CFY v Children's Guardian

Background

1. In 1996, the applicant's eldest daughter ('the eldest daughter') who was then seven years old, allegedly told a third party that the applicant had once photographed her naked.
2. In 2007, the applicant's second eldest daughter ('the second daughter') made a report to police that he had sexually assaulted her in 2005. The allegations were that while crayfishing, the applicant had touched her breasts and vagina, that he would touch her in a similar way every day, would watch her in the shower and once inserted his finger into her vagina when she was preparing dinner. The evidence before the Tribunal discloses that there was no police investigation of the complaints, the applicant was not interviewed and no criminal charges were laid. The allegations were set out in the COPS entry record that was sent, in 2013 anonymously, to the school where the applicant was working.
3. In 2013, the applicant's youngest daughter ('the youngest daughter') gave a statement to police alleging that the applicant had come into the bathroom when she in the shower and that he had thrown her older brother against the wall.
4. Other allegations that the applicant had been physically abusive towards his children were also made, among them that the applicant had bitten his eldest daughter and had slapped and kicked the children.
5. In 2013, the Department of Education and Communities ("DEC") began an investigation into the allegations of physical and sexual abuse that had been made against the applicant. In the course of this investigation, the applicant's youngest daughter recanted her police statement while the applicant's eldest daughter, second daughter and second son refused to be interviewed. At the conclusion of the investigation in 2014, whilst many of the allegations of physical abuse were sustained, those alleging sexual abuse were not.
6. Much documentation was presented to the Tribunal in the course of these proceedings. It included documents provided by the Children's Guardian in relation to the allegations made against the applicant in addition to his criminal history and work record, including work place references. There are no statements on file by the applicant's eldest daughter, second daughter or second son. The applicant provided affidavits from his wife, his eldest son, his second daughter and himself. A forensic psychologist report for the applicant was prepared by the forensic psychologist, Ms Caroline Hare.

Risk Assessment report

1. In February 2014, the applicant applied for a working with children check clearance. In light of the 2013 investigation undertaken by DEC, the Children's Guardian conducted a risk assessment for the applicant.
2. The risk assessment report recommended that the applicant be refused a working with children check clearance for the following reasons:

• the applicant had sustained findings of misconduct involving unnecessary physical contact with his biological children, dating from 1994 to 2010;
• allegations of sexual abuse against his daughter had also been made which, whilst not sustained by the investigation by DEC, were very serious;
• by directing the applicant not 'to come into physical contact with students unless there is an immediate threat to students' safety and wellbeing, DEC had implied that the applicant poses a risk to children;
• reports had been made concerning the applicant physically abusing his children as recently as 2013; and
• the applicant has failed to demonstrate how his risk and conduct have been remediated.

CFY

1. In support of his application for review, the applicant provided an affidavit and gave oral evidence to the Tribunal.
2. He agreed that he had previously used more force in disciplining his children than he should have. He explained that his children had often been difficult to control and that his eldest daughter, who has a diagnosis of borderline personality disorder, would often behave violently towards the other children. The applicant agreed that he would yell at the children when they misbehaved and that when they were violent towards one another, he would grab them and drag them away and smack them, sometimes using objects such as a belt or a cane.
3. After his youngest son was born in 2005, the applicant sought help from caseworkers on how to manage the children. As a result of this, he 'started using methods like making them have time in their rooms, and confiscating items such as their TV if the kids played up.'
4. The applicant stated that he has really changed the way his disciplines his youngest child, who is now 11 years old: If he does something wrong I'll make him go to his room, take his TV or Xbox, not let him play sport, things like that… Occasionally I will yell at him, He's a much calmer kid than the others were.
5. He denied having ever sexually abused his second daughter or any other person. He confirmed that when they were quite young, both his eldest daughter and his second daughter had been sexually abused by an acquaintance who had subsequently been charged and was taken to court.
6. At the time his second daughter made the allegations against him, she had been abusing drugs and alcohol. To try to stop this, she had been sent to live with her aunt and uncle. When they proved unable to control her, the applicant and his wife had ordered her home. According to the applicant, his second daughter was not keen to return home because liked being with her aunt and uncle where there were no rules. The allegations were made after her forced return home. This, the applicant told the Tribunal, is all he can think of to explain why she would make such an allegation against him.
7. The applicant denied having behaved inappropriately in relation to his youngest daughter, who alleged that the applicant would enter the bathroom when she was in the shower and go into her room while she was getting dressed. She has since recanted this allegation.
8. The children of the applicant's eldest daughter have been removed by the Department of Family and Community Services and placed in foster care. Because the applicant and his wife had supported the removal of the children, who had been subjected to violence by their father and his family, the eldest daughter had, according to the applicant 'started saying all sorts of things about us around town in an attempt to discredit [her mother] and me, so did the children's father and his family.'
9. In evidence before the Tribunal, the applicant denied taking a naked photograph of his eldest daughter when she was seven years old.
10. He denied ever touching his second daughter in a sexually inappropriate way or watching her in the shower. He agreed that he would supervise his children in the bathroom but would stop when they started to mature.
11. In relation to the allegations of physical assault against the children, he told the Tribunal that 'anything I've done, I've owned up to.' He agreed that he had bitten his eldest daughter when she was young to teach her to stop biting other people - a method he told the Tribunal had been successful. This was around the time that AIDS was becoming known and the applicant was fearful that she would contract AIDS if she continued biting people.
12. He agreed that he would discipline the children, on a fortnightly or monthly basis, by hitting them with a slipper or a belt or a cane. He denied kicking them but agreed that he would shuffle them up to their room. He agreed that he would put chilli on his children's tongue to punish them for swearing and would put tobacco on their tongue if they were caught smoking. He agreed that he would slap the children but denied punching them or grabbing them by the hair.
13. He agreed that he had been physically violent towards his wife 20 years ago and that he is still haunted by his behaviour and ashamed of it. He changed his behaviour when his wife threatened to leave him and has since witnessed the effects of domestic violence on the children and grandchildren in his extended family.
14. He told the Tribunal that he is different to his youngest son than how he was with the older children and that he only ever slaps him as a last resort. Instead, he will confine him to his room or confiscate the television.
15. The applicant described a close relationship with his grandchildren. He finds caring for his grandchildren less stressful than caring for his own children when they were young. This is because his grandchildren are more 'mellow', because he has learnt to deal with things better and because 'there is nowhere near the stress levels we used to have.' If he does become stressed, he takes himself out for a drive or a walk.
16. The applicant told the Tribunal about his work as a general assistant in a local school where many of the children have behavioural problems. Although his work includes general groundwork, he also coaches the children and will assist teachers in dealing with children experiencing behavioural issues.
17. He said that he might drink alcohol once a month and that he hasn't smoked cannabis for many years.
18. Although he is in regular contact with her, he has not discussed the allegations of sexual abuse with his second daughter because of her vulnerability and history of self-harming, including previous suicide attempts. He told the Tribunal that he was worried about 'setting her back just as she is getting her life back on track. Counsel for the applicant confirmed that because of her history of self-harm, the applicant's second daughter was seen to be too vulnerable to be requested to make a statement.

The applicant's youngest daughter

1. The applicant's youngest daughter told the Tribunal that she lives with her parents and her infant daughter. She gave evidence that she had lied in her statement to police when she said that her father had done things like coming into the bathroom when she was in the shower. She told the Tribunal that she had also lied when she said her father had hit one of her brothers and 'chucked him into the wall.' At the time she had made the statement to police, she had been living with her cousins who, she said, had previously tried to force her to give a statement make allegations against her parents. When they continued to press her, she agreed to make the statement. Her cousins forced her to do it by confiscating her cash card and telling her that they wouldn't allow her to remain living with them. She denied telling the Department of Family and Community Services ('FACS') that the applicant had hit her and her siblings.

The applicant's wife

1. In her affidavit, the applicant's wife agreed that her husband had been violent towards her and the children early on in their relationship. This changed in 2005 when their youngest son was only a few weeks old and the applicant's wife left him, telling him that she wouldn't return unless he changed his behaviour.
2. According to the applicant's wife: [his] behaviour changed after this..if [he] felt like he was getting angry he would remove himself from the situation. He'd go off to his shed or go for a drive, just take himself away so he wouldn't be violent towards us and he would stay away until he calmed down..I used to cop it from [our eldest daughter] still, She was really violent towards the other children and me…I had to ring FACS a few times and ask for help because I couldn't control her.
3. In her affidavit, she stated that with their youngest child, the applicant changed from using physical punishment to control the children to relying on other methods like sending their son to his room or taking away his TV or Xbox.
4. The applicant's wife told the Tribunal that she didn't believe there was any truth to the allegations made by her second daughter that the applicant had sexually assaulted her in 2005. At that time, she herself had been in the final stages of a difficult pregnancy and for fear of something going wrong, the applicant would stay with her at all times until she was admitted to hospital to be monitored. She thought it unlikely that the applicant would have gone crayfishing with the children during this time.
5. She told the Tribunal that she doesn't believe that the applicant sexually abused their youngest daughter and believes that she was forced to make the statement by her cousins because they don't like the applicant.
6. According to the applicant's wife: I have no doubt that [he] didn't sexually assault [our second daughter]. I don't think he could do anything like that to any kid. If I had any doubt at all, there's no way I'd support him…To this day, with all of the kids, if something happens they call CFY. Even [the second oldest daughter], if something goes wrong, they call CFY first.

The applicant's eldest son

1. In an affidavit prepared for these proceedings, the applicant's eldest son, who is now 24 years old, described his upbringing in the following terms: When I was younger Dad wasn't at home a lot, because he worked all the time When he was home he was ok unless we played up, and then we would get a smack. My older sister…was violent as hell when we were kids. She used to hit us and Mum. She was psychotic. When she was like this, Dad would hit her. Dad's different with my younger brother. He has a more up-to-date attitude to parenting him. He's much calmer with [him] and if [he] does something wrong he'll talk to him about it rather than hit him… I am aware of the allegations [my sister] made that Dad sexually abused her..I don't believe that this happened…If I thought Dad had done anything wrong, there's no way I would still have a relationship with him.,,I have a daughter..and if I thought Dad had done anything wrong there's no way I'd let him see her.

Ms Hare

1. The forensic psychologist, Ms Hare, prepared a forensic psychological risk assessment report for the applicant and gave evidence by telephone at these proceedings.
2. In her report, Ms Hare discussed the applicant's earlier use of physical force to discipline his older children and his advice that, over the years, he had become more effective in implementing alternative forms of discipline, particularly with his youngest son. She noted that the last substantiated claim of excess physical conduct by the applicant occurred in 2007. In her report, she states that: from our discussions and [CFY's] reflections, I formed the opinion that he holds changed attitudes regarding managing the behaviour of his children, and I did not observe evidence to suggest that he continues to adhere to his previous beliefs regarding the benefit of physical disciplining.
3. In oral evidence before the Tribunal, Ms Hare noted that whilst the applicant had admitted perpetrating domestic violence against his wife early in their relationship, there had been no further incidents over the past 20 years. Ms Hare accepts that the applicant now sees that his earlier actions contributed to his older children's challenging behaviours and that he has shown a good deal of insight into his previous behaviour. She also noted that his avoidance of alcohol has contributed to these changes in attitude as has his development of more effective strategies to deal with his stress and anger which include taking time out by going for a walk or having a cigarette.
4. Based on his current psychosocial functioning and her consideration of how he will manage in the future, it is Ms Hare's view that the applicant poses a low risk of sexual, physical or emotional harm to children. In her report, Ms Hare notes that: Low is the lowest risk category available on the HCR-20 V3 risk protocol that I utilised, and this rating indicates my opinion that CFY does not need any intervention or management to reduce his risk, which I view as 'routine.' It is my opinion that if CFY were to present a risk to children in the future, this would most likely be risk of psychological harm as a result of him raising his voice in anger. This type of behaviour is not uncommon in the community, and any risk to children would be minimal.
5. In oral evidence before the Tribunal, Ms Hare highlighted those aspects of the applicant's circumstances that, in addition to the absence of corroborating evidence, supported the applicant's evidence that he had not sexually assaulted his daughters. These included the applicant's open and forthright manner and the fact that he did not 'put a filter on' even when discussing things that placed him in a bad light. Testing confirmed that there was no evidence of the applicant minimising any aspect of his behaviour. Furthermore whilst the applicant accepted most of the conduct in relation to allegations of physical abuse, in the course of Ms Hare's psycho-sexual testing, the applicant did not endorse any sexual abuse or behaviour towards children

References

1. In a reference provided to the Children's Guardian, the principal of the school where the applicant has been working since 2008 describes him as a valued member of staff who has assisted in sports coaching at the school and has significantly assisted traumatised children at the school. In her reference, the principal advises that she has never witnessed any inappropriate behaviour by the applicant towards children, including her own; and that he has been working with FACS to support his grandchildren who have been taken into care. She reports that people who knew the applicant when he was younger say that he is a different man than in his younger days.
2. Two further references describe the applicant as hard-working and trustworthy, and a good role model for parents and children in his work as a sports coach to local children.

FINDINGS AND REASONS

1. The Tribunal "must consider" those factors set out in section 30 (1) of theChild Protection (Working with Children) Act in determining an application under Part 4 of the Act, which includes this application.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar -s30(1)(a)

1. The allegations of physical abuse by the applicant against his children are serious. He has admitted to a significant number of the allegations, including that he would discipline the children using a belt or a cane or a slipper and that he had bitten his eldest daughter to try to teach her not to bite.
2. The allegations of sexual abuse are also serious and include allegations of indecent assaults against his eldest and youngest daughters in addition to an allegation of sexual assault against his second daughter in 2005.
3. In light of the evidence of the youngest daughter that the allegations she made against her father were false; the unavailability of evidence from the eldest daughter and the second daughter to substantiate allegations that were not sustained in the investigation by the Department of Education and Community, and for which the applicant was never charged, it is his counsel's submission that no weight should be given to any of the allegations of sexual abuse.
4. The Children's Guardian is of the view that whilst this is not a case where the Tribunal could make a positive finding in relation to the sexual allegations, the fact that allegations were made by three of the applicant's daughters should be of concern to the Tribunal.
5. There is little evidence before the Tribunal to substantiate the allegations made the applicant's second daughter that the applicant sexually abused her and for the reasons that follow, the Tribunal cannot be comfortably satisfied that the sexual abuse took place at all:

• according to the relevant police event notes, the second daughter was unable to particularise her complaint that her father had entered the bathroom and looked at her breasts;
• no evidence was provided by the second daughter either to the Department of Education and Community, the Children's Guardian or the Tribunal to substantiate the complaints;
• evidence provided by the applicant's eldest son that casts a doubt on the second daughter's evidence that the applicant had sexually assaulted her while the family was crayfishing during the time her mother was in hospital waiting to give birth to the youngest son. It is the eldest son's evidence, as contained in his affidavit, that he could not remember going fishing with the applicant at all, and definitely not in the weeks leading up to the birth of his youngest brother; and that if he had gone fishing at all, the applicant would have taken all the children with him.
• the allegation that the applicant had sexually assaulted the second daughter while she was in the kitchen making dinner does not accord with the evidence that in such a large family, it would be difficult for this to have occurred without being noticed by another member of the family.

1. In light of the youngest daughter's evidence denying her earlier allegations, the Tribunal cannot be comfortably satisfied that the applicant ever behaved in a sexually inappropriate way towards her, particularly as the youngest daughter provided a credible explanation as to why she made the complaints in the first place, namely that she had been forced to do so by her cousins who had taken a dislike to the applicant and his wife for supporting the removal of their grandchildren into foster care. The fact that the timing of the complaint coincides with the commencement of proceedings to remove the grandchildren from their parents' care adds credibility to the youngest daughter's evidence to the Tribunal.
2. On the evidence before it, the Tribunal cannot be comfortably satisfied that in 1996, the applicant took a naked photograph of his eldest daughter who was then seven years old.
3. In reaching this conclusion, the Tribunal has taken into account the fact that:

• the eldest daughter, who is now an adult, has not provided any evidence to the Tribunal in support of the allegations;
• the initial complaint originated from a third party who did not provide any evidence to the Tribunal;
• in subsequent questioning of the eldest daughter by caseworkers in 1996, she told them that 'Daddy took a photo of me getting dressed.' When asked what she was wearing, she replied 'A skirt and a t-shirt.' Only when the questioner asked 'The other day you told [redacted] that you didn't have any clothes on, so I'm getting a bit confused, did you have clothes on or did you have nothing on', did the she then say 'I had nothing on.'
• the alleged photograph has never been located and the applicant has always denied the allegation.

1. In light of the youngest daughter's evidence that the allegation was false and in the absence of any further evidence to the contrary, the Tribunal cannot be comfortably satisfied that the applicant has ever thrown his second son 'against the wall.'
2. The Tribunal accepts that up until 2007, the applicant's household was marked by chaos in a family where the older children in particular displayed significant behavioural problems. The applicant himself was quick both to admit this and to admit that he had been violent towards his wife. On the evidence before it, both from the applicant and his wife, the Tribunal accepts that he has not been violent towards his wife for over 20 years now.
3. The Tribunal finds that for a long time, the level of violence meted out by the applicant to his children in the form of physical discipline was unacceptable. However, on the evidence before it, the Tribunal accepts that for close to a decade now, this form of physical discipline has stopped and that during this period, the applicant's household has been a very different place.

The period of time since those offences or matters occurred and the conduct of the person since they occurred -s30 (1)(b)

1. On the evidence before the Tribunal, reports of the applicant's inappropriate physical discipline and physical abuse of his children date from 1994 and continue until 2007. Further complaints were made after this although, on the available evidence, the Tribunal is satisfied that there was a significant gap in reports to the Department of Family and Community Services between 2007 and 2012. Although further complaints were made by the youngest daughter in 2013, she has since provided evidence to the Tribunal denying the truth of her statement.
2. The applicant has been employed in his current position since 2008. The principal at the school where the applicant is a general assistant describes him as a valued member of staff who, over the years, has assisted traumatised children at the school and helped with sports coaching.

Section 30(1)(c) The age of the person at the time the offences or matters occurred

1. The applicant was aged 26 at the time of the first allegation of physical abuse in 1994 and aged 45 at the time of the most recent allegation in 2013.

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-s30 (1)(d)

1. The children were between 5 and 17 years at the time of the various allegations of physical abuse. The applicant's second daughter was aged 14 at the time she was alleged to have been sexually abused by the applicant.
2. All the children were vulnerable in that they relied on the applicant, as their father, to ensure their safety and well-being.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person -s30 (1)(e)

1. The age difference between the applicant and the children who are the subject of the allegations is between 21 and 25 years.

Whether the person knew, or could reasonably have known that the victim was a child-s30 (1)(f)

1. The applicant knew the ages of the children.

The person's present age -s30 (1)(g)

1. The applicant is now 48 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred -s30 (1)(h)

1. The applicant's criminal record does not disclose any offence against a child or an adult. His adult criminal record includes a conviction for theft and cultivation of a prohibited plant. He has had no convictions since 1997.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition -s30 (1)(i)

1. For the reasons set out above, the Tribunal is not satisfied, on the evidence before it, that the applicant has ever sexually abused or exhibited sexually inappropriate behaviour towards his daughters, or any of his children. The Tribunal accepts that whilst, for many years, the physical discipline he inflicted on his children was unacceptable, the applicant has not done so for close to a decade now. Instead, he has developed techniques to manage stress and has learnt how to take time out rather than inflaming a stressful situation.
2. The Tribunal does not condone the physical discipline previously used by the applicant on his children and accepts the findings of Ms Hare that it was both excessive and as a result of the applicant's childhood experiences of living in a violent household.
3. The Tribunal accepts that over the past decade, the applicant has gained insight into the inappropriateness of his previous behaviour and that the steps he had taken to change have been wide-reaching and successful. The Tribunal is satisfied that the techniques adopted by the applicant would allow him to manage any future stressful situations that may arise, including if he and his wife were to have increased access to their young grandchildren.
4. The Tribunal accepts the evidence of the principal at the school where the applicant works that he is a valuable member of staff whose role extends beyond general maintenance to assisting teachers with the children and also to coaching the children in sporting endeavours.
5. For the reasons set out above and on the basis of all the evidence before it, the Tribunal is satisfied that there is little likelihood of the applicant engaging in physical violence towards his children or any other children.

Any information given by the applicant in, or in relation to, the application-s30 (1)(j)

1. The Tribunal has considered all evidence provided by the applicant.

Any other matters that the Children's Guardian considers necessary

1. It is the submission of the Children's Guardian that when considered as a whole, CFY's conduct amounts to a real and appreciable risk to children.
2. The Tribunal does not agree with this.
3. As discussed earlier, the Tribunal is not satisfied that the applicant has ever sexually abused any of his children. Whilst the Tribunal accepts that the applicant has previously displayed unacceptable physical violence towards his children, the Tribunal accepts that for close to a decade now, the applicant has gained insight into his previous behaviour and has changed his ways such that he is no longer physically violent towards his children.
4. The Tribunal has been assisted by the expert opinion of Ms Hare, whose qualifications as a forensic psychologist have not been questioned and who has assessed the applicant as presenting a low risk of sexual, physical or emotional harm to children, which is the lowest risk rating that can be applied on the HCR-20 V3 risk protocol.
5. In a case such as this, the Tribunal is mindful that its role is protective rather than punitive, namely that it is not the role of the Tribunal to punish the applicant for past behaviour but instead to assess whether, on the available evidence, an applicant poses a real and appreciable risk to children.
6. For the reasons set out above and on the basis of all the evidence before it, including those documents provided by the Children's Guardian, in addition to the opinion of the forensic psychologist, Ms Hare, the evidence of the applicant, his wife and his youngest daughter, the Tribunal is satisfied that the applicant does not pose such a risk to children.

Conclusion

1. In this case, a working with children check clearance must be granted to the applicant unless the Tribunal is satisfied that he poses a risk to the safety of children.
2. In all the circumstances, 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 1. The decision of the Children's Guardian dated 6 October 2015 to refuse the applicant's Working with Children Check clearance is set aside. 2. In substitution for that decision, the following decision is made: The applicant is granted 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

Amendments 26 July 2016 - Paragraph 62 anonymisation 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: 26 July 2016