The applicant, who will be referred to as CDD, applied for a working with children check clearance on 23 August 2013. As CDD had been charged with aggravated sexual assault with a victim under the age of 16 years, an assessment of risk was undertaken by the Children's Guardian. On 11 April 2014, an interim bar was placed on CDD and on 29 July 2015, the Children's Guardian refused to grant him a working with children check clearance. CDD's application for review was lodged, within time, on 26 August 2015.
There is no dispute that the Tribunal has jurisdiction to hear and determine CDD's application.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of CDD was not to be published without the leave of the Tribunal. For this purpose the pseudonym CDD has been used for the applicant's name.
[2]
LEGAL PRINCIPLES
CDD requires a working with children check clearance because he seeks to work with children in musical theatre. He has previously worked as a maintenance worker in schools. He may, in the future, seek to work with children in a paid or unpaid manner.
The Child Protection (Working with Children) Act 2012 ('the Act') provides that a worker must not engage in child-related work unless he holds such a clearance. (section 8 of the Act).
The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (section 3 of the Act).
The Children's Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
Those matters that will trigger such an assessment by the Children's Guardian are set out in Schedule 1 of the Act. They include where a person has been the subject of a finding by a reporting body that the person engaged in sexual misconduct committed against, with or in the presence of a child, including grooming of a child (Schedule 1 - 2(a) of the Act).
In this case, the risk assessment was triggered because in 2002, the applicant had been charged with the aggravated sexual assault of his then five-year-old daughter. The prosecution did not proceed, and the charge was subsequently dismissed, as there were inconsistencies in the forensic evidence (both the daughter's account and the medical evidence) and there was a risk of contamination of the daughter's evidence.
Having undertaken a risk assessment for CDD, the Children's Guardian then refused his application for a working with children check clearance.
The Tribunal has the power to review such a decision under section 27 of the Act. In doing so, the Tribunal must consider the following factors set out in section 30(1) (as are similarly set out in section 15(4) of the Act):
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(k) any other matters that the Children's Guardian considers necessary.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
In considering whether an applicant is a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
That test has been held to be applicable in this Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra).
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech for the Bill that became the Act in question: section 32 (2) (f) of the Interpretation Act 1987.
On 13 June 2012, the second reading speech for the Bill, which became the Child Protection (Working with Children) Act 2012, was given by Mr Dominello, Minister for Citizenship and Communities, and Minister for Aboriginal Affairs. In part it reads as follows:
All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant.
While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
The Minister noted that:
Any assessment trigger, whether a criminal matter or a disciplinary matter, must be able to sustain an appealable bar against working with children. There are two conditions that need to be met to achieve this. First, the investigation of the conduct must be sound and must have taken into account the principles of natural justice; and, second, the conduct must be of a serious nature and must have actually occurred. Unsustainable allegations will not sustain an appealable bar. Only employers whose investigation practice meets the first condition will be reporting bodies that report disciplinary matters. They will be obliged to do so by law….Only sexual assaults, sexual misconduct and serious physical assaults have been identified to date as meeting the second part of this requirement. The range of matters to be reported may be extended by regulation.
The relevant applicable standard by which risk is to be assessed when considering an application such as this is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). BJB v The Children's Guardian (No 2) [2014] NSWCATAD 163
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of those considerations set out in sections 15 and 30 of the Act.
The Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the Civil and Administrative Act 2014; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]- [17].
Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.
[3]
Background
The applicant was charged with the aggravated sexual assault of his daughter when she was five years old, with the charge being withdrawn by the prosecution in August 2003. The applicant has three early driving related offences and two 1983 convictions for the possession and smoking of cannabis. His criminal history to date contains no further entries. Between 1994 and 2003, during a period of protracted custody disputes, apprehended violence orders were made against the applicant for the protection of his former wife and former mother-in-law.
[4]
Risk Assessment Report
The 'trigger offence' for the preparation of a risk assessment report by the Children's Guardian was the charge of aggravated sexual assault of the applicant's daughter.
The risk assessment report provides the following overview of the allegation as prepared by the Police Force:
Between…April 2002 and..July 2002, the alleged victim received a massage from her biological father..at his address…During the massage the accused rubbed the buttocks and outside area of the child's vagina. The child claims that she bled from her vagina as a result of what the accused person did to her.
When informed of the allegations, the applicant told the police 'Can I just tell you, she fell over at her house and cut her 'ginny', that's all I know.' It is undisputed that 'ginny' was the applicant's daughter word for her vagina.
The report relies on medical evidence by Dr Aaron Goldberg that when examined after the allegations had been made, the daughter's hymen was found to be 'nearly completely absent' and that there was 'compelling evidence to suggest vaginal penetration by a blunt object..' According to the risk assessment report, 'there was evidence of repeated penetration over a period of at least several weeks and almost certainly over several months.'
The prosecution ordered that the matter not proceed due to:
concerns that the case was not strong enough;
conflicting forensic reports;
the age of the complainant;
the possible contamination of her evidence.
Further information disclosed by the Department of Community Services noted:
sexualised behaviour by the applicant's daughter in 2004;
a complaint by the daughter's mother that she had returned from a visit with the applicant wearing nail polish, make up and 'French knickers.'
reports that the applicant had 'touched another child in the neighbourhood.'
allegations that the applicant had replied to his daughter when asked why he was scratching his crotch area that he had a 'boner like a stiff.'
the applicant's daughter had been taken into foster care in 2008.
that the applicant has been interviewed by police in 1998 in relation to an assault on a child in a swimming pool.
In recommending that a bar be imposed on the applicant, the report noted that:
whilst it is acknowledged the charge against the applicant did not proceed to conviction, to date the applicant has demonstrated limited insight into the harm experienced by his daughter, the inappropriate parent/child relationship portrayed, factors in relation to his current lifestyle or any other information that would service to mitigate the identified risk.
[5]
CDD
CDD has worked in general maintenance in schools and now wishes to open a repair business. CDD denies ever having sexually assaulted his daughter.
In his affidavit, he states that as a baby and young child, his daughter suffered from an eczema-like skin rash on her thighs, buttocks and crotch that would sometimes extend to her stomach. On occasions it was so bad it would bleed. On medical advice, CDD would use Elocon cream to treat it and use bicarbonate of soda in his daughter's bath. It is his view that the rash developed because his daughter's nappies weren't being changed frequently enough and because her mother was giving her orange juice, to which his daughter had a reaction. After he would apply the cream, the rash would initially turn bright red.
His then partner, who worked as a nursing assistant, would help him to treat his daughter's rash.
He agreed that his daughter had told him that she had fallen over and 'cut her ginny.'
In 2007, his daughter told him that she had been sexually abused by her mother's husband. After CDD reported this to the Department of Community Services ('DOCS'), his daughter was placed into foster care and did not have contact with CDD. In 2012, CDD was granted supervised contact visits with his daughter.
He agreed that he had been questioned by police in 1998 in relation to an assault on a child in a swimming pool in the south coast of NSW. The applicant denied his involvement, was never charged and has attached a register mail receipt as proof that he had been in Sydney on the day in question.
He agreed that he had once sent flowers to his daughter's school. He told the Tribunal that at the end of an access visit he had with his daughter, she had told him that she wanted to kill herself, that she had no friends at school, that her mother, her stepfather and her brother thought she was useless. The applicant told the Tribunal that the conversation made him feel numb. He explained why he decided to send her flowers:
I wasn't allowed to ring her mum's place. I needed to cheer her up so I sent her flowers. I couldn't send them to her house, so I sent them to the school. I asked the school's permission…[I spoke to the office girl]. It was a total success. It impressed all the kids. It impressed the teacher…I did nothing wrong but to be a dad.. I wasn't allowed to send them to her mum's house: she would have chucked them out. [She] chucked them out anyway. I was really worried about her. I sent her a card. The only way to do it was with the flowers. The card said Darling you are the most wonderful child. I complimented her to lift her spirits.
He agreed that, in retrospect, he should have told his daughter's teacher that his daughter had told him she wanted to kill herself. If a child were to disclose suicidal thoughts to him now, he told the Tribunal that he would get in touch with someone. He suggested going straight to the Minister of Community Services, or if it were a child in his musical society, he told the Tribunal that he would tell the head of the musical society.
In oral evidence before the Tribunal, the applicant denied ever buying 'French knickers' for his daughter. He agreed that his daughter would sometimes put make up and nail polish on and that often she would play dress-ups with a female friend of the applicant.
He agreed that he has previously bought bikini swimming costumes for his daughter. He denied ever saying he said 'he had a boner like a stiff' in his daughter's presence. He denied that his daughter had ever been scared: rather it had been her stepfather she feared. He clarified that his daughter would call her stepfather 'Phil' when she was with the applicant and 'Dad' when she was with her mother.
[6]
CDD's former partner
CDD's former partner works in a hospital as a nursing assistant. In an affidavit sworn in December 2003, she stated that:
For the period of around three and a half years ending June 2002 I regularly went with CDD to collect or return [his daughter] on contact days. I was with CDD [and his daughter] during most of the contact periods. I was aware that [CDD's daughter] had a skin condition and that she had a rash on the area of her vagina and her buttocks. I saw the cream which CDD had to apply to her and I observed CDD apply the cream on many occasions and on some occasions I applied the cream myself. When she had a rash around her vulva area I say that the skin was often extremely red but we found that an old remedy - bicarbonate of soda in her bath - it would clear up quickly. Invariably when CDD got [his daughter] for contact her rash would be in a very bad condition but after the bath treatment with the carb soda she would be returned home in a much improved state…I never once was aware that [his daughter] had any blood in the area of her vagina and I say that as I helped CDD and did all of his washing including the washing of [his daughter's clothes - if there had been any blood on her undies or sheets, I would have seen it and I say that I never saw any.
The respondent did not require the applicant's former partner for cross-examination.
[7]
The applicant's daughter
In July 2002, when she was five years old, the applicant's daughter was interviewed by a DOCS caseworker.
Part of the transcript of the interview, from the point of view of the DOCS worker, reads as follows:
I said "So did you talk to your mummy about daddy." She said, "Yes" I said "What did you tell her." She said "He was touching my ginny a long time ago, but he didn't mean to and then he massaged it but he didn't mean to it was an accident. Mummy said that's alright. Can you tell me what you are doing. I said "I am just getting something out of my folder. You told me dad touched you on your ginny. Can you tell me from this picture what part is your ginny." Body chart was used. Child put cross on leg. I said 'You have put a cross on your leg, is that your ginny." She said, "No he touched my leg," (points to her leg) then points to her vagina, "then touched my ginny then it gets sore and then it's bleeding. And he touched my bottom." Child put cross on bottom on body chart.
I said Can you tell me when this happened." She said, "He asked me is this a good job and I said yes." I said "Where did this happen." She said "At his house."…I said "How do you feel about seeing daddy." She said, "I like him the way he doesn't touch my ginny anymore and he doesn't touch my bottom anymore."
Also in July 2002, the applicant's daughter completed a police interview, part of which provides as follows:
Q Some ladies that you spoke to yesterday at the office told me that you hold them that your dad had touched you on the ginny?
A And the bum.
Q And the bum. Can you, can you talk to me about that? What does that mean that Dad touched you on the ginny and the bum?
A Well, he was massalage the ginny and bum and he accidentally touched the ginny….I was laying on his bed and he accidentally done it….I was wearing nothing…My dad pulled my pants down and he was massalage it on his bed.
Q Ok Did Dad say anything to you?
A I just said, "That's good, Dad."
Q What did it feel like?
A It felt like a big strong massage, like a big punch, he was punching it really hard and it hurt it.
Q Punching what?
A My bum.
Q And why was he punching your bum?
A Because he was trying to massage it and he didn't know how to
Q How come he was massaging?
A Didn't massage it, he just punched it.
Q OK, ok. That was your bottom and what about the ginny, what did that happen?
A He was trying to massage it and he did massage it.
Q Can I ask you, who told you that it was an accident that Dad was…
A Daddy.
Q Daddy told you he touched you accidentally. And who, who told you it was a massage?
A Daddy…He accidentally pushed it and it hurted and I cried and he said, "That's all right,' and I said, "No, it's not," and he just went, he put me in my bedroom and I cried….When he was touching my ginny when he pushed it, it was bleeding in my room and I told my dad and he said, "I'll punch it if it gets bleeding more."…It felt really sore when he touched it.
Q Do you know where the blood was coming from?
A From inside it….I feeled the blood from, coming out from my, my head down to here and down here and in out the blood.
In a statutory declaration dated 9 October 2015 when she was eighteen years old, the applicant's daughter declared that her father had never touched her inappropriately or in a sexual way.
According to her declaration:
I remember everything from when I was a child and I can remember when and why these false allegations against my father started. My dad has never hurt me in any way, he never would. It's simply the type of man he is…All my dad did back then was put some soothing cream on my rash which I had quite often and on this occasion the cream made it worse and it stung and turned red raw. Mum would always ask if daddy was touching my ginny (vagina). So when I got home to mum, I told her that daddy touched my ginny and it bled because it had turned so red. I was only 5 years old and didn't realise what I had said….I don't want my mum to get in trouble but I feel that she over reacted and led me to believe that my dad had touched me inappropriately and when I was questioned back then about what had happened that I was just saying what mum had told me to say. Finally after being away from mum and her influence, I got my own mind and realised what really took place..Please believe me when I say that my dad would not, could never and did not ever do anything inappropriate with me ever.
In a handwritten letter dated 15 January 2014, the applicant's daughter describes how as a ten-year-old girl, she told her father (the applicant) that she had been sexually assaulted by her stepfather, Phil, for a number of years. After her father notified the Department of Family and Community Services (previously the Department of Community Services), his daughter was interviewed by the Joint Investigation Response Team (JIRT) who asked her questions both about her stepfather and her father. In her letter the applicant's daughter seek to clarify the situation at the time:
The point of this letter is I was too young to go to court back then and stick up for myself and even years later I still didn't want to go, I didn't want to see Phil. But that gave people the opportunity to put words into my mouth and speak for me in court words I never said. Like for example that I was 'scared of my dad.' That's complete crap. I never said I was scared of my father ever. I said I was scared of Phil, I was scared to go home and see him as on more than one occasions I was left alone with him. I am positive they have turned what I have told them about Phil and made it about my dad. I have never and will never be scared of my father he has never hurt me, never lain a finger on me he has never even smacked me. The only thing he has done is love me and I want and need people to realise this. I loved and adored dad, I still do, he's my dad.
In a letter dated 22 April 2015, the applicant's daughter writes about the allegations about her father:
I have a very clear memory of one day me being up with dad, staying with him and me being in so much pain from a rash that I always had. The rash was so bad, I was literally red raw. And I remember the pain, clear as day and I was in agony. I couldn't stop crying. So dad didn't know what to do except put cream on my rash. I think the cream he used was sorbolene, it didn't help though. It made it sting even more. I was crying and said daddy, daddy, I'm bleeding as I saw how red the rash had gotten.
After that it slowly went away. But when dad dropped me back off to mum, I told her that daddy touched me and made me bleed as she would always ask if he ever touched me. And as soon as that came out of my mouth, boy did hell [break] loose. I was only little I had no idea what I had said and what I had caused.
In relation to the JIRT interview in 2007, the applicant's daughter explains her answers in a statement dated 21 October 2015:
The two ladies asked me questions about my step-dad. But then they started asking questions about my Dad. When I answered questions about my Dad, I was just repeating what my Mum had told me to say. I was frightened to upset Mum, if I disagreed with what she was saying…It really wasn't until I was about 17 years old that I realised that I have to start standing up for myself when it comes to my Mum. I have to have my own say and my own mind on things. I am now telling the truth about what really happened when I was a kid.
The respondent did not require the applicant's daughter for cross-examination.
[8]
Medical reports
In a statement dated 20 February 2003, the medical practitioner, Dr Rothe, stated that he had examined the applicant's daughter in May 1999 in the company of the child's mother in relation to a rash on the child's body. Dr Rothe formed the view that the rash was consistent with the diagnosis of nappy rash.
The medical practitioner, Dr Goldberg, examined the applicant's daughter in July 2002. His notes state as follows:
Examination reveals a bright, bossy, well-groomed child of state age, with no physical abnormalities detected but with almost no hymenal remnants - just a very thin, smooth, symmetrical ring of tissue surrounding an introitus of 5mm and 3mm, with vaginal mucosa easily seen beyond.
In committal proceedings against the applicant in 2003, Dr Goldberg stated that he was of the opinion that the daughter's lack of hymen was unlikely to be a case of the congenital condition of attenuated hymen. He is of the view that it was very likely to have been caused by sexual assault. He gave evidence that it would take months or years of repeated vaginal penetration to wear away a hymen. In relation to dermatitis, he said that it would be very unusual for the skin to be so badly inflamed that it bleeds.
The medical practitioner, Dr Simpson, examined the applicant's daughter in April 2002. Dr Simpson's findings were as follows:
I sat [the child] on the examination couch and she spread her legs. I parted her labia and saw what I thought was a hymen and in tact. I saw…an unbroken ring of tissue around the outside of the vagina with a central hole measuring approximately one third of the diameter of the hymen. There was an absence of redness around the vaginal area and her bottom…I thought that what I saw was in fact an intact hymen although I wasn't certain then and I'm not certain now.
In committal proceedings against the applicant in 2003, Dr Simpson stated that when she examined the applicant's daughter she did not observe any injuries to the child's genital area, and confirmed that she had written in her notes 'nothing abnormal detected' in respect of her examination of the child's hymen.
In a report dated 6 March 2003, Associate Professor David Wells, from the Victorian Institute of Forensic Medicine, provides an opinion in relation to the differing views of Dr Simpson and Dr Goldberg. He finds little evidence to support the comments made by Dr Goldberg in which he refines the episodes of sexual assault to occurring at least ten days prior to the examination and the earliest occasion being several months earlier. He also finds little evidence to support the comments of Dr Goldberg that his findings are indicative of repeated sexual assault.
In particular, Associate Professor Wells advises as follows:
There is no consensus regarding the interpretation of hymenal measurements in this setting. The orifice diameter may vary considerably depending on the age of the child, the position in which the child is examined, the degree of relaxation and the amount of traction used on the labia during the examination procedure. Hence measurements should not be used as a determinant or a criteria of sexual abuse.
[9]
Dr Chris Rikard-Bell
In a medico-legal report for the Family Court of Australia dated 17 May 2004, Dr Rikard-Bell, Child, Adult and Family Psychiatrist, expressed the following view in relation to the allegations of sexual abuse by the applicant against his daughter:
I formed the view that while it was difficult to determine whether any sexualised contact had been made, at worst, it would seem that this could have happened on one occasion and may have occurred in the context of applying cream for a vaginal infection. The child did not appear to be traumatized by any incident with her father. I formed the view that the child was much more affected by the animosity expressed between the parents. I do not recommend that contact be supervised because I regard the risk of sexual abuse occurring in the future as low.
Subsequent Family Court orders dated 31 August 2004 gave the applicant day contact with his daughter until March 2005, and overnight contact from March 2005 to increase to each alternative weekend and half of school holidays from the end of April 2005.
[10]
Dr Steven Dawson
In his professional reference dated 4 February 2014, the clinical psychologist, Dr Steven Dawson offers the following opinion in relation to the applicant:
My understanding is there has never been any proven inappropriate behaviour by [the applicant] towards his daughter or any other child, merely conflict with his ex-wife and allegations arising out of their separation.. In my view there is no 'behaviour' to correct in relation to the relevant record but [the applicant] has needed ongoing support in coping with past allegations and related distress of very limited contact with his daughter along with the effects of sustained sense of abuse from Family Services.
[11]
References
A series of references contained on file attest to the applicant's good character and his care towards his daughter. None of the referees had any concerns in relation to the applicant working with children, including their own children. None of the referees were required for cross-examination.
[12]
FINDINGS AND REASONS
The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of s27 of the Act it appears appropriate to have regard to both s30 (1) and s15 (4) considerations. That would fulfil the requirements of both sections, taking into account the nature of the administrative review.
The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.
[13]
The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar
The matter that that caused an assessment and the refusal of the clearance is the charge of aggravated sexual assault of the applicant's daughter. The charge is a serious one. The applicant has always denied the allegation.
The applicant has given evidence that as a baby and young child, his daughter suffered from a severe rash which would leave her skin red and sometimes blistering, from her stomach down to her thighs.
That the child suffered from this skin condition at the relevant time has not been disputed by the respondent and is supported by the evidence of:
the applicant's former partner, who prepared a statement for these proceedings but who was not required by the respondent for cross-examination;
the applicant's now nineteen-year-old daughter, who also prepared a statement for these proceedings but who was not required by the respondent for cross-examination;
Dr Rothe, who had examined the applicant's daughter in the presence of her mother in 1999.
It is the uncontested evidence of the applicant, his former partner and his daughter that the applicant would apply cream to his daughter's body to treat the nappy rash. It is the uncontested evidence that the rash itself was sometimes extremely inflamed. It is the uncontested evidence of the applicant's daughter that she had told her father that she was bleeding when she saw how red the rash had become.
According to the statements of the child's mother and grandmother, the applicant's daughter told that that her father had 'touched her ginny and made it bleed.' Although the medical evidence as to the presence or absence of the child's hymen is inconclusive, it is the opinion of Associate Professor Wells that hymenal measurements should not be used as a determinant or a criteria of sexual abuse. For this reason, the Tribunal has placed little weight on the evidence in relation to the child's hymenal measurements.
The applicant has submitted that the child's mother may have coached her in relation to the allegations of sexual assault. It is noteworthy that according to file notes contained in the respondent's materials, the sexual assault charges did not proceed because of medical evidence being contradictory and also because the story was changed by the applicant's daughter. The file note also refers to concerns that the child's evidence may have been tainted by her mother and grandmother.
In a care plan for the applicant's daughter dated 22 May 2008, there is reference to the applicant's daughter stating that she was scared of 'her Dad'. In her recent uncontested statement, she denies ever having been in fear of her father, instead clarifying that she was scared of her stepfather, Phil, who she also called Dad when she was with her mother. On the basis of this evidence, the Tribunal cannot be satisfied on the balance of probabilities that the applicant's daughter was ever in fear of the applicant.
In relation to the complaint that the applicant's daughter had displayed 'sexualised behaviour' in 2004, the Tribunal cannot be comfortably satisfied that this behaviour had anything to do with the influence of the applicant and so has given this complaint little weight in its determination. This is particularly in light of evidence contained in the respondent's documents that whilst in the care of her mother, the applicant's daughter had been exposed to people who had experienced sexual abuse.
In relation to the complaint by the child's mother that the daughter had returned from a visit with the applicant wearing nail polish, make up and 'French knickers', the Tribunal accepts the evidence of the applicant that he has never bought her daughter French knickers. The Tribunal accepts the applicant's evidence that his daughter would dress-up, and wear make-up and nail polish to perform mock fashion parades in dress-up clothes. The DVD produced by the applicant is evidence of this.
There is no evidence before the Tribunal to in any way substantiate the complain that 'the applicant had touched another child in the neighbourhood.' Accordingly, the Tribunal has placed no weight on the allegation.
There is no evidence that the applicant was implicated in the assault on a child in a swimming pool in 1998. The Tribunal has therefore placed no weight on the allegation.
There was no evidence called by the respondent to substantiate the claim that the applicant had told his daughter that he was scratching his crotch area because he had a 'boner like a stiff.' On the material before it, the Tribunal cannot be reasonably satisfied that this conversation ever took place and so has placed little weight on this allegation.
In relation to the applicant's daughter being taking into foster care, the evidence is that this was because she had disclosed that her stepfather had sexually assaulted her and had nothing to do with the applicant.
In relation to the appropriateness of the applicant sending his daughter flowers to school, the Tribunal accepts the evidence of the applicant that he was worried about his daughter and wanted to be able to get a message to her quickly. Sending the flowers to school was necessary because he knew the child's mother would be upset if he were to send the flowers to her home. The Tribunal accepts the applicant's evidence that he contacted the school to ensure this action was appropriate. The Tribunal does not accept the respondent's submission that the flowers were a form of grooming by the applicant. On the basis of the applicant's evidence that he had sent the flowers to comfort his daughter following her disclosure that she wished to kill herself, the Tribunal accepts the respondent's submissions that a more appropriate response would have been to discuss his concerns for his daughter's well-being with those involved in her care. In considering this concern, the Tribunal gives weight to the applicant's evidence at hearing that were he now to have concerns in relation to a child's well-being, he would behave differently: he would advise the 'Minister for Community Services' or where it related to a child in the musical society, to the leader of the society.
In considering this case, the Tribunal has been mindful of the seriousness of the sexual assault of a child. In this case, however, the Tribunal cannot make a finding of fact that the applicant sexually assaulted his daughter as alleged in the material relied upon by the respondent. The deficiencies in the evidence as presented to the Tribunal were such that the Tribunal could not be comfortably satisfied that the applicant has sexually assaulted his daughter.
Although the Tribunal cannot find that the applicant was guilty of this conduct, which triggered the risk assessment, the Tribunal has addressed the remaining section 30 factors, as is required under the Act.
[14]
The period of time since those offences or matters occurred and the conduct of the person since they occurred
In 2002, the applicant was charged with the sexual assault of his then five-year-old daughter. The prosecution did not proceed with the charge. The applicant has not been charged or convicted of any offences since then.
[15]
The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim
At the time of the occurrence of the events said to trigger the risk assessment in this case, the applicant's daughter was five years old. She was vulnerable in light of her age and her relationship to the applicant.
[16]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person
The age difference was approximately 38 years. The child the applicant was alleged to have assaulted was his daughter.
[17]
Whether the person knew, or could reasonably have known that the victim was a child
The child the applicant was alleged to have sexually assaulted is his daughter. The applicant has always been aware of his daughter's age.
[18]
The person's present age.
The applicant is 56 years old.
[19]
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred
In 1979, the applicant was convicted of one count of dangerous driving and one count of negligent driving. In 1983, he was convicted of possessing and smoking Indian hemp. He has not been convicted of any offences since then, although, between 1997 and 2004, when he was involved in a series of custody disputes, he was the subject of apprehended violence orders in respect of his ex-wife and her mother. The applicant has no convictions in respect of any personal violence offences.
[20]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
As set out above, the Tribunal cannot be comfortably satisfied that the applicant has ever sexually assaulted his daughter.
Relevant findings of the child, adult and family psychiatrist, Dr Chris Rikard-Bell, in his report dated 17 May 2004 are that
the father does not have other indicators that might suggest he may be more likely to sexually abuse children such as a previous history of antisocial behaviour, drug or alcohol abuse or sexual abuse of other children.
Although there is no evidence before the Tribunal to contradict Dr Rikard-Bell's findings, the Tribunal notes that the report is now twelve years old. For this reason, the Tribunal has given the report only limited weight.
The Tribunal has considered the concerns of the Children's Guardian that the applicant has a conscious lack of candour in dealing with authority and a lack of integrity in his dealings with authority charged with the responsibility for the safety of children.
In particular, the Children's Guardian notes that the applicant was not candid in relation to his unauthorised telephone contact with his daughter while she was in foster care. The Tribunal accepts that the applicant should have adhered to the correct procedures in relation to telephone contact with his daughter but notes the concession by the Children's Guardian that, under the circumstances, the applicant's conduct as a father was understandable. On this basis, the Tribunal has given little weight to the unauthorised telephone contact with his daughter in considering whether he poses a real and appreciable risk to children.
The Children's Guardian has similarly expressed its concerns that the applicant has been lacking in integrity in his dealings with authority charged with the responsibility for the safety of children. The Tribunal accepts that the applicant has long had a very acrimonious relationship with his ex-wife and that his frustration has, at times, been levelled at the Department of Family Services. Despite this, the applicant contacted the Department of Family Services as soon as his daughter disclosed that she had been assaulted by her stepfather. This, the Tribunal finds, shows that the applicant has been prepared to seek the assistance of the authorities when required. In his oral evidence before the Tribunal, the applicant acknowledged the importance of seeking appropriate assistance and conceded that this is something he has not always done. The Tribunal accepts that the applicant now has some additional insight into the need to do this.
The Tribunal has considered the concerns of the Children's Guardian that the applicant behaved inappropriately in sending his daughter flowers and buying her French knickers. As set out above, on the evidence before it, the Tribunal cannot be satisfied that the applicant ever bought his daughter French knickers and has therefore given no weight to this suggestion. On the basis of the evidence provided by the applicant, the Tribunal accepts that his main purpose in sending his daughter flowers was so that he would be able to get a message of support to her quickly. Whilst the Tribunal accepts that the applicant should have spoken to his daughter's carers in relation to his concerns about her emotional well-being, the Tribunal is not satisfied that he displayed inappropriate behaviour by sending her flowers.
Having considered all the evidence before it, the Tribunal is not satisfied that there is a likelihood of the applicant engaging in any sexual misconduct or any offending behaviour.
[21]
Any other matters that the Children's Guardian considers necessary
The Tribunal has considered those additional matters raised by the respondent, namely the absence of a recent psychological report specifically assessing the applicant's risk to children; the applicant's lack of response in the respondent's initial stage of investigation; the appropriateness of the applicant sending flowers to his daughter; the allegation that he had bought her 'French knickers' and that he had unauthorised phone contact with his daughter while she was in foster care.
The Tribunal does not make any adverse findings in relation to the applicant's lack of response to the respondent's initial stage of investigation as it would appear that the applicant did not have legal representation at the time. It would appear that legal aid was only granted to the applicant on 12 October 2015.
The applicant was cross-examined in relation to his decision to send flowers to his daughter's school. On the basis of his evidence, the Tribunal is satisfied that there was nothing inappropriate about this decision: the Tribunal accepts that the applicant checked with the school prior to arranging the delivery which, he believed, would be the quickest way to get a message of encouragement to his daughter about whose welfare he was concerned. The Tribunal accepts that the child's mother actively discouraged the applicant from contacting the child at home.
On the evidence before it, the Tribunal is not satisfied that the applicant ever bought 'French knickers' for his daughter. Rather the Tribunal accepts that the child had dress ups clothes provided by a female friend of the applicant and that any make up or nail polish worn by the child was in the context of age appropriate dress-up play.
The Tribunal is not satisfied that any instances of telephone contact between the applicant and his daughter while she was in foster care provide evidence that the applicant poses a real and appreciable risk to children.
[22]
Any information given by the applicant in, or in relation to, the application
In determining that the Tribunal cannot be comfortably satisfied that the applicant sexually assaulted his daughter or has behaved in a sexually inappropriate way towards her, the Tribunal has considered the applicant's evidence together with that of the applicant's daughter, the applicant's previous partner and his referees.
[23]
Conclusion
In this case, a working with children check clearance must be granted unless the Tribunal is satisfied that the person poses a risk to the safety of children.
On the basis of all the evidence before it, as considered above, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a working with children check clearance.
Order
The orders of the Tribunal are that:
the decision of the Children's Guardian dated 29 July 2015 to refuse to grant the applicant a working with children check clearance is set aside; and
in substitution the respondent is to grant the applicant a working with children check clearance.
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: 05 May 2016