P and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITIES
[2018] WASAT 99
•4 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: P and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITIES [2018] WASAT 99
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
HEARD: 22 AND 23 MARCH 2018
DELIVERED : 4 OCTOBER 2018
FILE NO/S: VR 132 of 2017
BETWEEN: P
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITIES
Respondent
Catchwords:
Negative notice issued - Factors considered pursuant to s 12(8) of the Working With Children (Criminal Record Checking) Act 2004 (WA) - Best interests of children - Working with children card issued
Legislation:
Criminal Code 1913, (WA), s 329(4)
State Administrative Tribunal Act 2004 (WA), s 27(2)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7(2), s 12, s 12(5), s 12(8), Sch 2
Result:
Decision to issue negative notice to applicant set aside
Applicant to be issued an assessment notice under s 12(1)(a) of the Act
Representation:
Counsel:
| Applicant | : | Mr TF Percy QC |
| Respondent | : | Mr PJ Urquhart |
Solicitors:
| Applicant | : | Timpano Legal |
| Respondent | : | In Person |
Case(s) referred to in decision(s):
A and Chief Executive Officer Department for Child Protection and Family Support [2016] WASAT 74
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) 38 WAR 125; [2008] WASCA 171
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3
Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153
M v M (1988) 166 CLR 69
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 6 April 2006, P (the father) was charged with one count of indecent dealing with a child who was to his knowledge a lineal relative, in relation to his fouryearold daughter under s 329(4) of the Criminal Code 1913 (WA) (Criminal Code) (Exhibit A, Part A Book 1 page 124).
The Office of the Director of Public Prosecutions (ODPP) discontinued the charge on 11 August 2006 in the District Court.
The ODPP's letter to the Court explaining the reason for the withdrawal of the charge stated:
The State is not proceeding in this matter as it has taken the view that there are no reasonable prospects of obtaining a conviction. The complainant in this case is a child was aged 4 years and 3 months when the alleged incident of indecent dealing occurred and 4 years and 4 months when the complainant was interviewed by officers attached to the Child Protection Squad. In light of the answers given by the complainant in two separate visually recorded interviews the State has determined, perhaps consistent with her very young age, that the complainant was unable to give sufficiently cogent evidence such that it could be relied upon to the required standard. There was no other corroborating evidence capable of supporting the allegation. For these reasons the State has made the decision to discontinue the charge
(Exhibit A pages 127-128)
A decade later, the father applied for a working with children card which was refused. He seeks a review of that decision by this Tribunal.
Issue of the Negative Notice
On 18 July 2016, the father applied for a working with children assessment notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act) (Exhibit A pages 9-10).
On 12 December 2016, the Chief Executive Officer, Department for Child Protection and Family Support, now the Department of Communities (the CEO), invited the father to provide a submission about the issue of a final negative notice as a result of his Class 2 nonconviction charge under the Act (Exhibit A pages 12-14).
The father provided a submission to the CEO on 21 December 2016. The CEO requested additional information from P on 21 March 2017 which he provided on 29 March 2017 (Exhibit A pages 15-16).
On 14 June 2017, the father was issued with a final negative notice (Exhibit A pages 21-24).
On 11 July 2017, the father applied to the Tribunal for a review of the decision by the CEO to issue a negative notice.
Legislation and authorities / The review
The legislation and authorities were reviewed by this this Tribunal in G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3 (G). For the convenience of the reader, the relevant extract for G is set out below (see also A and Chief Executive Officer Department for Child Protection and Family Support [2016] WASAT 74 at [14][34]).
The focus of the review is to produce the correct and preferable decision by the remaking of the decision under review: s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham 2 at [25], [34] and [69]).
The application is to be considered at the date of the Tribunal's decision (Hardingham 2 at [25] and [39]).
The relevant legislation
Section 4 of the Act defines a 'child' as a person who is under 18 years of age.
Section 4 of the Act provides that 'a nonconviction charge' means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction.
Section 12 of the Act provides:
(1)The CEO is to decide an application under section 9 or 10 in accordance with this section
(a)by issuing an assessment notice to the applicant; or
(b)by issuing a negative notice to the applicant.
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If one or more conditions specified in the Table apply in relation to an applicant, the CEO is to decide the application in accordance with
(a)if any one condition applies, the applicable provision opposite that condition; or
(b)if more than one condition applies, the applicable provision opposite the condition that has the higher or highest item number in the Table.
Table
| Item | Condition | Applicable provision |
| 1. | The CEO is not aware of (a) any offence of which the applicant has been convicted; or (b) any charge of an offence against the applicant. | s. 12(4) |
| 2. | The CEO is aware that the applicant has a nonconviction charge in respect of a Class 3 offence. | s. 12(4) |
| 3. | The CEO is aware, not as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence. | s. 12(4) |
| 4. | The CEO is aware, as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence. | s. 12(5) |
| 5. | The CEO is aware of a Class 3 offence of which the applicant has been convicted. | s. 12(5) |
| 6. | The CEO is aware that the applicant has a nonconviction charge in respect of a Class 1 offence or a Class 2 offence. | s. 12(5) |
| 7. | The CEO (a) is aware of a Class 3 offence of which the applicant has been convicted; and (b) reasonably believes that in the course of committing the offence the applicant performed an indecent act. | s. 12(6) |
| 8. | The CEO is aware of a pending charge against the applicant in respect of a Class 1 offence or a Class 2 offence. | s. 12(6) |
| 9. | The CEO is aware of a Class 2 offence of which the applicant has been convicted. | s. 12(6) |
| 10. | The CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted. | s. 12(6) |
| 11. | The CEO is aware of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted. | s. 12(7) |
(4)If this subsection applies, the CEO is to issue an assessment notice to the applicant.
(5)If this subsection applies, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If this subsection applies, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7)If this subsection applies, the CEO is to issue a negative notice to the applicant.
(8)If subsection (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child‑related work;
(e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of
(i)any offence committed by the applicant; or
(ii)any charge against the applicant;
(f)any information given by the applicant in, or in relation to, the application;
(g)anything else that the CEO reasonably considers relevant to the decision.
The class of an offence is defined in s 7(2) of the Act by reference to Sch 2 of the Act. The Schedule includes s 329(4) of the Criminal Code. The charge against P was a Class 2 offence (s 329(4)).
In determining the application, the critical issue is whether 'particular circumstances' exist such that a negative notice should be issued to P.
The relevant authorities
In Chief Executive Officer, Department for Child Protection vGrindrod [No 2] [2008] WASCA 28 (Grindrod) Buss JA, Wheeler JA agreeing at [59][81], detailed the proper construction of the relevant provisions of the Working With Children (Criminal Record Checking) Act 2004 as passed (WWC Act as passed) and the CEO's function.
Grindrod was determined before a number of amendments were made to the Act.
Section 12(4) of the WWC Act as passed provided:
If the CEO
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a non conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
Section 12(5) of the WWC Act as passed provided:
If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
Buss JA's references to the then s 12(4) of the WWC Act as passed apply equally to s 12(5) of the Act.
Buss JA stated:
61In the present case, the respondent had two 'non-conviction charges' in respect of a Class 2 offence. Section 12(4) applies if the CEO is not aware of any offence of which the applicant has been convicted and is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence [Now s 12(3), Item 6, s 12(5)]. Section 12(8) provides, relevantly, that if s 12(4) [s 12(5)] applies 'in respect of an offence', the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case having regard to the criteria in pars (a) (f) of s 12(8). Plainly, the reference in s 12(8) to s 12(4) [s 12(5)] applying 'in respect of an offence' is, relevantly, to a Class 1 offence or a Class 2 offence in respect of which the applicant has a non-conviction charge.
62By s 12(4) [s 12(5)], read with s 12(8), the CEO was obliged to issue an assessment notice to the respondent 'unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to [him]'. Three aspects of s 12(4) [s 12(5)] should be noted. First, the provision is concerned with the CEO's state of mind; that is, his or her satisfaction. Secondly, the requisite satisfaction must be attained because of the particular circumstances of the case; that is, the particular circumstances of the applicant's application by reference to the criteria in pars (a) (f) of s 12(8). Thirdly, the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
63What is the significance of the words, 'the CEO is satisfied', in s 12(4) [s 12(5)]?
64As Gummow J explained in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, in the context of s 65 of the Migration Act 1958 (Cth), which entitled the respondent in that case to the grant of a visa only if the Minister were 'satisfied' that the respondent answered the description in s 36(2) of that Act:
The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker (651) [130].
65In my opinion, s 12(4) [s 12(5)] imposes on the CEO an obligation, relevantly, to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice. Compare Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 302 - 303 (Dawson, Gaudron, McHugh, Gummow and Kirby JJ); Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 90 - 91 [38] - [43].
66I turn next to examine the meaning of the expression 'because of the particular circumstances of the case', in s 12(4) [12(5)].
67Each of s 12(4) [s 12(5)] and s 12(5) refers to 'the particular circumstances of the case'. Those subsections are to be compared to and contrasted with s 12(6), which refers to 'the exceptional circumstances of the case'.
68The criteria in pars (a) - (f) of s 12(8) to which the CEO must have regard are:
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
69It is apparent from the language of s 12(8) (in particular, the command that the CEO 'is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to' pars (a) - (f), and the breadth of the criterion in par (f), namely, 'anything else that the CEO reasonably considers relevant to the decision'), that the criteria in pars (a) (f) constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction. In other words, the CEO is bound to take into account each of the criteria in pars (a) - (f), and is not entitled to take into account any other factors.
70Although the CEO must give separate consideration to each of the criteria in pars (a) - (f) of s 12(8), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform. Section 3 states, relevantly, that in performing a function under the Act, the CEO (or the Tribunal) is to regard the best interests of children as 'the paramount consideration'. It follows from s 3 that the CEO, in performing the function conferred on him or her by s 12(4) [s 12(5)] and (8), must regard the criterion in par (a) of s 12(8), namely, the best interests of children, as the paramount consideration. If and to the extent that, in any case, a criterion in pars (b) - (f) conflicts with the criterion in par (a), the relevant criterion in pars (b) - (f) must yield.
71The criterion in par (a) of s 12(8) will always be relevant and paramount. The other criteria in pars (b) - (f) must always be taken into account, but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case. In some cases, for example, some of the criteria in pars (b) - (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children.
72I turn now to examine the requirement, in s 12(4) [s 12(5)], that the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
73Section 12(4) [s 12(5)] is to be compared to and contrasted with s 12(5), (6) and (7). For example, s 12(6) provides that if the CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted, or is aware of a Class 2 offence of which the applicant has been convicted, or is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the 'exceptional circumstances' (as distinct from the 'particular circumstances') of the case, an assessment notice should be issued to the applicant.
74In my opinion, if s 12(4) [s 12(5)] applies, the question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction then a negative notice must be issued. Otherwise, the CEO must issue an assessment notice. It is unnecessary and, in my opinion, potentially conducive to error, to gloss that description of the statutory task by asserting that the CEO bears an onus or burden of proof, or that the CEO must show cause why an assessment notice should not be issued. Compare the observations of the Tribunal at [41] and the comments of the Honourable Ms S M McHale, the Minister for Community Development, Women's Interests, Seniors and Youth, in her second reading speech (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947).
75Although s 12(8) specifies the factors which the CEO is entitled and bound to take into account in deciding whether he or she is satisfied, for the purposes of s 12(4) [s 12(5)], that, because of the particular circumstances of the case, a negative notice should be issued to the applicant, neither of those subsections expressly states what finding, if any, the CEO must make in order to reach that satisfaction. What finding then, if any, must the CEO make in order to attain the requisite satisfaction?
76The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who work in childrelated employment and have been convicted of, or charged with, (including charged with and acquitted of) specified criminal offences. The evident legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in childrelated employment who pose or may pose a potential threat. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with nonconviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity.
77In my opinion, the Parliament has adopted a precautionary approach, relevantly, to the issue of a negative notice to an applicant who has not been convicted of a Class 1 offence or a Class 2 offence, but has a non-conviction charge in respect of such an offence. The adoption of this approach is discernible from the following:
(a)the CEO in performing, relevantly, the function under s 12(4) [s 12(5)] and (8), is to regard the best interests of children as 'the paramount consideration';
(b)whether or not a negative notice is to be issued under s 12(4) [s 12(5)] depends upon the CEO's 'satisfaction' (that is, his or her state of mind) in relation to the particular circumstances of the case, rather than upon the existence of an objective 'fact', as ordinarily understood; and
(c)the CEO may decide an application under s 12 by issuing a negative notice to the applicant after, relevantly, inviting the applicant to make a submission to the CEO about information concerning the applicant's criminal record of which the CEO is aware and about the applicant's suitability to be issued with an assessment notice (s 13(1)(a)), without any provision for or contemplation of a hearing for the purpose of determining facts or any other question.
78The existence of a precautionary approach generally in relation to protecting children from the risk of sexual or physical harm is also apparent from the Minister's second reading speech:
The Working with Children (Criminal Record Checking) Bill 2004 will mean that persons employed, or who volunteer to work with children, or who are in business, must have extensive checks of any criminal records. If they have certain convictions or charges assessed as putting children at risk of sexual or physical harm they will be barred from starting or continuing to work with children.
The working with children Bill is part of a suite of complementary legislation by this Government to protect children: the Children and Community Services Bill, which is twenty-first century legislation to promote the wellbeing, including the protection, of children; the Acts Amendment (Family and Domestic Violence) Bill 2004, which will afford greater protection to victims of family and domestic violence, with a particular focus on the needs and protection of children; the Community Protection (Offender Reporting) Bill, which is currently before the House and will enable the whereabouts and circumstances of child sex offenders to be monitored and conditions to be placed on aspects of their lives that bring them in contact with children; and this Bill, which will deter and prevent people who have particular types of criminal history from seeking work or volunteering in situations in which harm can be done to our children.
In developing this legislation we have assessed the strongest elements of schemes in Queensland and New South Wales. We have also consulted with the Criminal Records Bureau in the United Kingdom. The chief and deputy chief executives of the CRB shared with me their expertise particularly in the light of the Bichard inquiry into the sexual assault and murder of two schoolgirls by Ian Huntley, a caretaker in their school. This Bill is more far reaching than the legislation in Queensland or New South Wales.
The intention of the Bill is to introduce a high standard of criminal record screening into areas of child-related work. The legislation aims to protect children from harm by: deterring people from applying to work with children if they have criminal records that indicate they may harm children, preventing people with such criminal records who do apply from gaining positions of trust in certain paid and unpaid employment, establishing consistent standards for criminal record screening for working with children and the ethical use of such information; and contributing to awareness that keeping children safe is a whole-of-community responsibility. [emphasis added]
(Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6946.) Also see the Minister's comments in relation to cl 7(4) of the Bill which, upon enactment, became s 12(4) [s 12(5)] of the WWC Act:
The Bill provides that certain charges are to be checked. Not all offences against children result in convictions. Therefore, the Government has resolved that charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children.
Charges related to class 1 and 2 offences will be assessed. These include those charges that did not result in a court conviction - known as non-conviction charges - and pending charges yet to be decided by a court. This will enable consideration to be given to sexual and violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim - particularly children - and the reliability of the evidence. It includes also cases that are awaiting a decision, during which time the risk is too high to allow persons to work with children. Queensland, New South Wales and the United Kingdom also assess charges for child-related work.
...
81In my opinion, it is implicit in s 12(4) [s 12(5)] and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) [s 12(5)] unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.
...
83'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters. In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336, 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91-758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).
The High Court dismissed an appeal from the majority judgment of the Full Court of the Family Court, which had affirmed Gun J's decision. Also see Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575, 657 [225] (Callinan and Heydon JJ); Murphy & Murphy [2007] Fam CA 795, [243] - [305] (Carmody J).
84It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.
85The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. Compare M v M (76 - 78); Re H and ors (minors) [1996] AC 563, 572 - 573 (Lord Browne-Wilkinson, dissenting) and 576 - 577 (Lord Lloyd of Berwick, dissenting); Murphy [243] - [305] (Carmody J).
86The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and
(d)the likelihood of any such future risk materialising.
87The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.
(Tribunal emphasis in bold)
The criteria in paragraphs (b) - (f) are never excluded by the criterion in paragraph (a); they are merely subordinated: Chief Executive Officer, Department for Child Protection v Scott[No 2] (2008) 38 WAR 125; [2008] WASCA 171 at [106] (Scott).
The purpose of the Act is as stated by Buss JA at [109] in Scott:
The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who are involved in child-related work and have been convicted of, or charged with (including charged with and acquitted of), specified criminal offences. The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.
In Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 (T) at [64], Murphy JA explained that:
The 'particular facts' to which reference is made in Grindrod [No 2] [87] would include both primary facts, and inferences of fact drawn from the primary facts. The term 'reasonable suspicions' is used in contradistinction to 'facts' and connotes a reasonable apprehension of matters for which there is nevertheless insufficient warrant to make a positive finding of fact.
In T, Pullin JA (Newnes JA agreeing) at [36] stated:
In Hardingham, Heenan J correctly directed himself about points decided in Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 and Grindrod [No 2], namely that:
(a)the critical question for the decision-maker under s 12(5) was whether, on all the information and material properly before the decision-maker, he or she was satisfied there was an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related work [144];
(b)that the risk in question had to be 'unacceptable' and not 'likely', but that the existence of an unacceptable risk had to be based on facts or reasonable suspicions and not, in the words of Heenan J, on 'imagination or surmise' [152], [157].
The reasons why a person is acquitted may be relevant to the assessment of the probative value of facts or suspicions which the CEO has to consider: T at [49].
In Hardingham 2 at [59], the Court of Appeal stated:
This conclusion is consistent with the decision of Heenan J in remitting the matter to the tribunal (Hardingham v Chief Executive Officer, Department for Child Protection). At [123] - [127] his Honour expressly upheld the correctness of the tribunal taking into account 'disreputable conduct not amounting to a conviction for a class 1 or class 2 offence or the subject of any such non-conviction charge' including conduct which does not disclose the commission of an offence:
If it constitutes some kind of deplorable conduct which either alone or in combination with other proved or alleged conduct may give rise to reasonable grounds for suspicion that the applicant may constitute an unacceptable risk of harm to children, then it must be taken into account [127].
Examples of conduct that, whilst not necessarily criminal, are nevertheless relevant, are to be found in the judgment of Hall J in Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153 (Hardingham 3) at [159].
Consideration of whether to cancel a negative notice does not require a finding that the applicant would commit or re-commit a sexual or other offence in the future; the focus is on the exposure of children to risk of harm whether intended or not. Hall J in Hardingham 3 said at [161]:
I note that the question is whether children would be exposed to an unacceptable risk of sexual or physical harm, not whether the applicant would commit a sexual offence. In these circumstances, it is relevant to take into account that harm may occur inadvertently because a person misunderstands or fails to appreciate social norms and interpersonal boundaries. Harm may occur to children in such circumstances even though the perpetrator did not intend to commit an offence. …
The prediction of future risk is not limited to the conduct that was the subject of the charges: Hardingham 3 at [39].
The CEO submitted that:
Particularly relevant to this assessment is Justice Buss' reference to M v M (1988)166CLR69, where the satisfaction of an 'unacceptable risk, in terms of child sex abuse, can be met where the decision-maker is unable to exclude the possibility that the person has abused the child: Grindrod [83].
This submission is inconsistent with what Buss P stated at [81]. Further, it does not correctly state what Buss P said at [83]. Buss P cited what the High Court said in M v M (1988)166CLR69 where the High Court stated:
In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).
The High Court was not saying that the test for an unacceptable risk is that a court or tribunal is unable to exclude the possibility that a person had so abused the child. Rather in that particular case, Gun J's finding that he could not exclude the possibility that the father had abused the child amounted to a finding of an unacceptable risk.
The Tribunal agrees with P's submission that the Tribunal's role in these proceedings is to determine whether P is at risk of causing harm to children in the future having regard to the matters in s 12(8). The Tribunal's role focuses on the 'prevention of future harm' (Grindrod at [75]).
The Tribunal's approach to the evidence
Although it is not the role of the Tribunal to determine whether or not the alleged act occurred, inevitably some likelihood of whether or not the alleged act occurred does factor into an assessment of risk. As Buss P stated in Grindrod at [86], the factors which bear upon that risk include the apparent strength or weakness of the case against the applicant in relation to the nonconviction charge in question.
Typically, the complainant does not give evidence. Typically, and necessarily, the applicant does give evidence. In this case the matter was discontinued before trial so there is no transcript from the trial.
So far as possible in assessing the strength or weakness of the case, the Tribunal will look to contemporary evidence.
This particular case concerns a girl who was four years old at the time of the alleged sexual assault. Her response to questions during the interviews were unfounded and inconsistent. If the responses were from an adult the Tribunal would be in a position to make findings without expert evidence. In the case of young children expert evidence is essential to assess those responses.
If there is evidence from a psychologist or psychiatrist who interviewed the child, or members of the child's family, that will carry significant weight. If the psychologist or psychiatrist has expertise in sexual assaults on children that will be of more significance than the evidence of persons lacking that expertise.
The father's personal background
The father was born on 20 July 1972 and is 46 years of age.
The father met the mother on 25 August 1996. Their son was born on 27 February 1997. The daughter was born on 15 November 2001.
The mother correctly suspected that the father was seeing someone else towards the end of their relationship (ts 22, 23 March 2018). The father ended his relationship with the mother in January 2003.
The mother and the father divorced in March 2004 (Exhibit A page 102).
In October 2004, the father married the stepmother and they now have two daughters, H, born on 29 June 2005 and E, born on 18 July 2007 (Exhibit B page 18).
The father had had access to the son and the daughter since his and the mother's separation in 2003. Eventually, the visits settled into regular fortnightly weekend visits. There were no legal proceedings about access to the children prior to the alleged assault (Exhibit A page 102; Exhibit C para 17).
The father's denials
Throughout the hearing the father consistently denied that he had acted inappropriately with his daughter and denied the alleged incidents (ts 35, 21 March 2018).
Although counsel for the CEO did identify some inconsistencies in the father's statements on previous occasions and his witness statement, none of those inconsistencies were such as to cast doubt on his credibility. The father appeared to be a credible witness who was attempting to answer questions honestly. Similarly, the stepmother appeared to be a credible witness who was attempting to answer questions honestly.
The father's Class 2 nonconviction charge
The Statement of Material Facts alleges that the indecent dealing occurred on an unknown date in February 2006 (Exhibit A page 125).
The mother did not give oral evidence but a witness statement, prepared by the police, was part of Exhibit A pages 102-111. Importantly, the mother was not crossexamined.
On Friday 10 February 2006, the daughter stayed overnight with the father and the stepmother. As is explained later, that is the date on which the mother believed the initial alleged assault occurred.
The father picked the daughter up from the mother's house around 3 pm to 4 pm on 10 February 2006.
On 10 February 2006, the father attended a physiotherapist. He produced a receipt for an attendance on that date (Exhibit A page 20). The receipt does not identify the time of the attendance. The father's evidence is that he attended after work.
The stepmother was working at a sports centre that evening. The father and the stepmother agreed that they would take the daughter and H, the father and stepmother's daughter, to the sport centre's crèche to enable the father to attend the physiotherapist. The crèche records confirm that the two children attended the crèche from 6.50 pm (Exhibit A page 17). The father's evidence is that the stepmother normally returned from work at about 9 pm (Exhibit C para 54; see also Exhibit D para 36). The inference is that the daughter was not alone with the father on 10 February 2006.
The mother collected the daughter on Monday, 13 February 2006 at around 11.30 am. Some comments passed between the mother, the father and the stepmother and an altercation followed. This incident is documented in the father's and the stepmother's diary (ts 28, 21 March 2018; Exhibit C paras 35-38 KBP 2; Exhibit D paras 21-24 KAP 2). Obviously, the relationship between the father and the stepmother and the mother was not good.
On 26 February 2006, the mother sent the father a message stating the father could no longer see the son and the daughter (Exhibit C para 40 KBP 3; Exhibit D para 25 KAP 3). Since the mother was not aware of the alleged assault until two days later that cannot have been the motivation for the mother not allowing the father to see the children.
The mother's statement identifies the date when she first had a concern about the daughter as 28 February 2006, over two weeks after 10 February 2006.
The mother's evidence is that she saw the daughter holding her hands over her vaginal area. At first the mother thought the daughter wanted to go to the toilet. When asked by her mother whether she wanted to, the daughter replied 'I can't, I can't wee. I need some cold water. Pour some cold water on me' (Exhibit A pages 103-104).
The mother again asked 'Has someone been touching your privates?' The daughter did not respond but started screaming hysterically. The mother calmed the daughter down after about 10 minutes (Exhibit A page 104).
The mother then asked 'Has anyone been touching your privates? You can tell me they won't get in trouble'. Shortly thereafter the daughter responded 'Daddy has'. The mother's evidence is that the daughter's response indicated that the father had touched her on the vagina with his finger.
The daughter also referred to a 'turtle' but the mother did not pursue it (Exhibit A page 106).
Later evidence from the police interviews with the daughter established that the daughter used the term 'turtle' to refer to a penis.
The mother concluded that the touching must have occurred on 10 February 2006 because the son had not been at the father's house because he was staying with his friend (Exhibit A pages 106-107).
On 28 February 2006, the mother took the daughter to the Peel Health Emergency Department and subsequently to the Child Protection Unit at Princess Margaret Hospital (PMH) (Exhibit A page 113A).
Dr Joann Gren who saw the daughter initially (on 28 February 2006) at the Peel Health Emergency Department, completed a physical examination of the daughter and observed that 'there was no obvious sign of trauma'. The daughter was treated with antibiotics (Exhibit A page 113A).
On 1 March 2006, the daughter was medically examined by Dr Petra Hartmann at PMH. The medical report noted that she was reported to have dysuria on a monthly basis for the previous six to eight months. The examination showed some irritation of her introitus (entrance to her vagina). The findings were non-specific. The report stated '[t]hese findings could be associated with genital fondling, however are much more likely to be the result of other causes such as poor hygiene. The normal examination does not exclude the possibility that trauma or touching of the more external genital structures has occurred' (Exhibit A page 116).
After visiting PMH on 1 March 2006, the mother attended the Police Child Protection Squad (Exhibit A page 108).
On 2 March 2006, the mother contacted Crisis Care (Exhibit B page 16).
On 5 March 2006, the mother again questioned the daughter. The daughter described how she was standing spreadeagled with the father behind her. The daughter said the 'turtle' was up. The daughter said it hurt. The mother asked 'Did he only touch you one time?' and the daughter answered 'Yes' (Exhibit A pages 109,110 and 112).
On 7 March 2006, the father called the mother about collecting the daughter and the son the following fortnight. The mother informed the father that the daughter had been 'interfered with' and that she had a vaginal infection as a result. The mother inferred to the father he had assaulted the daughter. This phone conversation is documented in the father's and the stepmother's diary (Exhibit C paras 41-42, KBP 3).
The father and the stepmother were concerned that someone else had assaulted the daughter, so they made some enquiries with their doctor about the vaginal infection. The father also contacted the then Department of Community Development in an attempt to get more information.
On 9 March 2006, the daughter was interviewed by two police officers (Exhibit A pages 30-58).
In the course of the interview, the daughter was unfocused and, at times, singing nursery rhymes, moving off the chair and colouring in. She referred to her 'wees', a 'turtle' and her father. The following extract is set out to illustrate the evidence of the daughter:
A.Ah, someone- touched me in my wee's, cos- it really hurts. Mit - - three little kitties they've lost they mittens and they - -
Q.Okay.
A.- - began to cry.
Q.… You told me that someone touched you in your wees and it really hurt. Who's that person that touched you in your wees?
A.It would got - - it's got black hair and it's got a turtle.
Q.Who's the person that we're talking about?
A.Ah, Daddy. It was Daddy touching my wees, but it really hurt, so I put the mess in my - - in my body so it fixed it. Then I put some cold on it.
Q.Okay. So it was Daddy, was' it? What's Daddy's name? Does he have another name?
A.[Father's name]
Q.[Father's name]. Does your mum and dad
A.Look on my finger. I
Q.Where does your dad live?
A.Um, at home.
Q.Does he live with you?
A.Yeah.
Q.He does live with you?
A.I have a sore finger on me.
Q.[Son's name], does your dad live in your house with you?
A.Mm, I have a sore finger here.
Q.Okay. [Son's name], is your finger okay? All right. You said that your daddy touches you in your wees. What's your wees?
A.(points, to vagina)
Q.Okay. What do you use that for?
A.Because I want Mama.
Q.Pardon?
A.I want Mummy.
…
Q.And that person had black hair and they've got a turtle, and you said it's your daddy and his name is [Father's name]. And you told me that you had a mess in your body but you fixed it up. And - - so I just need to ask you a few questions about that, okay? Now, you told me that he touched you in your wees.
A.Fire.
Q.[Daughter's name]
A.But I'm on fire. What?
Q.Can you tell me, um, is there a - - you know where you said - - you showed me where wees, when I asked you what wees are?
A.Yeah.
Q.Do you have another name for that part of your body?
A.Aaahhh, no.
Q.You don't have another name? What do you call it?
A.I don't know.
Q.What do you use that part of your body for?
A.… (no audible response) …
Q.[Daughter's name]
Q.Remember, you still - -
Q.What - -
Q.- - got to listen while you're drawing.
Q.What do you use that part of your body for?
…
Q.Move on from there? Okay. You told me that your daddy touched you where you have wees. Where were you when your daddy touched you?
A.Aah, nowhere.
Q.… where were you when your daddy touched you where you had wees?
A.… (no audible response) …
Q.… were you at a house or were you somewhere else?
A.I was somewhere else.
Q.Where were you?'
A.... (no audible response) …
Q.… if you were somewhere else tell me where you were.
A.Ah, I was at home.
Q.At home?
A.Yeah, then I was standing like this, then somebody was touching me.
Q.Okay. You were at home. Where's home?
A.Ah - -
Q.Whose home was it? Who lives in that house?
A.Daddy.
…
Q.Okay: You told me that you were standing and you showed me that you had your arms out. What clothes were you wearing?
…
Q.What were - - what were you wearing?
A.Aaahh, I don't know.
Q.Can you remember what .you were wearing?
A.I don't know.
Q.Did you have clothes on or were your clothes off?
A.Yep, my clothes were on.
The daughter returned to be interviewed by Police on 17 March 2006 for about 45 minutes (Exhibit A pages 59-84).
In her second interview, the daughter maintained that the father had touched her 'wees' and that it was a 'short time' ago (Exhibit A pages 70-71). She also maintained that her pants were off and that the father was not wearing pants (Exhibit A page 74).
The daughter said that the father had touched her 'wees in the hole' and that she had told him that was not right and that it 'feeled bad', and that he had touched her 'wees' with a 'turtle' and that it hurt (Exhibit A pages 75-76).
The daughter said that she used her 'hole' for 'wees' and that the medicine had fixed her wees (Exhibit A page 79). The daughter then did not want to talk anymore. Police persisted in questioning the daughter about whether the father had touched her on other occasions. The daughter responded 'I don't know'. The daughter said she had told the truth (Exhibit A page 80).
It is entirely understandable that a four-year-old would have trouble focusing.
The father was interviewed by Police on 23 March 2006 and 4 April 2006. In relation to both interviews, on legal advice, the father declined to comment on questions dealing with the daughter's allegation of sexual abuse (Exhibit A pages 86-101).
On 6 April 2006, a Prosecution Notice was lodged with the Magistrates Court. It alleged that the father indecently dealt with the daughter a child who was to his knowledge a lineal relative (s 329(4) Criminal Code; Exhibit A page 124). The allegations of material facts appear at Exhibit A page 126.
The Office of the Director of Public Prosecutions (ODPP) discontinued the charge on 11 August 2006 in the District Court.
The ODPP's letter to the Court explaining the reason for the withdrawal of the charge stated:
The State is not proceeding in this matter as it has taken the view that there are no reasonable prospects of obtaining a conviction. The complainant in this case is a child was aged 4 years and 3 months when the alleged incident of indecent dealing occurred and 4 years and 4 months when the complainant was interviewed by officers attached to the Child Protection Squad. In light of the answers given by the complainant in two separate visually recorded interviews the State has determined, perhaps consistent with her very young age, that the complainant was unable to give sufficiently cogent evidence such that it could be relied upon to the required standard. There was no other corroborating evidence capable of supporting the allegation. For these reasons the State has made the decision to discontinue the charge.
(Exhibit A pages 127-128)
Counselling
On 13 March 2006, the mother sought counselling. The intake record of the counselling service noted that the mother mentioned the allegation the daughter had made and that the mother was not sure what to believe or think (Exhibit A page 133). The mother, the daughter and the son saw Ms Jemima Livingston, a counsellor at Allambee Counselling.
The mother was seen on 15 March 2006 (Exhibit A pages 133137 and 139).
From 11 May 2006 to at least 20 December 2006, the daughter attended counselling with Ms Livingston (Exhibit A pages 141-59).
Ms Livingston's statement was admitted as Exhibit L. Ms Livingston's statement to Police appeared in Exhibit A pages 191-240. Ms Livingston was crossexamined.
Ms Livingston qualified as a social worker in 2003. At the time Ms Livingston counselled the daughter she had counselled 40 to 50 children over three years. In her career she has counselled about 100 children because after counselling she went into management. She does not have any formal qualifications in psychology (ts 6-8, 23 March 2018).
Ms Livingston was not investigating whether sexual abuse had occurred. Her description of her role was:
That is, though, starting from a proposition that the child has probably been abused? Well, most of the times, the families that come into our service, they're referred in through either – well, they were, at the time, referred into either Child Protection, another service or PMH, Princess Margaret Hospital. So, for us, it was normally the case that something that had been proven or an allegation had been made that was quite substantial that a child – something had happened and that our role was in regard to therapy. I think our role has never been to prove right and wrong, it's about sort of how do we heal what's going on for this child, or how do we heal the family (indistinct) what's happening right now.
Now, look, I'm not being critical, but I'm and I - - - ? - - Yes.
- - - would think it was unusual if you didn't start from the proposition that, given who was referring them to you, that the child had probably been abused? Definitely if it's coming from those services. That's what I was sort of saying. Like if it's a referral from those services, you always pretty much come from the proposition that something untoward has happened, all those services wouldn't have got involved or referred them on to us. When it's a self-referral – and, like I said before, sometimes exactly if it's Family Court, you don't go in with that expectation unfortunately that something has happened; it's about talk to the child, see if the child has got anything that they're sort of needing support with.
Well, this one came through the sort of channels where you might expect that there was some validity in the allegation, didn't it? Very much so. Yes.
Yes. Now, you made the observation in your original statement that the language she used to describe the acts in question was extremely childorientated language? Yes.
(ts 19, 23 March 2018)
Ms Livingston's role was essentially therapeutic.
Ms Livingston counselled the daughter once a week for the first three to four months and more sporadically thereafter. The counselling ceased after about 12 months (Exhibit L page 2).
Ms Livingston's notes appear at Exhibit A pages 243-247. Those notes record instances of the daughter recounting numerous instances of sexual assault by the father. Again there was a reference to a 'turtle', that is, a penis. The daughter became very distressed relaying some of the incidents (For example see Exhibit A page 246). The daughter described an ejaculation in terms of 'egg stuff that comes out of daddy's turtle' (Exhibit A page 246). Ms Livingston's statement was consistent with her notes.
On 24 November 2006, the daughter referred to a 'tickler' that goes 'vroom, vroom' presumably some kind of vibrator.
The mother owned a vibrator (ts 13, 23 March 2016).
The father denied that there was a vibrator at his home (ts 24, 21 March 2018).
The last recorded date of Ms Livingston's counselling of the daughter is 5 December 2006 (Exhibit A page 244). Her oral evidence is that the interviews continued into 2007 (ts 3, 23 March 2018).
In Ms Livingston's statement to Police she stated:
67.When I began working with [the daughter] she was quite shy but did not take very long to open up after I spoke to her about not having to be scared and that she was brave.
68.The language she uses to describe these acts is extremely child orientated language and her expressions on her face when she describes to me either the pain or the act are so animated and real.
69.The whole time 1 have been working with [the daughter] her story has never changed or varied from session to session.
70.The only thing I find is her opening up more and more as she begins to feel safer.
(Exhibit A page 197)
In Ms Livingston's statement she said:
…
20.I would describe it as the most hard hitting case I have had involvement in to date.
21.[The daughter] was so young as a victim and so articulate in the way she described sexual acts. I have never counselled a child so young who was so up front with their language.
22.[The daughter] was very matter of fact in the way in which she described what her father did and the way it affected her body.
…
26.[The daughter's] explanations to me were age appropriate and compelling.
27.As a result of the way that [the daughter] communicated with me, I concluded that a 4 year old, would simply not have known some of the disclosures she made to me, unless some form of abuse had occurred[.]
(Exhibit L pages 3-4)
Mr Stephen Cohen's report
The father and the mother were engaged in proceedings in the Family Court of Western Australia.
The father made an application for access to the children in late 2006.
The mother filed a Form 4 'Notice of Child Abuse and Risk of Child Abuse' on 12 January 2007.
The Form 4 alleged two acts of sexual penetration of and eight acts of indecent dealing by the father in relation to the daughter (Exhibit A pages 248-254).
Mr Stephen Cohen was appointed by the Family Court as the independent clinical psychologist for the children (Exhibit A page 279). His qualifications appear on his letterhead (Exhibit A page 285). The fact that he is appointed by the Court to give expert evidence to, relevantly, 'whether the children are in danger or at risk of any kind from either parent' (Exhibit A page 297) and that he was giving that expert opinion reasonably contemporaneously, means that great weight should be given to his expert opinion.
On 6 November 2007, Mr Cohen filed an 'Affidavit of Single Expert Witness' (Exhibit A page 283).
Mr Cohen's affidavit attached his expert report dated 6 November 2007 (Exhibit A pages 285-298).
Mr Cohen's report sets out the dates and times of the interviews with family members over the period from 9 February 2007 to 21 September 2007.
Mr Cohen interviewed the mother, the daughter and the son on 26 February 2007 for 40 minutes, the daughter and son on 1 September 2007 for nine minutes and the father, the daughter and the son for 105 minutes on 1 September 2007.
The interview with the father, the daughter and the son was the first time the father had seen the daughter and the son since the allegations were made (Exhibit C para 62).
Mr Cohen had a large number of documents filed in the Family Court and subpoenaed documents (Exhibit A page 286). Apart from the witness statements filed in these proceedings, all the material available to this Tribunal and in addition family law documents not available to this Tribunal were seen by Mr Cohen.
Given the centrality of Mr Cohen's report to the Tribunal's consideration of this application, the report is set out in its entirety below:
I write this report having been appointed Single Expert Witness to enquire into and report on:
a)a full psychological assessment in relation to the mother including but not limited to her personality;
[The mother] at times found herself caught between the belief of her daughter and the disbelief about [the father] having undertaken the alleged behaviours. At times she showed no emotion about matters and was somewhat vague about descriptions. There were no tears or sign of being upset and often would just sigh about matters.
She has no psychiatric or psychological history.
[The mother] completed the Millon Clinical Multiaxial Inventory-III that did not show any psychiatric or psychological illness.
There is no indication that [the mother] is suffering any significant psychological or psychiatric illness that impinges upon the current matter.
b)a full psychological assessment in relation to the father including but not limited to [his] personality;
[The father] has no psychological or psychiatric history. He is prepared to take a great deal of blame for the separation from [the mother] recognising that a lot of it was his fault. He has faced a great barrage of allegations and at times has thought about walking away. He feels very vulnerable to ongoing allegations full time. At times he is very teary about his contact with his children.
[The father] completed the Millon Clinical Multiaxial Inventory-III that did not show any psychiatric or psychological illness.
There is no indication that [the father] is suffering any significant psychological or psychiatric illness that impinges upon the current matter.
c)To the degree that it may be ascertained the psychological state and health of the children;
i) [the son];
[The mother] described [the son's] personality as one of a very active child who is keen on life. After the allegations she sent him to counselling because she was concerned about the child bottling things up and felt that one on one would help him. She explained that [the son] in a round about way knows what has happened but has no details of the allegations against his father.
[The son] was diagnosed with Attention Deficit Disorder (ADD) by a Paediatrician in September 2005. The father was in attendance when this occurred. He does not take any medication although the subject of the use of Ritalin and Dexamphetamine has been discussed.
[The father] believes [the son] is a smart, clever young man. However like his wife he expressed some concern about [the son's] psychological state and health referring to his ADHD and the effects of matters within the family.
When [the son] was seen with his sister there was no appearance of any psychological difficulties. The same could be said when seen with his father and then with his mother.
[The son] was not interviewed individually for the purpose of the current assessment. The assessment took place over art extended period of time and there have been multiple interviews of the children by a variety of allied health professionals including the Police and DCP. It was therefore deemed inappropriate for the children to be subject to further interview.
ii)[the daughter];
[The daughter] was not interviewed individually like [the son] as she endured a number of Police and other interviews including significant counselling. Therefore it was deemed as not appropriate to hold an interview with her at this time.
[The daughter] was seen with [the son] and with each of [the daughter's] parents. There is no indication that she is suffering from any psychological difficulties or problems. She has had counselling from allegations only.
d)the relationship of the father with:
i)the [son and the daughter];
a.[the son];
The mother described the father as having a good relationship with [the son] following separation after a while it started to struggle. She believes [the son] had a problem with [the father's] new partner [the stepmother] initially but then it seemed to settle down. When there were problems with the relationship she rang the father and suggested that he and [the son] do things together but the father was not receptive so she left it alone.
During the recent reunification [the son] was very keen to see his father and since has been his boisterous, active self. [The son] soon made it known to her that he would like to see his father for a full weekend. The mother believes that [the son] has a good relationship with his father.
[The father] believes he has a very good relationship with [the son] who is now ten years old. He described him as smart, clever and extremely loyal to his mother. Following the separation [the son] felt torn and tried to step into the father's role. He feels that [the son] probably heard a lot from his mother about her problems and difficulties following the separation.
He recognises that [the son] was somewhat anti [stepmother] at the start because he felt that she stole his father. He took the time to explain to [the son] that he had actually left the mother and that it was his decision. He recognised that [the son] saw his mother hurting as a result of the separation.
He believes that [the son] at times plays he and the mother off against each other. Originally the father thought it was the mother lying but then realised it was [the son] taking advantage of the situation. Therefore he has to take what [the son] says with a grain of salt and be very wary of to those types of comments.
[The father] spoke of missing [the son] a great deal. He recognised the boy is healthy and shows a good relationship with his mother in the way that he defends her. He realises [the son] needs to please his mother so it is difficult for him to say if he is having a good time at his father's.
In general both parents believe that [the son] has a good relationship with his father although it was placed under some strain following the separation with the father acquiring a new partner. However after that their relationship settled once again. The recent reunification of [the son's] relationship with his father has moved on in a manner that indicates the period of absence had little or no effect on their relationship.
b.[the daughter];
[The mother] believes that [the daughter] is wary of her relationship with her father. She is unsure whether this could be as a result of the abuse or it could be from her making false allegations and comments that have been carried through to allegations of abuse.
She believes that [the daughter] had previously had a reasonably good relationship with her father. At the recent reunification, [the daughter] was very excited after the visit having played with her father telling her that 'sometimes he was a good man'. She still feels as though [the daughter's] relationship with her father is 'iffy'.
[The father] believed he had a good relationship with [the daughter] until the separation. Like [the son], [the daughter] feels that [the stepmother] stole her father although [the daughter] had less problems with [the stepmother]. He feels she gradually warmed to [the stepmother] and their relationship and quickly went back to how it was when the family were together.
Having seen [the daughter] recently he feels as though he has got a good relationship with her and she is still a bit sheepish about the allegations.
In summary it would appear that [the daughter] has a reasonable relationship with her father, probably not as strong as [the son's].
ii)the mother
[The father] began by saying there was a lot in the separation from his wife and things have not been good however he accepted the responsibility for the separation was mainly his fault. He stated the separation didn't have to be as traumatic with her bad mouthing him and [the stepmother]. He and [the stepmother] had never badmouthed the mother to the children.
A lot of the problems began when [the daughter] said something to [the stepmother] and they confronted the mother. There was an argument and then a week later she was accusing him of having molested [the daughter]. He stated the matter had gone to the Criminal Court following charges but they were dropped and from then on she refused to allow him to see the children. At the time of the initial assessment 09/02/07 he had not seen the children for 12 months.
He understood there was no contact as part of his initial bail conditions but once the charges were dropped and there was no Trial the lawyer told him to go to the Family Court as he should be able to see his children again.
He described how they separated some 3½ years ago. When they separated there was nothing in writing with the children and he would have them every second weekend and sometimes a couple of nights during the holidays. Initially they were living quite close but the mother and children moved to Mandurah and then they were limited to fortnightly accesses on the weekend. At that stage they would go to his place after [the son] had played football until Sunday night. Since the charges were dropped when he spoke to her and told her he wanted to see the children she denied the responsibility was hers and kept telling him that it was up to DCP. He was very concerned that there was a lot going on with [the daughter] being in hospital and being in and out of school.
He described [the mother] as very vindictive. He recognised that he left her for [the stepmother] but the marriage had not been perfect for a long time and if [the mother] were honest with herself she would recognise that. As soon as [the son] was born [the mother] began sleeping in a separate bed. He was in denial at the time and tried to talk himself into believing that everything was normal.
After a while he realised the relationship was poor at the home and he questioned whether she had another partner. She did not appear that she has ever got over the situation. He feels that she has great potential but their relationship was never going to work. His parents, although they cheered at separation, supported him throughout the time that they were married.
He described an incident where she faked a pregnancy to see his reaction. She left him for half an hour and he was very happy during that time and then she told him she was only joking. Shortly thereafter she got pregnant. He claimed that she'd had him audited a couple of times whilst on child support and that she is very money orientated.
She has no psychological history that he is aware of and feels that he was never really good enough for her. Their relationship never really got to a stable state-in which either of them was particularly happy. He has told both of the children that him leaving the mother was his own decision and that she is not to blame.
He described the maternal family as very difficult people who have a great deal of history within their own family. He believes there is a history in the maternal family of abuse allegations and this has made [the mother] significantly fully aware of the potential for such things to occur.
He believes that she has put the fear of God into the children about him coming home when they were married and then would say she would sort it so that she would be the good one.
Sometimes he would get home and [the son] would be scared and then she would smooth it over and look like she had done the right thing.
In regard to discipline they often undertook it together. He would take things off [the son] and if things were extreme he would get a smack on the bottom. However he has learnt since then that this was a show of loss of control on his behalf. At the same, time however the mother's discipline was lax and if it wasn't lax she would say 'wait til your father gets home'. She would them move in and deal with the situation so as to look like the God.
At this time he has no relationship with [the mother]. He was somewhat shocked recently to receive a message from her telling him that if he hasn't done what has been alleged to then fight for the children. This he believes is related to a recent newspaper article in which the mother lost her child to the father. He stated the text message arrived on the same day as the newspaper article being a Saturday morning.
In many respects he does not trust [the mother] and believes that the allegations made against him have been wilful.
iii)[the stepmother];
[The father] believes he and [the stepmother] have an extremely good relationship. [The stepmother] provides the same type of view that their relationship is extremely strong.
[The stepmother] indicated that she met [the father] briefly when [the mother] was overseas visiting her parents in Croatia. She believed that [the father] was never really happy in his relationship. They had been friends during that time. [The father] then came to her in tears when he couldn't take the deterioration of the relationship anymore and they were together within a few days. They have been together since.
e)the relationship of the mother with:
i)the children;
a.[the son];
[The father] recognises [the son's] difficulties with [the stepmother] in the early stages were reflected in him taking responsibility for his mother's emotions following the relationship breakdown. He recognises that [the son] now plays the parents off against each other and they need to be very wary. He is quite proud of the way that [the son] is very protective and caring of his mother. He does feel as though sometimes it is slightly inappropriate in that the mother dumps a lot of tier emotions on him. This has resulted in them having an extremely good and understanding relationship however at times [the son] has been elevated into an adult role with his mother. He accepts that this may well be part of him having left the house and the mother being in no further relationship so [the son] has taken up the role of adult male in the home.
[The mother] believes she has a good relationship with [the son]. She believes it is difficult the way things occur, particularly in regard to the allegations, she could not tell him the full rationale and details of events. [The son] has some understanding of matters overall but no details. She believes that she has a good relationship with him and that he has dealt pretty well and patiently with the whole situation.
b.[the daughter];
[The father] believes that [the daughter] is of the belief that he was stolen from the mother by [the stepmother]. He does however recognise in future years as [the daughter] gets a little older these matters will be able to be explained to her in more detail and as she matures she will have a greater understanding of events.
It is quite evident that [the mother] and [the daughter] have had a close relationship at times and have talked a lot about events and the mother has questioned [the daughter] a great deal about the allegations. The daughter and mother have a close relationship.
[The mother] was guarded in regard to [the daughter] and the initial allegations, subsequent Police interview and then she organised counselling through Allambee. She was told that [the daughter] at four would not be old enough to swear under oath and give evidence so the charges were dropped. [The mother] was then left to explain to [the daughter] about the no charges and was surprised that [the daughter] was so understanding of the situation.
That was the initial charges and then there was a subsequent set of allegations made which again the Police decided not to proceed. Once again [the daughter] was accepting of this.
More recently [the mother] has become quite confused by [the daughter] as she has recanted on a number of occasions saying that nothing happened with her father and has gone back on what she said previously.
In summary [the mother] believes she has a good relationship with [the daughter] although at times she seems to be slightly confusing.
ii)the father;
[The mother] described [the father] as very different now to how he was when they were together. She stated these are very two different things because he is now a very crafty character and she never realised that before.
She stated when we met he was a nice person but he was a bit immature for her. Ten months after meeting him she was not keen. She was not with anyone for a year or two before that and even though she realised they were not on the same wavelength the only thing they really had in common was they both wanted children. She was turning 26 and he was 2½ years younger and he really lived like it.
She stated she was looking for a good father. Unfortunately they were not sexually compatible with him having some sexual difficulties and them going to QE2 clinic. After they were married for a year or two sex became a very infrequent event that was usually initiated by herself. He would try for intimacy but it was usually in impossible situations. She then began not to initiate and to see how long it would take him and it would be up to six months before anything occurred.
After [the son] was born she suggested that they separate and she wasn't happy. He thought it was quite normal that they weren't having sex and said he was quite happy like this. She thought it was herself at the time but now recognises that it wasn't particularly normal. She spoke to his mother about it who then spoke to him but he wouldn't listen. When she spoke to [the father] he told her, 'I thought it stopped when you got married'. When they went to the clinic because of the lack of interest the doctor to assist them giving [the father] Viagra but he used it once, it didn't work particularly well and alternative methods were rejected.
While both of them have always been there for the children [the mother] made it clear she didn't want a second baby as she was in her last year of studies. [The father] was not keen for [the son] to be an only child. They tried twice for another child and then didn't do it anymore and she decided they would focus on their marriage. .
She stated [the son] had not been intentional even then because she was on the Pill at the time and was due to have an implant. She was somewhat surprised when she fell pregnant
She states her husband was initially very placid but when she was pregnant with [the son] that he began to get violent. After [the son] was born he picked him up and threw him in the van with toolboxes. She stated there were a number of situations where [the father] had hit [the son] so hard his back had buckled. At that time she was pregnant with [the daughter].
She described him as a very hard disciplinarian who would then turn to her and tell her that she had to stand by what he did. She stated the discipline never got out of hand but she did notice that it increased in frequency when she was having [the daughter].
It was just after [the daughter] was born, she didn't remember the exact details, but they had a number of arguments and disagreements over discipline, it was during this early period that she went to the chemist and when she came back [the son] had a cut over his left eye.
They separated after [the daughter] was born when she felt he was having an affair because he was acting weird. She described him as flying to Melbourne a lot on work. When he returned he was strange, not wanting to go for walks, when the telephone rang he would answer it and then walk off out of range. He was not talking when he was getting home and he was buying stuff to get 'the hair off his bottom'. She stated he left all of a sudden out of the blue after saying no and he closed the joint account and was gone. He never talked to her about what was going on but told others about finding himself. He helped him find alternate accommodation and agreed to go but at that time she believes he also organised for [the stepmother] to fly over. She found his diary with [the stepmother's] telephone number in it so she rang her and asked her what was going on but [the stepmother] didn't want to talk to her.
When the children went to the first visit with the father there were signs of [the stepmother's] presence only a week after he had left the house.
She believes that he is now setting her up to try and look like the psycho ex-wife having cut him off. She stated for a year there has been drama after drama with him baiting her and in the background [the stepmother] going overboard about them being a happy family. She states the difficulty with him is that given all the allegations she doesn't really trust him at all but this is not something that she can explain to the children.
She is concerned about his discipline, which initially he followed from her but then he gradually got stricter and stricter wanting to chase [the son] with a belt.
She stated her relationship with him now is dead although it had been strained from when [the son] was three. When the relationship ended she was relieved although shocked because once she had [the daughter] she thought they would become a serious family even though she didn't really want to be in the relationship. She stated they have no relationship now although recently she did message him telling him to fight for the children if he really didn't undertake what has been alleged.
iii)[the stepmother]
[The mother] stated that initially [the son] had some problems with [the stepmother] basically because he felt that she had taken the father away. She felt that [the stepmother] was jealous of him and this set their relationship off on shaky ground to start off with.
She felt that [the stepmother] was a little insecure when she arrived but after the birth of the baby when she went to collect the children [the stepmother] handed the child to her. She made the comment to [the stepmother] that [the daughter] had hair just like that too, she felt it was quite bizarre there was some degree of connection between the two of them. She recognised that probably in the early stage there was some playing off between her and [the stepmother] by [the father] and then the children being caught in the middle.
She holds no animosity towards [the stepmother] believing now is the time to get over it and get on with establishing the situation with the children where by they can have a good relationship and a safe time with both parents.
Whilst [the father] had been away prior to the allegations she had on occasions taken the children to see [the stepmother] in his absence. There were also times where she had organised for [the daughter] to talk to [the stepmother] on the telephone. She also thought it was good for the child. She felt their relationship continuing being strong was certainly in the children's best interest as she is likely to be doing a good deal of the care of the children.
She recognised that [the daughter] loves [the stepmother] and that [the son], although having problems initially, now has a good relationship with her as well. She feels that [the stepmother] has an important role in the current situation providing appropriate maternal care and guidance for the children when they are with their father.
f)The Interest in and concerns for the children and the motivations, commitments, objectivity and capabilities in respect of the children of each of the adult parties;
i)the mother;
[The mother] is highly interested in and has primary concern for the children. She is highly motivated and committed to the children. Her level of objectivity has varied within reasonable boundaries in regard to the allegations. Whilst at first she was quite shocked she has persevered to ensure that the allegations were assessed to the fullest possibility. She has believed what she has been told initially but has also been able to question the validity of' what she was told and accept, although confusingly, the latest comments both by the Police and then later by her daughter that nothing happened. She is very capable of caring for the children.
ii)the father;
[The father] is highly interested in the children and has persisted throughout a significant amount of allegations. He has shown a high level of motivation and pursued contact showing commitment to both children. He has remained objective in regard to particularly [the daughter] given she is the source of the allegations. He believes that comments were either taken out of context or wilfully procured from [the daughter] by her mother and family because of the anger towards the separation of the relationship.
Despite facing Police charges [the father] has always remained focussed on the relationship with his children and he appears more than capable of remaining committed to them as a parent.
g)the father's capacity to recognise and provide adequately for the physical, emotional and intellectual needs of the children and if necessary any recommendations to assist the father;
[The father] appears more than capable of recognising and providing adequately for the physical, emotional and intellectual needs of the children. Physically there have been no problems in regard to his care of [the daughter]. There was previously some question mark in regard to his discipline, particularly the incident with the can and [the son's] eye injury but [the father] has been able to recognise that this off hand event was inappropriate. Emotionally and intellectually he is more than capable of caring for the children.
h)the mother's capacity to recognise and provide adequately for the physical, emotional and intellectual needs of the children and if necessary any recommendations to assist the mother;
[The mother] is more than capable of recognising and providing adequately for the physical, emotional and intellectual needs of the children.
i)insofar as if can be ascertained, the perception of the children's relationship with the father, the mother and any other significant adult in the life of the children:
The children were not individually interviewed for the purpose of this assessment. Both children had been under a great deal of pressure and [the daughter] has been interviewed on a number of occasions. The children were seen adequately with both parents and it was not believed to be in their best interest to subject them to further interviews at this time. Both parents provided ample similar information regarding the children's relationship with the adults in the matter.'
j)[the son];
a.the father;
[The mother] recognises [the son] has a good relationship with his father. He was initially strained when [the stepmother] came onto the scene but it has always been a good relationship.
[The mother] believes he has a good relationship with [the son] and they have always had a good deal in common and enjoyed doing a lot of things together. When [the son] and [the daughter] were interviewed together [the son] was keen to see his father as soon as possible. He was very positive about his father stating that there had never been anything that he had done to make him scared or concerned.
When the children were seen with their father both were very excited at the start prior to him arriving and both initiated physical contact almost immediately he entered the room.
It would appear that [the son] has a good relationship with his father.
b.the mother;
When the children were seen alone they appeared to have a good relationship with the mother and spoke most positively about her. Although not interviewed directly with their mother they were seen on a number of occasions with her and appear to have a good relationship with her. [The son] spoke positively of his mother.
c.the stepmother;
The children were seen in the company of the father and [the stepmother] for an extended period of time.
They appeared very positive about the time they spent together. There was a good deal of laughter and information shared about the times they had spent together and the things they had done. It would appear that [the son's] relationship with [the stepmother] is quite strong now.
ii)[the daughter];
a.the father;
[The mother] believes that [the daughter] is somewhat reluctant in her relationship with her father at this time. She is unsure whether this is attributed to the allegations being true or just the allegations having been made and [the daughter] now having to face her father. She stated there had been a number of behaviours that she had seen [the daughter] undertake that could be attributed either way. She does however feel that [the daughter] having seen her father recently had no ill effect tin her and there was certainly no sign of regressed behaviour. In fact [the daughter's] behaviour has continued to improve after seeing her father.
When seen together [the daughter] was very positive about her relationship with her father. [The daughter] assured that there was nothing about her father that was scary. When seen with her brother she was slightly unsure about the thought of seeing him. She was the first to recognise the father when he came for the joint session, saying 'hi' and very soon thereafter initiating physical contact with him. She was the one looking for a hug and a cuddle but was somewhat noncommittal about seeing her father again. At the start of the session she initially called him [by his first name] then self corrected and called him 'Dad' and continued to call him 'Dad' thereafter.
b.the mother;
[The daughter] appears to have a good relationship with her mother.
c.[the stepmother];
[The daughter] appears to have a good relationship with [the stepmother].
j)insofar as they can be ascertained the wishes of the children with respect to residency and contact;
Both children appear to be happy living with their mother. The mother agrees with this and the father perceives this as likely to be the best situation.
Both children appear to be happy to see their father.
k)any recommendation which the Court Expert considers appropriate in relation to residency and contact including the contact the children should have with the non resident parties:
i)whether contact should occur;
It is recommended the children remain resident with their mother. Contact should occur between the children and their father and this has already begun in an Order by Consent recently.
ii)if contact should not occur, why it should not occur;
Contact should not occur if there is any inappropriate discipline of the children or further allegations by [the daughter].
iii)if contact should occur, the nature and duration of that contact and whether the contact should be supervised;
There is no need for the contact to be supervised but it should occur accompanied by [the stepmother] in the household. The nature of the contact should be daytime contact for a period of two months followed by overnight contact on a Friday night, thereafter expanding to contact on a weekend fortnightly basis.
iv)if it is the case that contact should be supervised, the reasons why the Court Expert considers the supervision to be necessary;
Not applicable.
l)whether the children are in danger or at risk of any kind from either parent, or any other significant adult and if so the extent of the danger;
i)the father;
Analysis of the allegations is as follows:
1.Context of family situation
The parents separated with the mother having the belief that the father was dishonest and having an affair. The father's new partner becomes apparent which enforces the mother's belief about the affair. The children begin to believe that the father's new partner has taken the father from the family. They continue to have contact every fortnight and cease contact following the allegation by the daughter. It does need to be remembered that early on, prior to [the son's] birth, the mother suggested separation given an indication of the nature of her dissatisfaction with the relationship at that time.
2.Hindsight evidence, mother's evidence/behaviour prior to disclosure
[The mother] talks about [the daughter] having problems wetting herself but it being fixed by Wednesday after contact. There had been the incident with the child screaming having nightmares and the mother being upset that the father has been talking about the mother in regard to lies. The father believes that the mother has been bad mouthing him to the children and this is reflected in [the daughter's] behaviour towards [the stepmother] and the mother's behaviour towards [the stepmother] which was soon followed by the sexual abuse allegations..
It needs to be noted there were two lots of sexual abuse allegations. The first was when the mother went to the Police with charges being laid that were pulled by DPP. The second allegations were made by [the mother] to the Family Court in a Form 4. She did not go to the Police until the Police were informed of these charges by the Single Expert Witness.
As a result of the charges and further allegation the father did not see the children for more than 12 months.
Concerns arose from the father's point of view that [the daughter] had vaginal infections and his concern was they were as a result of the pool. When the child was taken to PMH they were diagnosed as being UT1. The father was concerned that the child had been petting the family dog and then putting her hand down her pants. He was also concerned about the over use of bubble bath in the shower. The nature of these matters were of a hygiene basis.
3.Family disclosures
The child made disclosures initially to the mother, as a result of urinating and being in pain. The mother questioned [the daughter] on a number of occasions, which there appears to be some concerns arising from what alternatively could be deemed as fairly simplistic descriptions.
4.Post-familial behaviour
The mother immediately ceased contact but it appears there was no change in [the daughter's] or [the son's] behaviours.
5.Action taken -
After the allegation [the daughter] was taken to PMH where she was assessed. She was then she was seen by CPU and the Police. [The daughter] provided a variety of details, but appeared to be somewhat inconsistent particularly in the names of calling the privates, sore wees, front wees, etc. The Police advised the mother, to undertake no more questioning with the child. At the time there was no Court Order and the mother was told to tell the father about the allegations.
Subsequently the father was charged with indecent dealing. [The daughter] undertook a Police interview and subsequently the DPP decided to not proceed with the charges because of the relative young age of the child (4) in the meantime counselling was organised through Allambee.
The second set of allegations come in a Form 4 12/01/07 again the Police decided not to proceed. These had arisen from the counselling with Allambee. The mother was initially interviewed 20/02/07 by the Police and was told that the charges would not be proceeding. The child's comment in counselling about finding a scared and angry bear when representing the father is just as explicable in being the father's reaction to the truth having not been told about him as it is as a result of him having undertaken the abuse. However general concern with the example of a question provided to [the daughter] during counselling in the second interview, 17/03/06. Whilst this type of interview technique is appropriate in terms of therapy it is not particularly appropriate in terms of forensic assessment as to whether a child has been abused. The question stated, 'OK now you've told me the person has black hair and they've got a turtle, you tell me that the person was Daddy and his name is [name]. And that he was touching your wees and that he made a mess on your body but you fixed it up and you told me that it happened at home and Daddy lives with [the stepmother] and that you were inside the lounge room standing on the mat and you showed me that you were standing on the mat with your arms out and your legs out. is that right?' The child answers, 'yes' further on she says 'yeh that's right'. To begin with the child is being fed a significant amount of information that probably given her age of four was quite confusing. Little can be deemed from this situation. In fact the examination of the child by Dr Peter Hartley (17/03/07) incidentally on the same day, states, 'however the results are much more likely the result of other causes such as poor hygiene' when referring to the mild vulvovaginitis that the child had when examined.
Therefore it is concluded that the findings do not indicate that [the father] undertook any sexual abuse of [the daughter].
ii)the mother;
There is no indication the children are at risk of any abuse from the mother,
iii)[the stepmother];
There is no indication the children are at risk of any abuse from [the stepmother].
(Exhibit A pages 286 to 298)
The mother's second sworn statement of 29 March 2007
The mother provided a sworn statement dated 29 March 2007 in relation to the further disclosures by the daughter (Exhibit A pages 175 to 190). The mother said that, as of the date of the statement, the daughter was still in counselling with Ms Livingston. She recounted her confusion over the charge being discontinued and the steps she took afterwards and explained how the 'Form 4' came to be filed in the Family Court.
The mother also provided information relating to further disclosures by the daughter that were found in the Form 4 form, including descriptions given to Ms Livingston about 'runny egg stuff' that came out of the 'turtle' (Exhibit A page 185).
On 8 June 2007, the daughter was again interviewed by Police (Exhibit A pages 306-241).
The father's evidence is that in August 2007 he received a text message from the mother that the daughter had told her that the father never touched her (Exhibit C para 59).
In September 2007 and October 2007 the father had supervised visits with the son and the daughter (Exhibit C KPB 6).
After Mr Cohen's report was disclosed, the mother terminated the services of her family lawyers and stopped attending court dates in the Family Court. Orders for supervised visits were amended so that the father did not need an independent person to be present when the son and the daughter were visiting (Exhibit C para 66). There is no evidence that there was any harm to the daughter when she resumed contact with the father.
The Police report
The Police incident report set out below summarises the events in justifying the decision not to prosecute the father as a result of the new allegations:
…
On the 6th March 2007, 6876 was contacted by Mr. Stephen COHEN, the Independent Clinical Psychologist for children ([the daughter] and [the son]) on behalf of the Family Court.
He informed 6876 (and it was the first time that 6876 had any knowledge of this information),that the mother, … had submitted a Family Court 'Form 4' on the 12th January 07 at the Family Court.
In that form the mother … has made further allegations of sexual abuse by the father upon [the daughter].
As stated, the mother had not approached WAPOL with these allegations. As a result 6876 got Mr COHEN to fax to CPS the 'Form 4' together with some notes from a Counsellor, Ms. Jemima (@Mim) LIVINGSTONE attached to Allambee Counselling.
Police were able to conclude that:
Shortly after the POI [the father] was arrested in April 06 for the original matter, the mother attended at Allambee Counselling to address her own problems arising from the alleged child sexual abuse upon her daughter.'
She then started taking [the daughter] for her own counselling sessions.
So, from about April 06 to December 06 [the daughter] has attended many counselling sessions where her own sexual abuse matters have been the subject matter.
Following the dropping of the prosecution upon [the father], and his commencement of 'Visiting Rights' for [the daughter], the mother then employed the service of Clement & Co. (Family Court type Solicitors) to assist her build her case.
Once the above information was received at CPS it was incumbent upon police to commence inquiries.
Police inquiries to date of receiving the abovementioned information revealed that the abovementioned allegations appeared to have been arrived at by the solicitor acting for [the mother] by: His discussions with [the mother]; his assessment of and analysis of the counsellor's notes and his own experiences/knowledge.
On the 22 March 2007 [the mother] attended CPS and provided a statement in relation to the new allegations. Information gleaned that her Family Court solicitor a/c Brian MANN of lawyers Clement & Co. identified the 10 listed sexual offences as listed above whilst compiling paperwork, namely the Family Court 'Form 4' for [the mother].
Inquiries with Mr. MANN reveal that he identified and reached his conclusion of the allegations after speaking with [the mother] and analysis of the information supplied in the paperwork/notes of the family psychologist Mim.
Police inquiries discovered that since the original arrest of the POI (April 2006) [the daughter] has had regular weekly, bi-monthly appointments with the family psychologist Mim,
On 24 May 2007, 6876 forwarded a request to the Family Court Registrar MONAGHAN requesting perusal of, and copying of documents held by that Court to assist with police inquiries. Those papers/documents were obtained by police on 05 June 2007.
On 08 June 2007: CIU interview of [the] 5 year old [daughter] conducted 1256hrs to 1359hrs = 63 minutes.
During this interview the child has made several disclosures of a sexual nature in relation to sexual offences committed upon her by the POI.
Her disclosures were non-specific and generally, all over the place, non-sequential and then returning to an event several times with differing statements.
In most instances the events referred to by [the daughter] were spoken about as if the events occurred in very recent times (as if only yesterday!).
It has to be noted that this child has not seen or been in the presence of the POI (her father) for approximately 15 months, not since she was approximately 4 years and 4 months old. She made several references to particular items of clothing that she was wearing, again, as if it was a very recent event. Her reference to what she was wearing and some locations i.e.: in the car, and on the playground, appeared to be with extreme accuracy but then she contradicted her statement by not knowing where she was in the car or where the playground was.
Example: in one instance [the daughter] states that she was on a playground. She was wearing tracksuit pants & jacket. The track suit pants do up with a button and a zip. She told dad to stop touching her and he 'just runned home'!
[The daughter] had no knowledge of where the playground was. First she stated that she was alone with dad. A short time later when referring back to the playground she was adamant that her brother was with her.
A similar incident occurs in the dad's car. At one occasion she states that she was alone with her dad & when she recollects that incident later she states that her brother is present.
Interestingly, in the previous CIU of 2006 prior to the POI being charged [the daughter] makes reference to the 'Turtle' and 'two little turtles'. She appeared at that time to be describing her father's penis and testicles.
In this CIU when asked to describe the 'Turtle' [the daughter] states 'it has a big shell on its back and it goes in the water'.
When asked about her reference to a. 'Tickler', an item that her mother and Mr. MAUN perceived to be a vibrator (sexual implement) she mimicked its sound and drew that implement on a piece of paper.
Again, interestingly, the 'Tickler' item was drawn by [the daughter] with extreme accuracy with several drawings that she has done whilst attending her regular counselling sessions with Mim.
She made some allegations relating to her dad touching her with the tickler but when asked where the 'tickler' was, she stated that it was at the home where her Mummy and brother live.
It is the belief of the investigator that the evidence provided by [the daughter] at this CIU was inconsistent, unreliable with insufficient particularisation and not possible to be relied upon in a court of law.
Detective BIRTWISTLE monitored the previous CIU interview in 2006. That interview was deemed to be of no evidentiary value, hence the Nolle Prosequi.
Having considered all aspects of this inquiry namely:
•The Nolle Prosequi of the first allegation.
•Possible sinister motives of [the mother] in submitting the fresh allegations to the Family Court and not to police, in that the allegations may have been to sway that Court in its decision in regards to any 'Visiting Rights' of the father.
•The investigators belief/perception that [the daughter] has been 'schooled' in many things she states by her constant visits to the psychologist. This together with the way a (now) 5 year old recalls incidents/matters that are clearly (at the time of the CIU interview) over 15 months old at the time of her recollections.
•The ability with which she draws the 'Tickler' which accurately copies the same type of drawings drawn for the psychologist on more than one occasion (copies in the Family Court paperwork attached to this file).
•All references to any matters in the CIU had insufficient particularisation issues.
With the information/evidence at hand police were of the belief that the matter could only proceed if there were to be some/any admissions from the POI.
On the 17 August 2007, 6876 contacted the POI, [the father] and invited him to attend the CPS office with a view to conducting a video record of interview. [The father] refused that request. A short time later his lawyer Ms. Laura TIMPANO contacted Detective BIRTWISTLE at CPS and reiterated that [the father] would not attend or take part in any interview with police whatsoever. (Copy of e-mail correspondence from Ms. TIMPANO attached to case file).
…
Case File to file. No further inquiry necessary.
No person charged.
26/10/07
(Exhibit A pages 279-282)
The Tribunal has not given any weight to the comments about coaching; otherwise the report accurately summarises the events.
Evidence of Mr Paul Ward
Expert evidence was given by Mr Paul Ward. His witness statement was admitted as Exhibit G. He holds a Masters in Clinical Psychology.
Mr Ward's summary was:
In answer to your specific questions:
4.A general description of our client's personality type including whether or not you would regard our client as a person who has a tendency to commit offences of a sexual nature
[The father] has a non-clinical personality type, with no identified risk factors for sexual offending.
Both the SCL-90 and MMPI-2 show low risk of Psychoticism.
5.Whether or not you think our client has a sexual interest in children
I do not have specific evidence of this and therefore it is difficult to express a strong opinion. However, [the father's] response to the issuance of the negative notice is as I would expect from a person who had been falsely accused, and his elevated score on Persecutory Ideas and normal scores on Deviant Beliefs, Ideas and Thoughts are not consistent with such interests.
6.Whether or not you think it is likely that our client will commit a sexual offence against a child in the future
As per question 4,1 would expect there would be a low risk of such offending.
(Exhibit G page 4 of report)
Mr Ward accepted that people with the same scores as the father may well be sex offenders (ts 22, 23 March 2018).
Evidence of Ms Rosemary Cant
Expert evidence was given by Ms Rosemary Cant. Her witness statement was admitted as Exhibit K
Rosemary Cant is highly qualified and often gives evidence for the CEO in these proceedings.
Ms Cant's report is of limited value (ts 45-51, 22 March 2018). She did not interview the daughter or any of the family members. Her evidence is an analysis of the daughter's interviews and statements when compared to published studies.
Ms Cant stated that in her opinion '[the daughter's] descriptions are consistent with her cognitive and developmental stages. In each of her interviews the level of language used by [the daughter] is stable and is appropriate to her age at the time of the interviews' (Exhibit K page 4).
Ms Cant was critical of the usefulness of the report prepared by Mr Ward as a prospective tool for assessing risk (ts 32, 22 March 2018). The essence of the criticism was that the facts concluded by Mr Ward are not useful predictive tools for sexual assault. In his evidence Mr Ward frankly accepted the limitations of the report as identified by Ms Cant. The Tribunal has not given weight to Mr Ward's report.
Coaching
The father submitted that the mother had coached the daughter. This is a very serious allegation. The mother was not called to give evidence by either party and was not subject to crossexamination. Her witness statements to the Police were in evidence as part of Exhibit A.
There was evidence of an unidentified person attending at the father's and the stepmother's house and informing the stepmother that the mother and other women were discussing coaching the daughter. The person was only identified as an ex-boyfriend of the mother. He was not called. The evidence was hearsay on hearsay and of no probative value.
The father and the stepmother and his brother-in-law gave evidence of a visit from a stranger stating that he had witnessed the mother and her friends discussing coaching children.
Although there was inconsistent evidence from the father and his witnesses as to when the stranger attended the house, the Tribunal does accept that he did attend the house. However the witnesses' evidence is hearsay on hearsay and it is not evidence which the Tribunal is prepared to accept in the absence of the stranger giving evidence and the mother being challenged as to the coaching in crossexamination. The father could have requested the mother to be called.
This Tribunal is not prepared to draw an inference that the mother coached the daughter without the mother having that allegation put to her. The Tribunal may act on the basis of reasonable suspicion in so far as it makes a finding about the risk to the child. The Tribunal may not act on a reasonable suspicion in making a finding as to whether a person has coached a child. In any event, given the Tribunal's ultimate decision it is unnecessary to do so.
Character evidence
Favourable character evidence was given by two parties (Exhibit J and Exhibit F).
Character evidence is of limited value in child sexual assault. Good character and child sexual assault are not mutually exclusive.
The incident with the son
The son, aged nine, also spoke to Mim Livingstone (Exhibit A pages 160-174). The son described the father as being mean and said he lied a lot. He described an incident where the father threw a can at his head and caused it to bleed (Exhibit A pages 164 and 167). The son said that the father had lied about the incident to the mother and said it was accidental (Exhibit A page 164). The father denied that the incident was other than accidental.
This incident with the son, whatever happened, offers no assistance to the Tribunal in determining whether the father is at any risk of sexually abusing children. The Tribunal has not taken the incident into account.
Flight QF 718
On 11 June 2017, the father and H, his daughter, then aged 12, were on board Flight QF 718 from Canberra to Perth (Exhibit B pages 18-24).
The father was sitting by the window and another child, a teammate, was next to him and H was in the aisle seat. The mother of the teammate was sitting directly across the aisle with two other teammates. During the course of the flight they changed seats. A teacher travelling on QF 718 was seated in the row in front of the father and H. She subsequently moved to the same row. The teacher reported that:
It looked like the male was holding the female's face, for a good 3-4 seconds, which looked like a passionate kiss due to his head bobbing up and down. Shortly after that the female lay down in the male's lap and remaining in that positon for the remainder of the flight.
When questioned further about exactly what she saw [the teacher] explained the lights were dimmed and she could only say for sure that the male's hand was on the female's face, that their heads were close together, but she did not see a kiss, the actions suggested to her that it was a kiss.
(Exhibit B page 19)
H and the father denied that anything inappropriate had happened. The other mother did not see anything inappropriate.
On 24 August 2017, the Department closed the case.
The Tribunal does not find that the father kissed H or otherwise acted inappropriately as alleged by the teacher.
The CEO's submissions
The CEO submitted that:
On all the information currently before the decision-maker, there are really two competing explanations for [the daughter's] descriptions of sexual behaviour. The first is that [the daughter] has been exposed to sexual experiences with [the father], as she maintained. Or, as suggested by [the father], [the mother] may have exposed her to the sexual concepts she describes, and has manipulated [the daughter] as part of a vindictive scheme.
The Tribunal does not accept that the binary alternatives put by CEO necessarily exclude any other possibility.
The CEO submitted:
[The CEO] acknowledges that [the daughter's] third interview, that took place a little under a year and a half the initial complaint, is, in parts, both embellished and vague. [The daughter's] evidence has been weighed in light of the time passing, her age and development and the quality of the questions asked of her. The salient feature is that [the daughter] maintained [the father] had sexually touched her.
Section 12(8) factors
Section 12(8)(a) - best interests of children
The father was in a position of trust with the daughter at any time she was at his home.
However, as held in G at [272], 'the fact that a person is in a position of trust and authority is not of itself sufficient to justify the issue of a negative notice'.
Section 12(8)(b) - When the offence was committed or is alleged to have been committed
The offences are alleged to have been committed in 2006, about 12 years ago.
In G the interval was 14 years and it was held at [276], that the 'long interval between when the offences are alleged to have taken place and the date of hearing favour the grant of an assessment notice ... but the long interval is not of itself sufficient to justify the grant'.
Section 12(8)(c) - the age of the father when the offence was committed or is alleged to have been committed
The father was 29 years older than the daughter at the time the original allegation was made. The daughter was four years old.
Section 12(8)(d) - the nature of the offence and any relevance it has to childrelated work
The alleged offending is sexual offending against a child, which is undeniably connected to childrelated work. The offending as alleged would involve involves a serious breach of the trust between a parent and child.
Section 12(8)(e) - the effect of future conduct by the father in relation to a child if that future conduct were the same or similar to the conduct the subject of (i) any offence committed by the father; or (ii) any charge against the father
Indecent dealing with a child is serious. If the conduct alleged against the father was true and was repeated, that would have significant adverse impact on a child.
Section 12(8)(f) - any information given by the father in, or in relation to, the application
Prior to these written submissions, the father had not provided a comprehensive account of his version of events.
The father has always denied the allegations.
The most significant evidence from the father is that of Mr Cohen
The best interests of children: s 12(8)(a) and s 3 of the Act
The accounts of sexual abuse given by the daughter inevitably give rise to concern.
Ultimately, three people gave evidence about what to make of the disclosures by the daughter.
Mr Cohen's report of 2007 was prepared in reasonably close proximity to the alleged events in early 2006. He was specifically approached as an expert to assess the risk to the daughter by the Family Court. He was specifically asked about the risks identified in the Form 4 which detailed 10 allegations of sexual assault.
Although Mr Cohen did not meet with the daughter individually, he met with the daughter on three occasions, including one interview where the daughter was with the son and no other adult (Exhibit A pages 285-286).
The daughter was not interviewed individually by Mr Cohen because 'She endured a number of police and other interviews including significant counselling' (Exhibit A page 288).
The Tribunal does not accept the CEO's submission that this failure constitutes a 'huge hole': Mr Cohen had an obligation to the Family Court as an independent expert. The Tribunal can reasonably infer that he would have interviewed the daughter separately if he felt it necessary.
The CEO submitted:
[The father] provided Mr Cohen's report to the CEO, which relied on the findings of Police and the ODPP to conclude that no sexual abuse took place. The CEO has considered this report but it has not substantially shifted the assessment of sexual risk as Mr Cohen did not speak to [the daughter], and the report did not adequately address why Mr Cohen was able to dismiss [the daughter's] disclosures to the extent that the CEO views his finding as compelling.
The references to the Police report appear at pages 13 and 14 (Exhibit A pages 297-298) of the 14 page report.
Importantly, the CEO chose not to crossexamine Mr Cohen. The Tribunal does not accept that the report relied on the findings of the Police and the ODPP. Mr Cohen had significant documentary evidence before him and conducted extensive interviews with family members before reaching his conclusions.
Ms Livingston's first statement to the Police was made in 2006.
Ms Livingston does not hold any qualifications in psychology. She has limited qualifications in assessing the information provided to her by the daughter. She was not assessing the daughter for forensic purposes. Ms Livingston did not express an opinion as to the risk to the daughter. Mr Cohen had Ms Livingston's counselling records and police statement when he assessed the risk to the daughter.
The Tribunal does not accept that Ms Livingston was better placed than Mr Cohen so as to give evidence of greater probative value.
Ms Cant did not interview the daughter or any family members. Although she read some of the information provided to Mr Cohen, she expressed her views long after the alleged events.
Mr Cohen does address the statements made by the daughter to Ms Livingston and the Police at Exhibit A page 298. He refers to the inconsistencies in her statement and the information given to her. Mr Cohen clearly considered the contents of the interviews.
The person best placed to assess any risk to the daughter was Mr Cohen. His conclusion was that the daughter was not at risk from the father. His expressed his expert evidence as part of his obligation to the Family Court arising from his appointment. The Tribunal accepts his expert evidence.
The Tribunal does not draw any inference from the decision of the Police not to prosecute for the allegations made in 2007 in the Family Court or the ODPP's decision not to proceed with the first charge. The standard of proof required for a criminal conviction is substantially different from that in proceedings under the Act.
In a criminal court the case based on the evidence of a child who was under five years old at the time of the alleged offence without any admissions from the father was weak.
Conclusion
Having regard to the evidence overall and in particular:
a)the weight of Mr Cohen's report; and
b)the lack of any hint of inappropriate behaviour in the years since the allegations,
the Tribunal is not satisfied that there is an unacceptable risk if a working with children assessment notice is issued to the father.
The Tribunal is not satisfied that because of the particular circumstances of this case, a negative notice should be issued to the father.
A working with children assessment notice should be issued by the CEO to the father.
Orders
1.The Tribunal orders that the decision by the Chief Executive Officer, Department for Communities to issue a negative notice to the applicant be set aside and that the Chief Executive Officer issue an assessment notice to the applicant under s 12(1)(a) of the Working With Children (Criminal Record Checking) Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
4 OCTOBER 2018
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