BPM v Children's Guardian

Any information given by the applicant

1. The applicant is no longer married to his former wife, and lives with his current partner of 22 years. His employment history includes 16 years of self-employment as a tradesman, and 10 years as a Cleaning Team Leader with a local council. In 2013 and 2014, he undertook a Certificate IV in Community Services Work and a Diploma in Community Services Work. For approximately two years, he has been volunteering at an outreach program operated by a charitable organisation.
2. The applicant's former wife made a written statement in which she stated the charges against the application were brought about because of the actions of her late mother, to whom she did not speak after the court proceedings. The applicant's wife said that the Jobst suit her daughter was required to wear created irritation, causing the alleged victim to scratch, and which often resulted in discolouration of the alleged victim's skin. The applicant's wife said at no time did her daughter ever inform her of any inappropriate behaviour by her father.
3. The applicant's daughter, the alleged victim, made a written statement. She is an assistant at a Family Day Care Centre, and has qualifications in nursing, midwifery and childcare. She states she finds it hard to believe that she would have voluntarily attributed to her father any of the actions said to have been carried out by him. She states she has a loving and caring relationship with her father and mother, and has no lasting problems with any of the behaviour which was allegedly attributed to her father and/or mother over 20 years ago. She states she has never had any hesitation in allowing her father to have direct contact with her children or the children of her friends.
4. In a written statement, the applicant's mother states she spent a lot of time with the applicant looking after the alleged victim after she sustained her burns, and saw the applicant applying the special cream many times and changing the alleged victim's Jobst suit. She said she never observed any inappropriate behaviour by the applicant towards the alleged victim. She states the applicant would never have showered or bathed with the alleged victim, and due to burns, for a long period the alleged victim was unable to shower, and had to bathe in a special solution.
5. The applicant's general practitioner, Dr W, provided a letter to the Children's Guardian dated 9 December 2014. He has been the family doctor for the applicant's family for over 30 years. In his letter, he states that the applicant "explained all to me" at the time the applicant was accused of indecency in 1987, and they had extensive discussion. Dr W states "knowing (the applicant's) behaviour, manner character and overall feelings I was certain that the conclusion the court had arrived at of not guilty on all counts was 100% correct truthful and a proper verdict". Dr W referred to the applicant as having suffered distress and anxiety episodes as a result of the accusations and that it required 6 months of counselling and reassurance to reassure him he had been found, and was, in fact, not guilty. Dr W further stated the applicant has been an "exemplary" father and grandfather.
6. The applicant also relied on a letter from the coordinator of an outreach program in which the applicant has been volunteering for almost 2 years. His volunteer work involves providing assistance and support for adults with mental illness and disability. The coordinator states the applicant has proved to be trustworthy and respectful, builds relationships well and is trusted to work independently one-on-one with people in need of support.
7. The applicant also relied on four references supplied by friends, including those who have known him for several years, and whose young son the applicant has looked after. As well, the applicant provided references from two friends who have known him for longer periods, including a Justice of the Peace who has known him for 30 years and had supervised him in a work context. He said he found the applicant "to be a reliable, conscientious and extremely honest person".

Any other matters the respondent considers necessary

1. The respondent contends that the decision the subject of review is the correct and preferred decision and should be affirmed. In its written outline of submissions, the respondent submits, inter alia, that because the Tribunal is protective and because the paramount principle is the safety, welfare and well-being of children and, and in particular, protecting them from child abuse, the assessment should err on the side of caution if there is a deficiency in information or if there is any doubt created by the available material: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [119].
2. In oral submissions, counsel for the respondent submitted that the reports produced by the Department, while not able to be tested before the Tribunal, as a whole, raise a number of issues that tend to go towards showing that there was abuse of the alleged victim. Counsel for the respondent pointed to Dr Seidler's agreement that the additional material which was not before her during the risk assessment, also raises concerns. Counsel for the respondent suggested that Dr Seidler, who was not an independent psychologist engaged by the Tribunal, has taken a partial view and presented one side of the story.
3. Counsel for the respondent also submitted that the applicant has not been honest to either Dr Seidler or to the Tribunal. Counsel points to the video statement in which the applicant claims there was no physical evidence his daughter had been interfered with; which is contrary to the evidence of Dr Booth which indicates that there was evidence interference had occurred.
4. Counsel for the respondent also submitted that the applicant was not honest in his report to Dr Seidler that he had not received mental health treatment. However, the Tribunal does not find the applicant has been dishonest in this regard. Rather, it is reasonable to expect that the applicant understood mental health treatment to be limited to review by a psychologist or psychiatrist, and not necessarily review by his family doctor. Similarly, the Tribunal was not persuaded that the applicant was deliberately untruthful and inconsistent in relation to the cessation of his drug use, as suggested by the respondent.

Conclusions and orders

1. The issue for determination is whether, on the material before it, the Tribunal can be satisfied that the applicant poses a risk to the safety of children.
2. Notwithstanding the applicant's acquittal in 1989 of the indecency offences, the fact that proceedings had commenced in respect of those offences was sufficient to "trigger" a risk assessment by the respondent. As part of its assessment, the respondent obtained material which alleged the applicant had engaged in sexual abuse of the alleged victim prior to the alleged offending on 17 July 1987 and that it had continued to occur up until Departmental involvement in October 1987. The material available suggests that this conduct had commenced when the victim was toddler (the evidence of Mrs K), and at least 12-18 months prior to Dr Booth's examination of the alleged victim in October 1987.
3. The applicant submits that his acquittal is determinative of the issue about whether he sexually abused his daughter. However, it is important to note that that the criminal proceedings and the Tribunal proceedings are materially different. In the criminal proceedings, the jury was tasked with finding whether the elements of the criminal offences with which the applicant was charged were proved beyond reasonable doubt. In that case, the jury was not so satisfied and returned verdicts of not guilty.
4. However, the role of the Tribunal is not to determine whether the applicant is guilty or not guilty of the offences with which he had been charged. Rather, it is to review the decision of the Children's Guardian to refuse the applicant a Working with Children Check Clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable law.
5. The material includes material which may not have been admitted into evidence during the applicant's criminal trial. The applicable law includes the Child Protection (Working with Children) Act 2012, which provides the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature.
6. The transcript of the District Court proceedings is not available. Therefore, it has not been possible to consider the evidence presented during the applicant's criminal trial. Only very limited information about the trial was available, namely, that it was a jury trial of approximately 3 days' duration and the jury returned verdicts of not guilty. The Tribunal cannot speculate on the evidence admitted at the applicant's criminal trial, nor any directions that were given to the jury.
7. The Tribunal has before it evidence, including primary records made at the time the initial notification of abuse was made, and records of the actions taken by the Department thereafter. It includes the specialist opinions of Dr Booth and Dr Banning, as well as the various documents relevant to the proceedings in both the Local Court and the Yasmar Children's Court.
8. The Tribunal acknowledges that much of the evidence has not been tested, except to a limited extent certain oral evidence given during the committal proceedings. The applicant has consistently maintained that he never sexually abused his daughter. Certain admissions said to be made by the applicant to a Departmental officer about touching and blowing of raspberries on the alleged victim's genitals and the touching of his penis, the applicant now denies having made, and further denies that he ever engaged in that conduct.
9. The applicant's oral evidence to the Tribunal, including his video statement and written statement, is limited in terms of his response to the allegations of sexual abuse. He suggests that the allegations were in large part due to the actions of his mother in law, whose evidence he suggests was tainted by her disapproval of him. The applicant also makes general reference to the alleged victim's burns rehabilitation treatment and the regular application of cream. The written statements of the applicant's wife and mother, which are supportive of the applicant's denial, provide similar explanation for the allegations.
10. Mrs K is now deceased. Her evidence was tested to a limited extent during the committal proceedings, however, there is no information about the evidence, if any, she gave during the applicant's criminal trial. However, the evidence of Mrs K is not the only material before the Tribunal relevant to whether the applicant engaged in sexual abuse of the alleged victim. Rather, the Tribunal is in the position where the explanations proffered by the applicant, his mother and former wife are to a certain extent addressed by the health professional evidence; namely, Dr Booth in her written reports and her evidence during the committal proceedings. Similarly, such explanations do not appear to have been accepted by Dr Banning, the independent expert engaged by the Children's Court, who found it highly likely that the alleged victim had been sexually abused.
11. During the Tribunal hearing, the applicant stated that he disputes the medical evidence. However, besides the cross-examination of Dr Booth during the committal proceedings during which another hypothesis for the impact on the victim's genital area was raised, there was limited detail of the basis on which the professional evidence was disputed.
12. There is no record of evidence given by the applicant (if he did in fact elect to give evidence) or by other witnesses in the criminal trial. The applicant did not take part in a police record of interview, as was his legal right. The victim was not permitted to be interviewed by police, and there was only a limited opportunity for the victim to be interviewed by Departmental officers due to the applicant and applicant's wife's reluctance for further interviews to occur. Whilst there were subsequent assessments of the victim, including a second medical assessment by Dr Booth in April 1988 and an assessment by Dr Banning in August 1998, both of those assessments were made at the direction of the Children's Court, and at some time after the alleged sexual abuse had occurred.
13. The Tribunal is mindful that the allegations of abuse prior to, and after 17 July 1997, do not appear to have been made the subject of specific individual charges against the applicant. Rather, they appear to have formed part of the evidence led by the prosecution, at least during the committal proceedings, as relevant to the offences alleged to have occurred on 17 July 1987. They are, in the Tribunal's view, clearly relevant to the Tribunal's determination in this matter.
14. The Tribunal recognises that this is a finely balanced matter. The applicant has been found not guilty of offences with which he has been charged. However, on the balance of probabilities and taking into account the gravity of the allegations, the Tribunal finds that the evidence before it is sufficient to make a finding that the applicant engaged in sexually abusive conduct towards the victim when she was a child and entrusted to his care. In coming to this conclusion, the Tribunal gives particular weight to the evidence of the health and allied health professionals tasked with assessing the victim and the circumstances in which the allegations arose. It includes the evidence of the admissions made by the applicant and the applicant's wife, and the victim's statements about the applicant's actions. Furthermore, in respect of the evidence of Dr Booth and the findings of Dr Banning, the Tribunal notes that at the time of their respective assessments, Dr Booth was an experienced paediatrician and Dr Banning was an independent expert engaged by the Children's Court.
15. The Tribunal finds that the evidence produced by the respondent was not significantly diminished by the evidence of the applicant and his family members. Rather, the Tribunal finds that the totality of the evidence before it is sufficient to enable the Tribunal to make a finding the applicant had engaged in sexually abusive conduct towards a child. The Tribunal did not consider it necessary to make specific findings in respect of all of the matters about which there was material, but was satisfied on the whole of the evidence before it that the applicant engaged in conduct with the victim which constitutes child abuse.
16. In relation to the risk to the safety of children, the applicant seeks to rely on Dr Seidler's risk assessment, and in particular, her finding that the applicant presents a low risk of sexually abusive conduct even if he did in fact engage in the sexual abuse of the victim. Importantly, however, Dr Seidler's assessment was conducted primarily on the basis of the applicant's self-report. The additional material provided by the respondent was not before Dr Seidler during her assessment of the applicant and therefore could not be raised with the applicant as part of the assessment process. Dr Seidler states that the additional material would not alter her assessment of the applicant as presenting a low risk. However, she agreed that the further evidence raised concerns. With great respect to Dr Seidler, it is difficult to see how she was able to remain resolute in her opinion that her assessment would not be any different, whilst readily acknowledging that the additional material raised concerns.
17. The Tribunal treated Dr Seidler's assessment with some caution in light of the limited basis on which the assessment was conducted. Moreover, the Tribunal acknowledges that a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children.
18. The Tribunal takes into account that there is no evidence of any further sexually abusive conduct by the applicant after Departmental involvement was initiated in October 1987. There have been no proceedings commenced for any child-related offences for a period of 28 years. After the applicant's criminal trial, there was not objection to Dr Banning's recommendation that the alleged victim be released into the care of the applicant and his wife. There is no evidence of any misconduct during the applicant's paid and volunteer work. He has a close relationship with his daughter, and his former wife is supportive of him. All of those factors militate in the applicant's favour.
19. The character references indicate the applicant is held in high regard, including by friends who do not have concerns about their children having contact with him. References in relation to his former employment and volunteer work attest to the applicant as being as being a good worker and volunteer. However, the applicant's work history does not indicate that he has previously worked with children. Apart from his recent community placement which required him to have a working with children check clearance, there is no evidence that the applicant has previously worked with children.
20. On balance, and taking into account the gravity of the allegations, the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety of children.
21. It was apparent to the Tribunal that the applicant feels very much aggrieved by the allegations and the processes that arose from them. In this sense, he perceives himself to be a victim in the matter, persecuted and unsupported. Of concern to the Tribunal is the applicant's focus on his perceived unjust treatment, and indicates the applicant's limited insight into the seriousness of the concerns held by those tasked with investigating, prosecuting and implementing measures in the context of child protection. Indeed, the applicant's defensiveness was evident in his self-report to the psychologist, in his video statement, and in his evidence to the Tribunal. Rather than imperfect memory alone, his defensiveness may well contribute to his inability to acknowledge the existence of certain important evidence that formed the basis of the allegations of sexual abuse.
22. For example, the applicant's claim, strongly asserted during his video statement, that there was no physical evidence to indicate his daughter was interfered with, is contradicted by the evidence of Dr Booth (including her two written reports and her oral evidence during the committal proceedings). Whether he agreed or disagreed with the findings of Dr Booth or if her evidence was subsequently not admitted or discredited during his criminal trial, her evidence exists and formed part of the material considered by the respondent in its risk assessment, and was produced during the Tribunal proceedings.
23. Similarly, the applicant's assertion that there was not an interview with him and the alleged victim together is also clearly contradicted by the evidence of Dr Banning, whose report indicated a joint interview with the applicant and the alleged victim occurred on 18 August 1988. In addition, the applicant now states he and his wife did not make certain admissions attributed to them during the course of interviews with Departmental officers.
24. Therefore, at the present time, the applicant appears to dispute a large proportion of the evidence that formed part of the committal and Children's Court proceedings, and which was considered for the purposes of the respondent's risk assessment. The applicant's significant defensiveness and inability to acknowledge the existence of evidence, even if disputed, is in the Tribunal's view, concerning. Furthermore, whilst he now says he bears no ill will towards those involved in assessing, investigating and prosecuting the allegations in 1987, it is evident that the applicant is still upset and aggrieved. Of concern is his evidence that he wished for child protection authorities to get "the hell" away from him at the time of his acquittal, and that he did not trust them. Likewise, his evidence that child protection officers conducted "invasive" tests, "whisked off" the alleged victim (whose account he suggested lacked sufficient independent corroboration), and left him out of the process, gives rise to concerns that the applicant lacks sufficient insight into the seriousness of the allegations, the role of child protection and its focus on the protection of the child, rather than the welfare of the alleged perpetrator.
25. If the applicant is granted a working with children check clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
26. Taking into account all of the evidence before it, the Tribunal could not be satisfied that the applicant, if working with children, would be in a position to respond and act appropriately in situations where there are signs or indicators of child abuse, and which would warrant the intervention of child protection authorities. Furthermore, the Tribunal could not be satisfied that if working with children, the applicant would be able to dispassionately and objectively manage situations and take appropriate protective steps in circumstances where a child is at risk. In coming to this conclusion, the Tribunal is mindful that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration.
27. Therefore, on all the evidence both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in sections 15(4) and 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds on the balance of probabilities that the correct and preferable decision is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.

Order: The decision of the Children's Guardian dated 30 October 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2015