of the Act is the safety, welfare and well-being of children (s 4) it would be perverse if the respondent was required to call a child as a witness so that her complaints could be tested through cross-examination, particularly when an ADVO in force to prevent interactions between the applicant and B.

4. The evidence of the allegations made by B should be accepted into evidence, or at the very least, that evidence should be accepted as proof of the fact that there is a risk or a possibility that the allegations are true.

Closed hearing

65. [NOT FOR PUBLICATION]

66. B’s mother was not called as a witness in these proceedings. The Tribunal notes that there was no submission from the applicant to the Tribunal that the applicant would cross-examine B’s mother if given the opportunity.

67. The current case differs from BRL because an explanation for the reasons why B and B’s mother were not called to give evidence has been provided in the confidential affidavit of Ms Sue Huang from the NSW Crown Solicitor’s office. Therefore the case may be made, (as referred to in paragraph [32] of BRL), for receiving the police interview transcripts and police statement for all purposes (even without opportunity to cross examine) and then discounting their weight.

68. After considering the submissions made by the parties, and the information obtained during the confidential hearing, the Tribunal determined to receive B’s police interview transcripts and B’s mother’s police statement as evidence of the facts asserted in them, subject to consideration of how much weight should be given to them.

The approach to be taken to the police interview transcripts

69. The applicant gave six reasons why the evidence in the transcripts from police interviews with B should be given little if any weight:

1. The passage of time. B was very young, around 5 years old at the time of some of the allegations, and was still young, being only 13 years old, at the time of the disclosures. The applicant referred to the comments of Leeming JA in Arizabaleta v R [2023] NSWCCA 217 (Arizabaleta) at [102] regarding the plasticity of human memory and the observation that memory may be distorted over time, when a witness is asked, repeatedly, to give their best account of what occurred. B was asked to give an account of what occurred four times: to B's mother on 9 April 2021 (the date of the first disclosure), to a paediatrician on the same day, to a counsellor on the same day, and to the police four days later, on 13 April 2021. It appears that over the course of B being asked about the allegations four times B was struggling to understand what happened. The applicant also referred to Leeming JA’s observations in Arizabaleta at [104], that the accuracy of witness testimony may be unreliable despite their belief in its truthfulness - exacerbated by the practices and incentives of litigation, possibly in this case to secure assets in family law settlement.

2. The lack of detail provided. Missing from the disclosures are key details about the alleged conduct and surrounding details. For example, B is not sure precisely what happened, how it happened, what she was wearing when it happened, how long it occurred for, what made it stop, or whether anything was said during or after the alleged conduct (when referring to A4, for example).

3. B’s own doubts about what happened. B was uncertain and unsure at times. B expressed doubts about the reliability of her memory and whether she believed that her disclosures were true, such as whether they were a "dream" and that it was only a later incident that made her believe earlier conduct "probably" occurred (when referring to A4).

4. Some of the allegations are susceptible to innocent explanations. In one instance B expressed doubt as to whether the conduct alleged was intentional or whether the applicant was asleep (when referring to A5). It is not clear whether B’s mother’s opinion has influenced B or whether this is her own memory. Regardless, it suggests on B's version of events (concerning A5) there may be an innocent explanation, or it did not occur.

5. The real risk that B’s memory has been contaminated. B’s memory may have been reconstructed or otherwise influenced by her mother. Firstly, the allegations were first made on the same day that the divorce proceedings were commenced and in the context of a dispute about the financial settlement. Secondly, B’s interview transcript suggests that information from B's mother may have influenced B in explaining her disclosures (for example, "Uh, I don't remember what country. But mum said it might have been Argentina, I think" and "And my mum said that she could sort of believe that happening where, um, where he accidentally, like, initiates in the middle of the night when he's half asleep" – both in relation to A5). Leaving aside that B has never travelled to Argentina, there is a concern about whether B's recollection is really her own. The interview does not clarify the number of times B has spoken to her mother about the disclosures or what aspects of them. The question arises as to what extent B's evidence may have been influenced or contaminated by B's mother's memory, opinions or feelings.

6. The improbability of the allegations, particularly those earliest in time – the first and second allegations. The contention here is the improbability of the nature of the conduct alleged in the context of the physical differences between an adult male and a female child, particularly given B's young age (for example, in relation to A2).

70. The respondent submitted that:

1. The Tribunal should have regard to the directions and warnings contained in Part 5 of the Criminal Procedure Act 1986 (CP Act) when assessing the credibility of B’s evidence, even though it does not directly apply to these proceedings (s 290):

in assessing the complainant's account of the alleged offences, the Tribunal should have regard to the fact that:

(a)   There is no typical or normal response to non-consensual sexual activity, and people may respond in different ways: s 292B.

(b)   People who do not consent to a sexual activity may not be physically injured, and the absence of an injury does not necessarily mean that a person is not telling the truth about an alleged sexual offence: s 292C.

(c)   Experience shows that people may not remember all the details of a sexual offence, may not describe a sexual offence in the same way each time, and that it is common for there to be differences in accounts of a sexual offence: s 293A(2).

(d)   An absence of complaint, or delay in complaining, does not necessarily indicate that the allegation that the offence was committed is false: s 294(2).

These provisions of the Criminal Procedure Act were taken into account by the Tribunal when determining the credibility and reliability of a patient who made allegations of misconduct of a sexual nature against a healthcare practitioner: see Health Care Complaints Commission v Singh [2023] NSWCATOD 124 at [232].

2. B’s police interview reveals two reasons for the delay in making the complaints. First, she was in denial about the incidents and pushed them down to continue living her life, and second, that she was worried that if she disclosed the incidents that her father would leave her.

3. The applicant’s submission that the allegations disclosed in B’s police interview were influenced by B's mother because the allegations were raised on the same day the divorce proceedings were commenced should not be accepted. B's mother’s police statement suggests that B raised the allegations sometime around midday or early afternoon on 9 April 2021. The divorce application was started at 5:46 pm on 9 April 2021, which appears to be after B first raised the allegations.

4. The applicant’s contention that B's account omits key details about the alleged conduct and surrounding circumstances should not be accepted. Firstly, B gave many of these details when pressed. Secondly, the absence of certain details is explained by the police interviewers not asking questions about them. Thirdly, the applicant’s contention assumes that a victim of a sexual assault remembers all the details of the offence, contrary to s 293A(2)(a)(i) of the CP Act.

5. In relation to B’s credibility, B acknowledging various aspects of the disclosures, such as the reference to Argentina (in relation to A5), as being not completely accurate serves to enhance her credibility. B told the police up front where she was unsure in relation to the timing of the allegations or if the details she was providing may not be reliable, which is mature for a witness of her age.

6. In B’s police interview she distinguishes between information provided by her mother and the information that is coming from B. For example, B stating her mother’s view regarding the applicant accidentally initiating in the middle of the night when he is half asleep (in relation to A5). This is useful in the respondent’s submission. Just because B incorrectly nominated a location at the time (Argentina) does not mean that the alleged conduct did not happen elsewhere.

71. The Tribunal has reviewed the police interview transcripts carefully and cautiously, factoring in the concerns raised by the applicant above in approaching the evidence. We have also had regard to the respondent’s submissions.

The police interview transcripts

72. Around 5 minutes into B’s police interview, B made the following disclosure:

Q25:    […] so tell us, um, what you’ve come here to talk to us about today.

A:    Um, probably, uh, what happened to me, but, um, isn’t legal and shouldn’t have happened.

Q26:   Yeah. And what was that?

A:   Um, when I was younger in primary school my father touched me in ways that, um, I didn’t know you, um, should, should have been touched.

Q27:   Uh-huh.

A:   And legally, um, he shouldn't have touched me in, in that way with what he touched me with.

Q28:   Uh-huh. Can you tell us a bit, bit more about that.

A:   Uh, so the first time it was at our old house. Um, he put me in the bathroom on the counter and, um, just told me, um, what to do and just stay there. And I didn't have any obligation against it 'cause I just did as I was told. And, um, he put himself inside of me. And, um, and 'cause I didn't know what it was I, I liked it and I liked the feeling. And, uh, I'm pretty sure the day after, uh, I went to him and asked for it again. And he asked me if I really wanted to do it, and I said yes. And he, um, put himself inside of me in my vagina and my, and anally. Um - - -

Q29   Yeah.

A:   And a few years after that, um, during that period I, um, we didn't really talk about it. And it, um, and he said that we couldn't do it when Mum was home. And I didn't really, I was confused by that, but didn't really question it. And, um, in the pool he would also, um, we would both take off our, off our clothes and touch each other a bit. And also, so a few years later after that in our, my house that I used to be at, uh, he, he would, um..... with me and, um, he would sit with me. And, but then, um, I'm not sure if he just touched me or put something inside of me 'cause I wasn't really looking or paying attention, paying too much attention to it. Uh, and also, once we went overseas with just me and him, as we were both skiing, and um, we were sharing the same bed and also when I thought he was asleep he also did it to me.

73. This disclosure is of some importance as it was a largely unprompted utterance in B’s own words and appears to be what framed the rest of the police interview. Further details were obtained from B about the allegations during the course of the interview. What became Allegations 1 and 2 are being referred to in A28 and Allegations 3, 4 and 5 are being referred to in A29. The Tribunal considered each of the allegations in turn.

Allegation 1 (A1) and Allegation 2 (A2) – alleged sexual assault in bathroom and bedroom

74. It is convenient to deal with these allegations together. A1, disclosed in B's police interview, is that the applicant "put [B] in the bathroom on the counter" and "put his penis inside of [B]’s vagina”. B said that "I didn't know what it was I, I liked it and I liked the feeling". B’s evidence was that it occurred on a school morning, and that she did not think anyone else was in the house. B said that she did not think that she was wearing anything, although could not recall how she came to be undressed, and that she thought that the applicant was also unclothed. B was unable to say how long it went on for, or how close the applicant was to her and what he was doing in more detail.

75. A2 was that a couple of days after A1, B went to the applicant's bedroom and "asked if we could do what we did last time". B and the applicant went into the applicant's bedroom, and with B on top, the applicant put his penis inside her vagina and anus, on the bed. B said that she thinks this occurred in the morning, and that she did not think that anyone was home. B said that she was unclothed when this incident happened (although she could not recall what she was wearing originally), and that she thinks the applicant "was also unclothed 'cause I don't think he wears clothes to bed".

76. During the interview B drew a diagram of the room layout and marked the locations where A1 and A2 occurred (the bathroom counter and the bed). This was produced in the respondent’s further evidence bundle.

77. When asked by the interviewer about the details of the anal penetration, B said:

Q128:   Yeah. And then can you help me to understand how, you said, anally, what, what you meant by that and how that occurred.

A:   Uh, he was, uh, I don't really know how it occurred. But I just know that it did happen, that he put his penis inside of my butt, but I was still on top of him.

Q129:   Yeah. OK. So you, the whole time you were on top.

A:   Yeah.

78. B said that she did not find the anal penetration "as nice or as comfortable". B was unable to say how long it went on for or how it ended, other than that she remembered leaving to go back to her bedroom.

79. B did not know the year that these incidents happened. Upon questioning, she confirmed that she was in primary school and that it was while she lived at the first home. As B was in year 10 in 2022, she would have been in kindergarten in about 2012. The applicant, B’s mother and B lived at the first home until 2017. This means the alleged conduct occurred between 2012 and 2017 (when B was between 5 and 10 years old).

80. B was asked during the interview whether she spoke to her dad about A2 afterwards. B responded:

A:   Uh, not until years later.

Q141:   OK.

A:   But, um, we, um, the first time I ..... um, he said, he asked if he did something wrong and if that was why I was upset and I said, Yes. But we didn't go further than that 'cause I started crying. And then the second time, um, um, uh, I did say that he did do something wrong. But he, um, when we asked discussed about it later, um, he, I was thinking about those two situations where he was thinking about the situations that happened years later where he said he just touched me, but I wasn't sure if he just touched me or did put himself inside of me.

81. The respondent submitted:

Taken on their own, there is nothing about these allegations which is inherently improbable such that the Tribunal should dismiss them as baseless. B's evidence that she enjoyed the feeling of being penetrated is explainable by the fact that she was potentially as young as five, and she "didn't know what it was". The Tribunal should understand that to mean that at the time of the alleged conduct she did not understand what sex was, and therefore did not fully understand the severity of the Applicant's conduct or that it was wrong. Her evidence that no one was home at the time of these incidents is also plausible given the evidence that the Applicant was often the primary carer for B as her mother was focused on developing her career.

82. The Tribunal accepts these submissions from the respondent. Although some of the details were missing, B’s recollections of A1 and A2 are reasonably clear and compelling. Despite the impracticability of the anal penetration in the manner described (which was described as improbability in the applicant’s submission), B was definitive that it did happen as she recounted, even though she didn’t really know how it occurred. B’s distinction between vaginal and anal penetration and how each made her feel is credible. B’s recollection of what she describes as two conversations years later with the applicant about whether he “did do something wrong” support the allegations because she is distinguishing between A1 and A2 and other incidents with the applicant – even though B said that he was only thinking about the later incidents.

Allegation 3 (A3) – the swimming pool allegation

83. A3 is that one weekend, the applicant and B were in a swimming pool at the first home. It must have therefore occurred before 2017 (that is, when B was aged 10 or under). B alleged that “I think he took off my clothes and he took off his clothes, and touched me, um, vaginally. But I don't think he did anything". She later clarified that she thinks he “just rubbed” her vagina. B's evidence was that at the time, she was swimming in the pool and the applicant was holding her with one hand while she was swimming. B's evidence was that the applicant "initiated it".

84. B's account does not explain what steps the applicant took to "initiate" this incident. In the respondent’s submission, that is explainable by the fact that the police officers questioning her did not directly ask her about this. The fact that the applicant "initiated" this incident arose in the following exchange:

Q163:   Um, and was anyone else there at that time - - -

A:   Uh - - -

Q164:   - - - either in the backyard or at home?

A:   Not the fir, not the fir, not the time he initiated it.

Q165   OK. Um, so we're just talking about the pool - - -

A:   Yeah

Q166:   - - - incident now

A:   The pool.

Q167:   So - - -

A:   Yeah.

Q168:   Was there more than one or - - -

A:   So I tried to initiate it later in the pool.

85. The police officers interviewing B did not ask follow-up questions on how the applicant "initiated" the incident.

86. The respondent submitted that the lack of clarity as to how B came to be undressed does not mean her account is implausible, it simply reflects the way in which the questioning unfolded. The respondent submitted that the credibility of this allegation is supported by a further incident which B recounted:

She also said that there was a second pool incident, where she "tugged at [the applicant's] shorts" because she wanted to repeat what had happened earlier. In response, the applicant said words to the effect of "no as Mum was, um, still at home". The fact that B gave evidence of an incident where no contact actually occurred suggests that she did not disclose these incidents solely for some ulterior motive.

87. There are a number of issues with the evidence available here that creates a significant degree of uncertainty for the Tribunal about what actually occurred:

1. B’s comment referenced above where she states, “But I don't think he did anything". It is unclear what this means and no clarification about this is provided.

2. It is uncertain from the interview transcript whether B and the applicant were clothed at the time of B’s allegation. This is clearly a relevant factor. B described her bathing suit, and that the applicant was wearing shorts. The interviewer’s questions then skip over these key details or assume the removal of swimmers without specificity, which is problematic. Although the respondent refers to the later incident where B “initiated” by tugging on the applicant’s shorts, and the applicant resisted because B’s mother was home, it does not ultimately resolve this issue.

3. B’s account is that she was swimming in the pool and the applicant was holding her with one hand while she was swimming and that he rubbed her vagina with his other hand. Although it is possible that B’s account is accurate, it is also possible that the applicant inadvertently touched B while holding her while swimming. Clarification in relation to this possibility has not been provided.

4. B was asked to clarify the rubbing of her vagina. B is not sure and appears unable to give further detail. No explanation or reason is given why B is unsure:

Q177:   Um, and did he rub it on, um, the inside or the outside, or something else?

A:   Uh, I’m not sure.

Allegation 4 (A4) – the spooning allegation

88. B described this incident in the following terms:

A:   So I think it was also a morning and he, so I was just sleeping and he came into my room, and, um, spoon and, um, big spooned me. And during, like, that time and bef previously I tried to convince myself that what happened was a dream 'cause I was still in denial about it. And at the time I, and so I'd, like, pushed that incident down to continue living with my life and to cont, to be able to continue. And then, um, it got, and then he, um, like, because I was in the little spoon I couldn't really, I didn't want to look down and see what was happening. But - - -

Q235:   Um, so you're saying you, you didn't want to look down and see what was happening. Do you know what was happening?

A:   Uh, I did feel, um, something inside of me. Uh, I thought it was his penis, but I'm not sure if it was just his hands.

89. In response to later questions, B said “I think I was wearing pyjamas” ("probably" a gown) but did not think that she was wearing underwear and that she did not remember if anyone else was home at the time. B drew a diagram showing the layout of the bedroom and the direction she was facing in bed which meant that she could see the applicant open the door and enter the room before he went behind her. The diagram B drew, produced in the respondent’s further bundle of evidence, shows them both facing the same way on the bed with the applicant close behind her - “spooning” her (B describes the applicant as the big spoon while she is the little spoon).

90. B went on to say that the applicant may have said something after he entered the room but wasn’t sure. The applicant put something inside of her vagina for “probably 10 minutes” which made her feel uncomfortable. B stated “I didn't want to believe it was happening” because that would confirm that he probably did the other events that happened in the past. The relevant part of the interview was:

Q273:   OK. All right. Um, OK. Um, when your dad came into the room, um, did he say anything?

A:   Not that, I don't think so. Maybe, possibly, good morning. But other than that, no.

Q274:   Did he say anything when he laid down?

A:   Not that I remember.

Q275:   Um, and - - -

A:   He might have asked me if this was OK I don't know if I responded or, um, knew how to respond, yeah.

Q276:   OK. Um, and how did this make you feel?

A:   Um, at first, uncomfortable. Um, I didn't, like, um, I didn't want to believe it was happening - - -

Q277:   Uh-huh.

A:   - - -'cause that would confirm that he pro, probably did the other events that happened in the past.

Q278:   OK. Um, and you said that you don't know if it was his fingers or his penis that he, what did he do with that, sorry, what, what did he do, again?

A:   Uh, put, um, something inside of me vaginally.

Q:279:   OK. All right. Um, do you remember how long, sorry. I don't remember if I asked that. Do you remember how long that happened for?

A:   Uh, like, the duration of it.

Q280:   Yeah.

A:   Uh, not very long. Like, a few, like, probably 10 minutes.

91. This incident occurred years after the last pool incident, at the paternal grandparent’s house, but while B was still in primary school. The applicant, B, and B’s mother moved to the paternal grandparent’s house in February 2017. This incident therefore allegedly occurred in either 2017 or 2018 when B was 10 or 11.

92. Several important details are not provided such as whether the applicant moved or needed to move B’s pyjamas or what was put into her vagina. That B did not see what was happening or what the applicant was doing is explainable by the applicant “spooning” her. Although B is not sure what the applicant put inside her vagina, B describes that it made her feel uncomfortable and that it continued for probably 10 minutes.

93. The applicant submitted that B’s comment that “I tried to convince myself that what happened was a dream” gives rise to a question of whether B herself doubts whether it happened. However, B appears to be conveying by that comment that that she did not want to believe that it happened and being in a state of denial about it, rather than stating it did not happen. The Tribunal considers B’s comment that she didn't want to believe it was happening because that would confirm that the applicant probably did the other events that happened in the past to be compelling. This is because it intersects with both what she remembers feeling at the time and the reason for it while associating this back to past events (in this context presumably the disclosures she has made earlier in the interview).

Allegation 5 (A5) - the overseas trip allegation

94. This allegation is said to have taken place during an overseas holiday. Only B and the applicant went on this holiday. They were skiing. B did not remember which country they were visiting at the time. B stated in the record of interview: “Uh, I don't remember what country. But mum said it might have been Argentina, I think.” B said that it occurred “before the last incident” (A4) and “I think it might have been” the first home where she was living at the time (and therefore before 2017).

95. B said that the applicant and B were sharing a bed in their hotel room. B said that “later in the night” she thought the applicant “was spooning me” and that “I thought he was just doing it while he was asleep”:

163. There is no evidence of contemporaneous disclosures, apart from B speaking to a counsellor on a help line about the matter and meeting on the same day with a family friend who is a paediatrician to talk about what happened, as detailed in B’s mother’s statement. Records of those conversations and the content of any disclosures made were not provided to the Tribunal.

164. There is no physical evidence of the sexual assaults. B did not require medical treatment or have any injuries that might be consistent with the allegations. There is no objective corroborating evidence supporting B’s allegations. There was a delay of years between the alleged events and the disclosure of them to B’s mother and the police. There are gaps in B’s recollection of some of the allegations or particular aspects of them.

165. As the respondent submitted, the Tribunal should not find that the allegations are baseless for these reasons, having regard to the directions in ss 292C, 293A, 294 of the CP Act, to the extent they are relevant in determining B’s credibility: Health Care Complaints Commission v Singh [2023] NSWCATOD 124 at [232]. Although not strictly applicable to the task the Tribunal must undertake in these proceedings, we have had regard to the principles in these provisions. These provisions acknowledge that a victim of a sexual offence may not experience injuries, may not remember all the details of the incident, or describe it in the same way each time, and may delay in making a complaint. As to objective evidence it is difficult to see what kind of objective evidence there may be when the alleged incidents occurred when B and the applicant were alone.

166. According to B’s mother’s evidence, prior to B’s disclosure, B had been very emotional all the time, and crying a lot, since about the time Covid hit in 2020. This is consistent with the applicant’s evidence, and B’s own evidence. B’s police interview transcripts provide two reasons for her delay in making the complaints, firstly that she was in denial about the incidents, and secondly, she was worried that if she disclosed the incidents that her father would leave her.

167. B was not called as a witness before the Tribunal and was therefore not available for cross examination.

168. The Tribunal has carefully examined the allegations made by B earlier in these reasons. The Tribunal identified a number of issues with the evidence available from B’s police interview transcript that creates a significant degree of uncertainty for the Tribunal about A3. The Tribunal also identified concerns about aspects of B’s evidence regarding A5.

169. Although the police considered the matters serious enough to charge the applicant, the DPP withdrew them prior to charge certification. A letter from the DPP in the respondent’s second further bundle of evidence stated that no further proceedings were directed mainly due to the complainant advising that they did not wish the matter to proceed, and that the case was considered weak.

170. Apart from matters related to the allegations involving B, there are no allegations of criminal conduct or history of child protection concerns involving the applicant. No other allegations have ever been made against the applicant in a work-related context, or anywhere else.

171. The applicant gave evidence before the Tribunal and was cross-examined. The applicant was asked about the allegations. The applicant denied the allegations. When questioned about A3 the applicant gave an explanation of sorts, of perhaps lifting B up when teaching her to swim and accidentally brushing her, but not deliberately. The applicant gave evidence that the pool where A3 is said to have occurred is situated in view of the neighbours which makes the allegation of the applicant and B swimming unclothed in the pool together less likely. The applicant gave evidence about A5, that the cool room temperature and the applicant and B going to bed fully clothed is inconsistent with the allegations. The Tribunal observed the applicant giving evidence. The applicant was cooperative, responsive and did not appear to be evasive. The applicant was calm but showed emotion when given the opportunity to explain the difficult situation he is in because of these proceedings.

172. We have given weight to the character evidence provided in support of the applicant in these proceedings, in particular, the references provided by B’s mother’s brother and cousin. Limited weight is given to the references that do not have knowledge of the allegations. The Tribunal accepts that apart from B’s allegations, the applicant is a person of good character and this should be taken into account in his favour.

173. Counsel for the applicant submitted that it was not put to the applicant in cross-examination that he was being untruthful in his responses and his evidence was therefore unchallenged and should be accepted by the Tribunal: Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257, [38]-[41]. The respondent submitted that where it is clear what the respondent’s case is, there is no need to test the applicant on each of the allegations to formally challenge the evidence if that does not advance the proceedings any further. The Tribunal also notes the observations of the Appeal Panel in Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 on this point at [54]-[56]. In the current proceedings it is the role of the Tribunal to consider all the material before it as required by the Act, rather than to accept the applicant’s evidence without further scrutiny.

174. The applicant could not explain why his daughter would make allegations of this nature. His only explanation was that she may have been influenced by her mother to do so.

175. These are very serious allegations of relatively recent conduct made by a child about her father.

176. The divorce proceedings were commenced on the same day that B disclosed the allegations to her mother. There is evidence that the divorce application was commenced after B made allegations, not before.

177. The disagreement about the financial settlement does not and cannot explain the extensive and serious nature of the allegations B disclosed in her police interview that are said to have taken place when she was around 5 years of age through to around the age of 11, in considerable detail.

178. The Tribunal’s impression from the transcripts of police interview is that B was considered and careful when making disclosures to the police. It would be extremely difficult for a 13-year-old child to disclose such matters to the police about her own father. B’s account did not appear to contain embellishments and when she was unsure about details she said so (as in the case of A5, for example). B’s credibility is supported by her candour in admitting that she willingly participated in the alleged behaviour, in the case of A2. There is no evidence of ulterior motivation or advantage for B in making the allegations.

179. Dr Dornan assessed the applicant and formed the view that he does not pose any appreciable risk relation to sexual offending, and no discernible risk to children more broadly. However, Dr Dornan’s conclusions as to risk were premised on there being no evidence that an offence occurred. Dr Dornan conceded that if he were to assume the allegations were true, that this would result in there being some level of risk.

180. The applicant stated to Dr Dornan that B has withdrawn the allegations. Perhaps the applicant said this because the DPP did not proceed with the prosecution mainly due to the complainant advising that they did not wish the matter to proceed. However, this is factually incorrect as the complainant not wanting the criminal matter to proceed at that time does not mean that the complainant has withdrawn the allegations. There is nothing in the evidence to show that the complainant has withdrawn or resiled from the allegations in any way.

181. The applicant informed Dr Dornan that B choosing to leave the ADVO in place after she turned 16 years of age was disappointing. The Tribunal cannot ignore the fact that B choosing to leave the ADVO in place is also consistent with the allegations being credible.

182. After carefully considering all of the material and evidence before the Tribunal, we find that Allegations 1, 2 and 4 are not baseless and that there is a real risk or possibility that the applicant engaged in the conduct as disclosed by B.

183. The Tribunal is not satisfied that there is sufficient particularisation or evidence to support Allegations 3 and 5 and as such they have been given little weight.

The considerations in s 30(1) of the Act

186. The Tribunal must consider the matters set out in s 30(1) of the Act in determining whether the applicant poses a risk to the safety of children.

Section 30(1)(a) - The seriousness of the disqualifying offence or matters which caused the refusal

187. The Tribunal has found that it does not consider the following allegations to be baseless, and that there is a real risk or possibility that they occurred:

1. Allegation 1: that on one occasion between 2012 and 2015 the applicant put B on the counter in the main bedroom's ensuite bathroom in the house where they were living at the time and put his penis inside B's vagina.

2. Allegation 2: that a few days after Allegation 1, B approached the applicant and asked if they could do what they did last time. The applicant laid on his back on the bed in the main bedroom in the house where they were living at the time and with B on top of him, put his penis inside B’s vagina and anus.

3. Allegation 4: that on a day between February 2017 and 2019, B was in her bedroom at the paternal grandparents' house and the applicant came into the room and got into bed with her. The applicant put something inside of her vagina but B was unsure what it was. The applicant left the room sometime later.

188. A1, A2 and A4 are very serious, involving sexual assault against a child family member. Although A1 and A2 are alleged to have occurred a few days apart, A4 is alleged to have occurred several years later. That the conduct is alleged to have occurred over a period of time increases its seriousness.

Section 30(1)(b) and (h) - the period of time since the offences, the seriousness of the applicant's criminal history, and the conduct of the person since the offences occurred

189. The conduct is alleged to have occurred between 2012 and 2019, a relatively recent period.

190. There have been no allegations since 2019.

191. The applicant has no criminal history.

192. Since the matters were reported to the police, and an ADVO has been in place, there has been no contact and communication between the applicant and the complainant.

Section 30(c) and (g) - The applicant's age now and at the time the matters occurred

193. The applicant is 48 years of age.

194. The applicant was between about 36 years old and 42 years old years old at the time of the alleged conduct.

Section 30(1)(d), (e) and (f) - The age and vulnerability of the victim, and the age difference and relationship between the applicant and the victim, and whether the applicant knew the victim was a child

195. The complainant, B, was aged between about 5 years old and 11 years old at the time of the alleged conduct.

196. The complainant, B, was vulnerable because she was a child and dependent on the applicant for care as her father.

197. The applicant gave evidence that prior to the allegations being made, he had a very close relationship with the complainant and that he was often the primary carer for her. This aggravates the alleged conduct as the applicant knew the complainant’s age and vulnerability at all material times as her father and primary carer.

Section 30(1)(i) - The likelihood of repetition of the relevant conduct by the applicant and the impact on children of any repetition

198. Dr Dornan concluded that in his assessment, the absence of clinical risk factors for the applicant indicates the absence of any appreciable risk of the applicant in relation to sexual offending, and no discernible risk to children more broadly.

199. The respondent submitted that the Tribunal should place little weight on this evidence from Dr Dornan as his conclusions as to risk were premised on there being no evidence that an offence occurred. The Tribunal accepts the respondent’s submission.

200. Dr Dornan agreed that if he were to assume the allegations were true, that this would result in there being some level of risk.

201. If the alleged conduct was repeated the impact on a child victim would be significant, and would include sexual, psychological and emotional harm.

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

202. On 27 January 2022, the Local Court of NSW made an ADVO until B's 18th birthday. The order, made by consent and without admissions, prevents the applicant from approaching the complainant or contacting her other than through a lawyer. The ADVO has not been varied since it came into effect.

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

203. This evidence has already been referred to earlier in these reasons.

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

204. No information was obtained in accordance with s 36A of the Act.

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

205. These matters have already been referred to earlier in these reasons.

Conclusion as to risk to the safety of children

206. The Tribunal is satisfied that Allegations 1, 2 and 4 are not baseless and that there is a real risk or possibility that the applicant engaged in the conduct as disclosed by B. This conduct, in our view, creates a risk to the safety of children.

207. Accordingly, the Tribunal is satisfied that the applicant poses a risk to the safety of children.

Conclusion

208. In all the circumstances and considering the s 30(1) criteria, on the material before it, the Tribunal has found that the applicant poses a real and appreciable risk to the safety of children.

209. Although consideration of the matters in s 30(1A) is not necessary following such a finding, for completeness we also confirm that we would not make an order which has the effect of enabling the applicant to work with children because of the finding we have made at [184], as:

1. We are not satisfied a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work;

2. We are not satisfied that it is in the public interest to make such an order.

210. It follows that the application must be refused.

Order

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

2. Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited.

3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited.

4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings is prohibited.

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: 13 March 2025