DCZ v Children's Guardian

Legal Principles

1. Under s.23(1) of the Child Protection (Working with Children) Act 2012, the Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian is satisfied that the person poses a risk to the safety of children.
2. Subsection 27(1) permits a person who has been refused a working with children check clearance by the Children's Guardian to apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 within 28 days after notice of the decision was given to the person. Although the decision under review is dated 28 April 2017, the Application states that the Applicant was not notified until 8 May, and the Application was filed on 7 June 2017. The Respondent did not claim that the Application was made out of time.
3. As the Respondent submits, in determining an application for review, the Tribunal must decide what is the correct and preferable decision having regard to the material before it (Administrative Decisions Review Act, s.61(1)).
4. As the Respondent has correctly submitted:
5. Neither party bears an onus in an application for review under s.27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39] - [40].
6. The Tribunal has previously held that in an application under s.27, a clearance may not be granted subject to conditions: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [36]- [45]; BKV v Children's Guardian [2015] NSWCATAD 65; CDX v Children's Guardian [2016] NSWCATAD 17 at [36]. The issue is currently under further consideration by the Tribunal in the matter of CTE v Children's Guardian, in which a decision is due to be handed down on 2 February 2018. [4]
7. The scheme of the Act is protective and not punitive: Commission [5] for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. Further, "the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act": s.4. [6]
8. The Respondent referred the Tribunal to the definition of child and young person abuse contained in s 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and to the definition of abuse in relation to a child found in s 4 of the Family Law Act 1975 (Cth).

Background

1. Counsel for the Respondent has filed a useful chronology describing events that are uncontroversial and the Tribunal has had recourse to that document for the purpose of preparation of these reasons.
2. The Applicant was born on 22 November 1953.
3. The Applicant and his (now deceased) wife were married on 25 September 1982, although they had lived together since a date in 1976.
4. The Applicant and his late wife had two children, a son born on 13 September 1981 and a daughter who was born on 3 May 1985. The applicant's wife had a daughter by a previous relationship. She was born on 23 February 1970. She lived with the parties until a date in 1989.
5. The parties separated in April 1984 and reconciled in April 1985.
6. They separated again on 30 December 1985. That same day, the Applicant's wife attended at the Wollongong Local Court and laid an Information alleging that earlier in the day the Applicant had assaulted her daughter, the Applicant's stepdaughter.
7. The Applicant attended Court on 17 January 1986 and entered a plea of guilty. The Magistrate recorded a conviction and placed the Applicant on a recognizance under the provisions of s.558 of the Crimes Act 1900 (NSW) for a period of 12 months. It was a condition of the recognizance that the Applicant was not to approach or contact or accost his stepdaughter.
8. There was a subsequent reconciliation and a further separation in 1986.
9. On 28 November 1986 the Applicant's wife commenced proceedings against him in the Local Court at Wollongong, seeking orders for maintenance, custody, guardianship and restraining orders under the provisions of the Family Law Act 1975 (Cth).
10. On 1 December 1986 a notification was made to FACS that the Applicant had previously interfered with his stepdaughter and had sexually abused his son. The following day, officers of the Department interviewed the son, the stepdaughter and the Applicant's wife.
11. On 4 December 1986 the Department commenced care proceedings in the Children's Court.
12. On 17 December 1986, the Applicant was interviewed by Police in relation to allegations made by his son. He signed a statement making certain admissions. He was charged with committing an act of indecency with a child under the age of 16 years under s.61E(2) of the Crimes Act.
13. The following day the Children's Court made certain findings and ordered the children be taken to a place of safety until 19 February 1987. Any contact between the Applicant and the children was to be supervised by the mother.
14. On 16 February 1987, the Applicant entered into Consent Orders in the Wollongong Local Court to resolve the Family Law proceedings between them. The Orders included: 1. maintenance payments for the parties' son and daughter; 2. the mother to be granted sole custody and guardianship of the son and daughter; 3. the mother to have exclusive occupancy of the former matrimonial home; 4. the Applicant to be restrained from molesting, harassing or threatening the mother and stepdaughter; 5. the Applicant to be restrained from entering or loitering about the former matrimonial home; 6. the Applicant to seek the advice of a psychiatrist; and 7. the Applicant to have reasonable access to the parties' son and daughter.
15. The Applicant attended Wollongong Local Court on 2 June 1987 in relation to the criminal charge against him. He initially pleaded guilty but subsequently changed his plea to not guilty.
16. On 2 December 1987 the Applicant's wife notified FACS, alleging that the Applicant was interfering with their two children.
17. On 8 December 1987, at the Wollongong Local Court, the Applicant was committed for trial.
18. On 26 August 1988, at the trial of the Applicant in the Supreme Court, after certain evidence, relating to a statement by the Applicant, was excluded, the Crown offered no evidence and the Applicant was discharged.
19. On 3 January 1989 a further notification was made to FACS in respect of the Applicant's son. After officers of the Department spoke to the child, the allegation was not substantiated.
20. On 21 April 1989, a further notification was made to FACS that the Applicant was continuing to abuse the children. Officers of the Department investigated the notification on 24 April but the allegation was not substantiated. The Applicant and his wife told the Department that the stepdaughter was no longer living with them.
21. On 3 August 1993 the Applicant's daughter alleged that the Applicant had sexually abused her. She was interviewed by officers from FACS and the Police on 23 August and signed a statement.
22. On either 24 or 25 August the daughter retracted most of the allegations.
23. On 28 October 1993 in an assessment report from the Child Protection Unit, Camperdown Children's Hospital was said to have concerns that the daughter had been sexually abused but may have recanted her allegations because of separation from her family and her mother's disbelief and lack of support.
24. On 21 January 1994 a report was made to FACS that the Applicant's son and daughter had told the stepdaughter that the Applicant had sexually abused them.
25. On 23 November 2009 a report was made to FACS about concerns that the applicant had been seen kissing his grandson on the lips. The notifier also alleged that the Applicant had previously abused the child's mother, his daughter.
26. The Applicant applied for a Working with Children Check Clearance on 21 April 2015.
27. On 3 August 2015 the Respondent gave notice of an interim bar and requested further information from the Applicant.
28. The Respondent again sought further information on 9 September 2015.
29. On 21 March 2016 the Respondent issued a notice of proposed refusal to the Applicant. However, on 26 May 2016, the Respondent granted a Working with Children Check Clearance to the Applicant.
30. On 14 July 2016 the NSW Ombudsman provided information to the Respondent concerning various allegations relating to the Applicant.
31. The Respondent received further information from FACS on 1 August 2016.
32. On 10 November 2016 the Respondent requested further information from the Applicant.
33. The Respondent issued a notice of proposed cancellation of clearance to the Applicant, with attached reasons.
34. On 28 April 2017 [7] the Respondent issued to the Applicant a Notice of cancellation of his Working With Children Check Clearance with accompanying reasons.
35. The Applicant filed his Application for Review on 7 June 2017.

Evidence

1. The Applicant relies on the following documents: 1. his Administrative Review Application Form filed 7 June 2017; 2. reference from Neil Ballinger dated 8 August 2011; 3. applicant's Statutory Declaration dated 11 April 2016; 4. National Police Certificate dated 4 April 2016; 5. affidavit by his daughter affirmed 8 April 2016; 6. affidavit by his son affirmed 8 April 2016; 7. affidavit of Erika Winkelbauer affirmed 6 April 2016; 8. affidavit of Barry Jones affirmed 6 April 2016; and 9. expert Report of Bradley Jones, Forensic Psychologist, dated 31 August 2017.
2. The Respondent relied on: 1. a bundle of documents filed on 19 January 2018; and 2. a bundle of Further Documents filed on 2 February 2018, containing further documents produced by the Commissioner of the NSW Police on 1 February 2018.
3. The Applicant and Bradley Jones gave oral evidence. The other deponents were not required for cross-examination.
4. The Applicant said in his statutory declaration that he had never abused any child, sexually or otherwise.
5. In his oral evidence, the Applicant said that he had been training football players for 32 years, which is why he required the Working With Children Check clearance. He stated that he and his (now late) wife were going through "a bit of a rough time" in 1986 when the accusations were made. He said he had done nothing, although he had made admissions to the police. He said that the Judge at his trial threw his confession out.
6. In cross-examination by Mr Fraser of counsel for the Respondent, the Applicant said that he was a self-employed plasterer. He had a "brilliant" relationship with his son and daughter. He said that he sees his stepdaughter once or twice a year. She has 6 children but he does not have any relationship with them.
7. When asked why he had made admissions to the Police when he was charged in 1986, the Applicant said that it was after hours of questioning, he decided "whatever", to get it over and done with, "who cares?". He said that he made the admissions so that he could see his children. His wife had told him to tell the Police what he had done.
8. The Applicant said that he had initially pleaded guilty in the Local Court. He never saw a psychiatrist.
9. He denied that he had apologised to his son on returning home.
10. As to his relationship with his stepdaughter, the Applicant said that from the very first they had never seen eye to eye, because her father had told her that she did not have to do what he told her.
11. When asked about the summons taken out by his wife in 1985 alleging that he had assaulted his stepdaughter, the Applicant said that he could not remember going to Court in 1986. When his attention was drawn to the contents of an affidavit which he swore on in the family law proceedings, incorrectly dated 27 January 1986 [8] in the Family Law proceedings, where he admitted assaulting his stepdaughter, the Applicant maintained that he could not remember the incident.
12. The contents of various documents, all from the S. 58 bundle, were drawn to the Applicant's attention. They were: 1. an undated letter by his stepdaughter alleging various sexual assaults on her by him; 2. a referral of child abuse notification prepared by the (then) Department of Youth and Community Services dated 28 January 1988 alleging that he was again sexually assaulting the children; 3. a submission by the District Officer at Shellharbour Community Welfare Centre apparently dated 5 January 1988 containing the transcript of an interview with the Applicant's son concerning allegations of sexual abuse of the Applicant's daughter; and 4. an affidavit sworn by the Applicant's wife on 27 November 1986 in the family law proceedings, where she claimed that he had made derogatory statements about her and her daughter.
13. The Applicant said that he could not remember saying any of those things and denied any recollection of the incidents described.
14. The Applicant agreed that he was aware that reports had been made to the Police that he and his son were involved in the cultivation of cannabis but said that the allegations were incorrect. He went on to say, however, that his son used to deal in drugs when he was in his late teens and he "kicked him out for a couple of years".
15. The Applicant was asked why, in his interview with Bradley Jones, the psychologist, he did not mention any assaults on his stepdaughter. His answer was that he could not remember at the time. He said he answered the questions he was asked. He further said that he would not accept that he had any issues with anger or anger management.
16. Bradley Jones, a Forensic Psychologist, assessed the Applicant on 10 August 2017 and prepared a report dated 31 August 2017.
17. In his report, Mr Jones set out the documents that had been provided to him for the purpose of his assessment and indicated that he was aware that the report was intended to be tendered in evidence before the Tribunal for the purpose of these proceedings. Mr Jones stated that the Applicant: …is no(t) suffering any psychological or psychiatric disorder. The assessment did not identify any deviant sexual history or behaviours. [9]
18. Mr Jones noted that the Applicant denied the allegations made against him that he engaged in any sexual activities with his children or engaged in any inappropriate behaviour with his children or any other child. He stated that the Applicant's risk assessment was difficult to calculate, due to the circumstances associated with the allegations, the Applicant's admissions followed by denial and the period of time between the alleged offences and the period of time when the Applicant was offence free in the community.
19. Mr Jones conducted several tests to assess the Applicant's risk of sexual recidivism. First, he conducted a Static 99 ten item risk assessment inventory for use with adult male sexual offenders, emphasising static factors that do not change over time. He stated that the results of the Static 99 score indicated that the Applicant's score "is in the low risk category relative to other adult male sex offenders. Additionally as the alleged sex offences occurred over thirty (30) years ago, and no further allegations of sex offending are evident, (the Applicant's) risk is significantly reduced." [10]
20. Mr Jones also conducted a Sexual Violence Risk-20 (SVR-20) test. He explained that this is a 20-item checklist of risk factors for sexual violence, "identified by a review of the literature on sex offenders, and is based upon structured professional judgement (SPJ)". [11]
21. Mr Jones opined that the results of the SVR-20 indicate that the Applicant is at a low risk of committing sexual offences.
22. Overall, it was Mr Jones' opinion that the Applicant poses a low risk of committing any offence, sexual or otherwise.
23. Mr Jones gave evidence over the telephone. He said in cross-examination that various matters in the Applicant's history were relevant to his assessment. He agreed that the previous conviction for the assault on the Applicant's stepdaughter was relevant, but went on to say that even if those behaviours were occurring they are still thirty years old. Over the past thirty years there has been no offending reported. The risk assessment was unchanged.
24. No other witnesses were required for cross-examination. The other documentary evidence relied on by the Applicant was unchallenged.
25. The reference by Neil Ballinger dated 8th August 2011 related to the Applicant's work in coaching junior and senior rugby league football and described him as a "very strong standing person within the community".
26. The National Police Certificate dated 4 April 2016 from the Co-ordinator, Criminal Records of the Australian Federal Police certifies "that there are no disclosable court outcomes recorded against the name of" the Applicant. This is not strictly correct, as there is a record from the Local Court at Wollongong that the Applicant was convicted of an assault on his stepdaughter under s.493 of the Crimes Act on 17 January 1986. The fact that this was a private prosecution for assault and not one brought by the NSW Police may explain why the conviction was not recorded by the Federal Police.
27. In her affidavit of 8 April 2016, the Applicant's daughter deposed that she was aware that her affidavit was to be used for an assessment by the Respondent to determine whether the Applicant should be granted a Working With Children Check clearance. She deposed that she was aware of the allegations against her father but had no independent memory of the events. She further deposed that she had no recollection of any abuse, sexual or otherwise, and does not believe that she was abused by him in any way.
28. The Applicant's daughter went on to depose that her half-sister, the Applicant's stepdaughter, coached her to make allegations of a sexual nature against her father.
29. She deposed that she and her father now have a very close relationship and have done so for many years, and: I currently live with my Father and my two children who are aged 13 and 9. He looks after [them] often and I have no absolutely no concerns about leaving them alone with him. [12]
30. The Applicant's son deposed in his affidavit of 8 April 2016 that he, too, was aware of the use to which his affidavit was to be put. He deposed that he was aware of the allegations against his father but has no independent memory of the events including the Police and the Court proceedings. He deposed that he had no memory of any abuse, sexual or otherwise, and does not believe that he was abused by his father in any way.
31. The Applicant's son went on to depose that he recalled his mother telling him before she died that she believed that her elder daughter, the Applicant's stepdaughter, had pressured him into making a complaint. He stated that he had five sons and his father regularly looks after them.
32. Erika Winkelbauer, in her affidavit of 6 April 2016, deposed that she was aware of the purpose of her affidavit. She said that she had known the Applicant for over 15 years and was aware of his activities with a Junior Rugby League Club as a coach, sports trainer and club secretary. She relied on him to supervise her four children who play for the club.
33. Ms Winkelbauer deposed that she was not aware of any incidents in relation to the Applicant that would cause her to be concerned for his ability to supervise or work with children.
34. Barry Jones, in his affidavit of 6 April 2016, also deposed that he was aware of the use to which his affidavit was to be put. He deposed that he had known the Applicant for over 25 years through their mutual involvement with a Junior Rugby League Club. He stated that the Applicant had coached all three of his sons in the course of their involvement with the club.
35. Mr Jones described the Applicant as "reliable and trustworthy" and "of exemplary character in every way." [13]

Submissions

1. The Applicant's solicitor, Mr Murphy, relied on his written submissions filed on 7 February 2018. He chose not to make any further oral submission at the conclusion of the evidence.
2. In his submissions, Mr Murphy referred the Tribunal to the provisions of s.30 of the Child Protection (Working with Children) Act, which sets out the matters that the Tribunal must consider in determining an application of this nature. They are set in paragraphs (a) to (k) of subsection 30(1) of the Act.
3. In addition, under s. 30(1A): The Tribunal may not make an order under this part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
4. Mr Murphy submitted that the issue to be determined is whether the Applicant poses a risk to the safety of children having regard to the factors in s. 30(1) of the Act. He submitted, correctly in my view, that the test to be applied is whether the risk posed by the Applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 [14] at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44].
5. Neither party bears an onus of proof in relation to an application under s 27 (BJB v Children's Guardian [15] ; CFJ v Children's Guardian [16] ).
6. Mr Murphy then proceeded to address the various matters set out in s 30(1) of the Act, as follows:

(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.

1. The Applicant was cleared of any wrongdoing at his trial in the Supreme Court.

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

1. The matters alleged began some 28 years ago and there is no suggestion of an alleged offence since then.

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

1. The Applicant was aged between 24 and 39 at the time.

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

1. The Applicant's stepdaughter was aged 7 and 11 at the times.
2. The Applicant's son was aged 5 at the time.
3. The Applicant's daughter was aged 2 at the time.

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

1. Stepdaughter 26 years, son 27 years, daughter 31 years.

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

1. The Applicant knew they were children.

(g) The person's current age

1. The Applicant is 64 years of age.

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

1. The Applicant has the one offence on his criminal record, the assault on his stepdaughter.

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

1. The Applicant relies on the report of Bradley Jones that says that the risk of recidivism is low.

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

1. The Applicant denies the allegation of sexual abuse and says that he and his wife were going through a heated family law matter at the time. He says that his wife concocted the allegations.

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

1. The Applicant submits that he does not pose a risk to children and should therefore be allowed his working with children clearance.
2. Counsel for the Respondent, Mr Fraser, made an oral submission at the conclusion of the evidence as well as relying on his written submission filed on 19 January 2018. He conceded that the Tribunal was not able to make a positive finding that the allegations of abuse had in fact occurred but the tribunal cannot find that the allegations are false. Therefore, he submitted, the Tribunal should proceed in the manner set out by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406, where his Honour said (in summary) that: 1. in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged acts of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has no hesitation in rejecting the allegation as groundless. 2. even if no such positive finding can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is groundless. 3. even if not positively satisfied that the acts occurred on the balance of probabilities, if a lingering doubt or suspicion remains, then this should count against the applicant, although it is not necessarily fatal to the applicant's efforts to obtain a clearance (BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]). 4. a court or tribunal may make a finding of "real and appreciable risk" even though not satisfied on the balance of probabilities that the relevant conduct occurred.
3. It was further submitted that if the Tribunal was considering making a positive finding that the conduct the subject of an allegation occurred, this should be clearly foreshadowed to the Applicant (see BKE v Office of the Children's Guardian [17] at [70]).
4. It was submitted that only if the Tribunal concludes that the Applicant does not pose a risk to the safety of children is it required to go on to consider the reasonable person and public interest tests in s.30(1A) (CHB v Children's Guardian [2016] NSWCATAD 214 at [107]; ZZ v Secretary, Department of Justice [2013] VSC 267).
5. The Respondent submits that the material discloses: 1. allegations of sexual misconduct towards the Applicant's son, some of which led to charges that were dismissed; 2. allegations of sexual misconduct towards the Applicant's daughter; 3. allegations of sexual misconduct towards the Applicant's stepdaughter; 4. a conviction of assault towards the Applicant's stepdaughter; and 5. other allegations of criminal; or discreditable conduct.
6. It is submitted that the matters forming the allegations against the Applicant are objectively serious, involving allegations of serious sexual abuse against multiple children over a lengthy period of time, some 15 years. The assault on the Applicant's stepdaughter, then aged 15, is also serious, given the child's age and vulnerability at the time.
7. The Respondent noted, in respect of the matters in s.30(1)(b), that the relevant matters occurred between 24 and 40 years ago. The Applicant is understood to have worked with children in his capacity as a volunteer at his rugby league club, without any complaints.
8. The factual matters in paragraphs (c), (d), (e), (f), (g) and (h) of s.30(1) are uncontroversial, as the Applicant and the Respondent have made essentially similar submissions.
9. As to the likelihood of repetition of the conduct, and the impact on children of any repetition, the Respondent submitted that the impact on children would be significant and would potentially have a devastating effect on children. Further, the evidence discloses a number of broadly similar allegations against the Applicant over a period of 15 years, although disclosed over an 8-year period.
10. The Respondent notes the report by Bradley Jones, forensic psychologist, expressing the view that the Applicant poses a low risk of committing any sexual or other offence. In his oral submission at the end of the evidence, Mr Fraser put to the Tribunal that there are limitations on what a forensic psychologist is able to do by way of prediction. Given the pattern of previous disclosures of sexual assault, the Applicant poses a real and appreciable risk.
11. As to the information given by the Applicant, the Respondent submitted that he denied the various sexual allegations made against him and has asserted that they were generated either by his late wife or her daughter. The Applicant did not disclose his conviction for assaulting his stepdaughter and did not address other conduct detailed in his late wife's affidavit of 27 November 1986, even though he admitted some of this conduct in his affidavit of 27 January 1987 in the same proceedings.
12. Further, the Respondent submitted that the evidence of the Applicant's son and daughter needs to be weighed against their detailed contemporaneous accounts.
13. Dealing with the assessment of the allegations, the Respondent noted that only the assault on the Applicant's stepdaughter led to a criminal conviction, although the Applicant admitted some of the violent and abusive conduct detailed in his late wife's affidavit.
14. The Department of Youth and Community services, now FACS, "confirmed" or "substantiated" sexual abuse allegations in respect of the Applicant's son and daughter which had been reported in December 1986.
15. The Respondent submitted that the Tribunal would have regard to the detail of the allegations recorded at the time and the repetition of similar allegations by different children over a period of time. The Tribunal would, therefore, not reach a positive conclusion that the alleged conduct did not happen.
16. Whilst the Tribunal may not be able to reach a positive finding that the alleged conduct did occur, the Tribunal would at least hold a lingering doubt as to whether the Applicant perpetrated at least some of the alleged conduct. On that basis, it is submitted, the allegations remain relevant to the question of whether the Applicant poses a risk to the safety of children.
17. The Respondent submitted that there is prima facie evidence that the Applicant poses a risk to the safety of children and the material filed by the Applicant does not rebut that risk.
18. The Applicant has not provided any evidence of any remedial action he has taken in respect of any of the conduct in question, including the violent and abusive conduct which he previously accepted had occurred. Whilst orders were made in 1987 requiring him to see a psychiatrist, the Applicant did not do so.
19. It was further submitted that notwithstanding the fact that a significant period of time has passed without any reported incident, the lack of any steps taken by the Applicant to address any underlying issues serves to increase the risk of repetition in the future.
20. It is the submission of the Respondent that, in the light of the lack of evidence as to any action taken by the Applicant, the Tribunal would conclude that he poses a risk to the safety of children. Therefore, the submission is that the correct and preferable decision is that the Applicant poses a risk to the safety of children and the Tribunal should refuse the Application.
21. The Respondent further submitted in respect of s.30(1A) matters that: 1. where the Applicant has a conviction for assaulting his 15-year old stepdaughter and there have been multiple allegations of sexual abuse by the Applicant against a number of children, a reasonable person would not allow his or her child to have direct contact with the Applicant that was not directly supervised by another person while the Applicant was engaged in any child-related work; and 2. in the circumstances, it would not be in the public interest for the Applicant to be granted a WWCC clearance.

Conclusions

1. It is clear that, when considering an application for review of a clearance decision, the Tribunal must consider the matters set out in ss 30(1) and (1A) of the Child Protection (Working with Children) Act.
2. First, the Tribunal must consider the seriousness of the allegations and the matters that caused a refusal of a clearance to the Applicant.
3. The matters of concern relate to a period between late 1985 and 1994, although there was one isolated report to FACS in 2009 that the Applicant had been seen kissing his grandson on the lips and had previously abused the child's mother, his daughter.
4. The first matter of concern is the Applicant's assault on his stepdaughter on 30 December 1985. She was 15 years of age at the time. This was the occasion where the child's mother brought a private prosecution for assault in the Wollongong Local Court. The Court records show that the matter came before the Court on 17 January 1986. The mother was represented by a solicitor but the Applicant appeared unrepresented and entered a plea of guilty. The Magistrate recorded a conviction and placed the Applicant on a recognizance to be of good behaviour. He also made a small order for compensation and ordered that the Applicant pay the mother's court costs and professional costs.
5. Surprisingly, when he was cross-examined, the Applicant said that he had no memory of the events whatsoever. Although it was then put to him that he had admitted the assault in his affidavit dated 27 January 1986 [18] , the Applicant maintained that he could not remember the matter at all. It is hard to believe that a person in the position of the Applicant could completely forget going to Court and pleading guilty to an assault on a teenaged girl. This was one example of the unsatisfactory state of the Applicant's evidence before the Tribunal.
6. The Tribunal did not consider the Applicant to be a credible witness in respect of this matter.
7. There have been a number of allegations of sexual abuse by the Applicant against his son, his daughter and his stepdaughter.
8. Allegations in respect of the son were made in December 1986, when his son was 5 years old. These allegations led to the Applicant being charged by the Police and initially pleading guilty, although he subsequently resiled from that plea. The Applicant signed a statement admitting the offences, although that statement was subsequently rejected by the Supreme Court. The Applicant was committed for trial but was discharged as the child had no independent recollection of the allegations.
9. Also in December 1986 there was a report made to the Department of Youth and Community Services that the Applicant had sexually abused his stepdaughter, his daughter and a female friend of the stepdaughter. These allegations, together with the allegation of the sexual abuse of the Applicant's son, led to care proceedings being commenced in the Children's Court on 4 December 1986. On 18 December 1986 the Children's Court found the case "established" and made orders, including that the Applicant's contact with his son and daughter should be supervised by their mother.
10. There were no other findings of abuse that were taken to court but between January 1989 and January 1994 there were various notifications made to the Department that the Applicant had abused his son and his daughter. By April 1989 the Applicant's stepdaughter was living elsewhere and there were no further allegations in respect of abuse towards her.
11. It is noteworthy that the Applicant's wife instituted family law proceedings against the Applicant in the Wollongong Local Court which led to orders being made by consent on 16 February 1987 giving custody of the son and daughter to their mother and restraining the Applicant from molesting, threatening, harassing or abusing his wife and stepdaughter. The orders also required the Applicant to consult a psychiatrist. Although the Applicant had not been legally represented in the assault proceedings the previous year, it appears that he was represented in the family law proceedings as his affidavit shows that it was prepared for him by one Alan Davis, solicitor.
12. The family law proceedings also contained allegations of verbal abuse by the Applicant to his stepdaughter, violence towards the family dog, threats to his stepdaughter, abusive behaviour towards his wife, a physical assault on his daughter and exposing himself in the house in view of his stepdaughter. The Applicant conceded some of the matters in his affidavit but denied most of them, although he blamed his stepdaughter's behaviour for provoking him and making it hard for him to comply with the provisions of his good behaviour bond.
13. None of the subsequent notifications to the Department was substantiated. The report made to FACS on 23 November 2009 alleging that the Applicant was "a convicted paedophile" who was seen kissing his grandson on the lips and had previously abused the child's mother was not substantiated and can safely be disregarded.
14. The Applicant had denied all of the sexual assault allegations, claiming that they were fabricated either by his late wife or his stepdaughter. The affidavit of the Applicant's stepdaughter contains an allegation that her half sister had coached her into making an allegation of sexual abuse.
15. The Respondent also produced evidence from the NSW Police being a number of reports by one or more unnamed members of the general public that between 1999 and 2005 the Applicant and his then adult son were involved in cultivating cannabis and generally dealing in illicit drugs. No charges were laid in respect of these reports. The Applicant denied that he was ever involved but claimed that his son "used to deal in drugs when he was in his late teens". The Applicant said that he "kicked him out for a couple of years" as a result.
16. The period of time since these matters occurred (s 30(1)(b) is substantial, at least 24 years.
17. The Applicant was aged between 24 years and 39 years at the times these matters were said to have occurred (s 30(1)(c)).
18. The ages of the children concerned (s 30(10(d)) (with the exception of the stepdaughter's female friend) at the relevant times were: 1. the Applicant's stepdaughter - between 7 and 11 at the time of the alleged sexual offences and 15 years of age at the time of the assault on 30 December 1985; 2. the Applicant's son - 5 years of age at the time of the sexual abuse allegation that led to the Applicant being charged; and 3. the Applicant's daughter - between the ages of 2 years and 8 years.
19. The difference in age between the Applicant and the victim and alleged victims (s 30(1)(e)): 1. stepdaughter - 26 years; 2. son - 27 years; and 3. daughter - 31 years.
20. The Applicant knew that the victim and alleged victims were children (s.30(1)(f)) as they were his stepdaughter and his natural children.
21. The Applicant was born on 22 November 1953 and was therefore 64 years of age at the date of the hearing (s.30(1)(g)).
22. The Applicant's criminal history (s.30(1)(h) contains only the one conviction, being the conviction recorded by the Wollongong Local Court on 17 January 1986. Although charged with offences against his son, the Applicant was discharged at his trial on 26 August 1988.
23. The likelihood of any repetition of the offences or conduct and any impact on children of any such repetition (s.30(1)(i) is a matter of controversy between the Applicant and the Respondent. The Applicant relies on the Assessment by Bradley Jones, Forensic Psychologist, dated 31 August 2017, which states that the Applicant "poses a low risk for committing any offence, sexual or otherwise". [19] Mr Jones maintained his view in cross-examination, even after it was put to him that the Applicant had not disclosed to him that he had pleaded guilty to an assault on his stepdaughter in the Local Court on 17 January 1986.
24. The Tribunal notes that the Applicant said in cross-examination that he had not mentioned this to Mr Jones because he could not remember at the time and just answered the questions he was asked. The Tribunal found the evidence of the Applicant unsatisfactory on this issue.
25. If the Applicant were to assault a child in the future, whether sexually or otherwise, the impact on such a child would be considerable.
26. The Tribunal must consider any information given by the Applicant (s.30(1)1)(j)).
27. The Applicant's own evidence contained blanket denials of any wrongdoing and assertions that the allegations were fabricated either by his late wife or his stepdaughter. He claimed not to remember the assault proceedings in the Wollongong Local Court, even after his attention was drawn to his earlier affidavit in the family law proceedings made on 27 January 1986.
28. The Applicant relied on affidavits by his now adult son and daughter, both of which were affirmed on 8 April 2016. They were prepared by and affirmed before his former solicitor, James Howell. The contents of the affidavits are very similar, each deponent stating that he or she had no independent memory of any sexual or other abuse committed by the Applicant and expressing the view that no abuse ever happened. Each affidavit refers to pressure or coaching by the Applicant's stepdaughter. The son refers to his mother repeatedly asking him about the allegations.
29. Both the son and the daughter depose that the Applicant regularly looks after their respective children and the daughter, in fact, now lives with the Applicant and her two children, aged 13 and 9.
30. Neither the son nor the daughter was required for cross-examination, so their evidence stands at face value. However, their affidavit evidence contrasts with their detailed, contemporaneous accounts.
31. The affidavits of Barry Jones and Erika Winkelbauer are each in the nature of character references and refer to the Applicant's involvement in junior rugby league. They each refer to "an assessment currently being conducted by the Office of the Children's Guardian" [20] and were prepared after the Applicant was issued with a notice of proposed refusal of his application on 21 March 2016 and before the Respondent initially granted a Working With Children Check clearance on 26 May 2016.
32. The letter from Neil Ballinger, also in the nature of a character reference, is dated 8 August 2011 and is clearly not prepared by the writer in the knowledge of these proceedings.
33. The affidavits of Mr Jones and Ms Winkelbauer and the letter of Mr Ballinger, with respect, are of little weight and do not advance the Applicant's case to any degree.
34. In assessing the allegations of sexual abuse, the Tribunal notes that the Applicant has denied them and has claimed that they were fabricated either by his late wife or his stepdaughter.
35. The assault on the Applicant's stepdaughter was the subject of a plea of guilty in the Local Court, which, curiously, the Applicant claimed at the hearing to have completely forgotten about.
36. The allegation of sexual abuse of the Applicant's son led to a prosecution, although he was discharged at trial.
37. There were findings made by the Children's Court in relation to allegations in respect of the Applicant's son and daughter, which resulted in the children being placed in foster care for a short period of time.
38. What the Tribunal must first do is make an assessment whether the Tribunal can conclude that the sexual assault allegations either occurred or did not occur. With the exception of the matters referred to above, there is insufficient evidence to allow the Tribunal to find that those matters actually occurred.
39. However, there remains a concern, in the nature of a lingering doubt, as to whether the Applicant may have in fact committed some of the alleged abuse. The pattern of the allegations over the period from 1986 to 1994 and the serious way in which the Department of Youth and Community Services responded to them leaves the Tribunal with some disquiet. The Applicant's own evidence was unsatisfactory and he was not a credible witness in his own case. His statements that he could not remember significant matters, including going to court and pleading guilty to an assault on his stepdaughter, even when reminded by reference to a reasonably contemporaneous affidavit, did not ring true.
40. The Tribunal cannot reach a positive conclusion that the alleged conduct did not happen.
41. As there is evidence, including a conviction and some admissions in family law proceedings in 1987, the Tribunal concludes that there is prima facie evidence that the applicant poses a risk to children. Whilst there is no onus on either the Applicant or Respondent, it is clear that the Applicant's written and oral evidence does not rebut this risk.
42. The Tribunal takes into account the lengthy period of time, at least 24 years, since any allegations were made against the Applicant. The Tribunal also takes into account the affidavit evidence of the Applicant's son and daughter, with their assertions that they have no independent recollection of any abuse having taken place, their belief that it did not occur, and their willingness to allow the Applicant to spend time with their own children. The Tribunal also takes into account the assessment by Mr Bradley Jones that the Applicant poses a low risk.
43. Nevertheless, noting, as the Respondent submits, that the Applicant provided no evidence of any steps taken to address any issues relating to his behaviour, including his failure to consult a psychiatrist as he was required to do by the Orders to which he consented in the family law proceedings, the Tribunal finds that the Applicant poses a real and appreciable risk to the safety of children.
44. The Tribunal is of the view that the correct and preferable decision is to refuse the Application and affirm the decision of the Respondent to cancel the Applicant's Working With Children Check clearance.
45. Proceeding to consider the matters referred to in s.30(1A), the Tribunal is not satisfied that a reasonable person would allow his or her child to have direct contact with the Applicant that was not directly supervised by another person while the Applicant is engaged in any child-related work.
46. The Tribunal is also not satisfied that it would be in the public interest to grant the Applicant a Working With Children check clearance.
47. The reasons for the above finding are: 1. the Applicant's conviction for assaulting his stepdaughter; and 2. the multiple allegations of sexual abuse made against the Applicant between 1986 and 1994.

Order

1. The decision of the Children's Guardian made on 28 April 2017 to cancel the Applicant's Working With Children Check clearance is affirmed.

Endnotes

1. The title of the Department of Family and Community Services was previously Department of Youth and Community Services and then Department of Community Services. The current title will be used throughout these reasons for consistency and to avoid confusion.
2. Incorrectly described as "Family Court orders" - the proceedings were in fact taken in the Local Court
3. Office of the Children's Guardian Reasons for Cancellation Decision 28 April 2017 page 9
4. CTE v Children's Guardian [2018] NSWCATAD 28
5. sic
6. Respondent's Submissions 19 January 2018 p.3
7. The Respondent's chronology states the date as "24/4/17" but the Notice of cancellation and accompanying reasons are both dated 28/4/2017
8. The correct date appears to be 27 January 1987
9. Bradley Jones Report 31.08.2017 at page 2, para [3]
10. Ibid page 7 at [30]
11. Ibid at [31]
12. Affidavit 8.4.2016 at [15]
13. Affidavit 6.4.2016 at [10]
14. Also (2002) 56 NSWLR 476
15. supra
16. supra
17. supra
18. Correctly, 1987
19. Report of Bradley Jones 31.8.2017 page 8 para 33
20. Affidavit of B.Jones 6.4.2016 at [4]; affidavit of E. Winkelbauer 6.4.2016 at [4] 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: 12 April 2018