FHZ v Children's Guardian

The criminal charges and matters alleged

1. At the time of the changes, the Applicant was 40 years old. He was the father of a 10 year old daughter and 5 year old son to his wife with whom he was living with. The charges and allegations are in regard to the Applicant's daughter. All of the charges relate to a single incident alleged to have taken place on 12 of October 2017 at the Applicant's home.
2. On 14 October 2017 (check) the Applicant was charged with: 1. Charge 1: Production of child abuse material; section 91H(2) of the Crimes Act 1900 (NSW) (Crimes Act); 2. Charge 2: Indecent assault of person under 16 years of age; section 61(M)(2) of the Crimes Act; 3. Charge 3: Aggravated indecent assault victim under authority; section 61M(1) of the Crimes Act; and 4. Charge 4: Stalk/intimidate with intent; section 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW).
3. Charge 3 was withdrawn on 11 April 2018. Charge 4 was withdrawn on 23 October 2018. Charges 1 and 2 were discharged on 20 January 2020.
4. The following account of the facts is taken from the judgement given by Harris J in the District Court of NSW on 2 August 2019 in granting leave to the Applicant to reverse the pleas of guilty to Charges 1 and 2 made on 23 October 2018.
5. At 12.30pm on Thursday 12 October 2017 the Applicant's wife left home to go to work. The Applicant was at home looking after his 10 year old daughter and his 4 year old son.
6. At about 7pm, the Applicant called out to his daughter, telling her to come to the living room and sit down next to him on the sofa. The daughter did as she was asked and the Applicant, using his left arm, hugged his daughter. He smelled strongly of alcohol. The daughter tried to get the Applicant off her. However, the Applicant lay her down on the sofa. She was lying on her back with her head on the arm on the sofa and the upper parts of her legs were on the lap of the Applicant. The Applicant pulled his daughter's skirt and underwear down to her knees. His daughter asked him what he was doing, and he responded, 'I'm checking your birthmark'. The daughter tried to pull her skirt back up, but the Applicant said 'stop, don't do it' and pulled her skirt down again. At this point, he picked up an iPad and took a photo of her genital area. Following this, the Applicant spread the daughters' legs and touched her on the top of the outside of her vagina for about 5 seconds. At this point, the daughter heard her mobile phone ringing. She quickly stood up and pulled her skirt up from around her knees. The Applicant said to her 'don't tell anybody. If you do, then I'll smack you'. The daughter ran to answer the phone. It was her mother. She spoke to her mother on the phone. The daughter did not tell her mother what had happened. Following the phone call, the Applicant called out to his daughter asking her to come and sit back on the sofa with him. The daughter said 'no' and walked into her bedroom. The Applicant began screaming at his daughter for her to come back to the sofa. The daughter remained in her bedroom and the screaming stopped. A short time later, the daughter went out to the sofa and saw that the Applicant was asleep.
7. At 8:30pm the following day, that is Friday 13 October 2017, the Applicant's wife was looking through the photos saved on her mobile phone and came across a photo of a girl's naked body captured between the girl's stomach and legs including her vagina. The Applicant's wife notice that there was a rug in the photo that appeared to be from her lounge room. Upon further inspection, it appeared that the photo had been taken the previous day at 7:13pm, when she had been at work.
8. Her phone is linked to the iPad that the Applicant had used to take the photo of her daughter's vagina. In the afternoon of Saturday 14 October 2017, the Applicant's wife showed her daughter the photo on her phone and asked her, 'you took this photo, or no?' The daughter answered 'no'. The Applicant's wife asked who took the photo and the Applicant's daughter replied, 'papa took the photo'. The Applicant's wife asked, 'were you asleep on the floor and Papa took the photo?' And the daughter said 'no, he was on the couch, papa told me to lay there, and I sleep there. He opened the underwear. I asked him why he opened the underwear and he said he want to see my birthmark and took a photo.'
9. The next morning, the Applicant's wife called a former neighbour and a friend of hers. This person came around to the house later that evening and discussed the photo. This person later called the police and reported the incident.
10. At about 9:30pm on Sunday, 15 October 2017 police attended the Applicant's home. On the way to the scene, police conducted checks and discovered that there was an enforceable Apprehended Domestic Violence Order (ADVO) against the Applicant, restricting him from approaching the daughter, his son and his wife within 12 hours of consuming alcohol or taking illicit drugs.
11. On attending at the property, the police entered the garage and saw the Applicant asleep on a mattress with two empty vodka bottles next to him. He was placed under arrest for breaching the ADVO. Police seized from the home property a laptop, an iPad and the Applicant's mobile phone. On 16 October 2017 the Applicant was appearing on a bail application for the breach of the ADVO. The Applicant was given conditional bail. After he emerged from the courtroom, he was arrested by police in relation to the allegations of indecent assault of his daughter.
12. The Applicant participated in an electronically recorded interview with police with the assistance of an interpreter on 16 October 2017 (the police interview). The police interview commenced at 5.50pm.
13. During the interview, the Applicant said the following: 1. He does not remember what happened on the evening of 12 October because he was drunk. 2. He was not drunk when he was looking after the kids as he had only started drinking. 3. He thinks he became drunk around 10:00pm. 4. He does not recall the allegations made by his daughter happening. 5. He became aware of the allegations after reading the ADVO taken out against him. 6. He set up his Apple products so that they were linked. 7. He does not remember the incident because he was totally drunk. 8. He is very close to his daughter. 9. She would not lie, so it is so if it is mentioned then he must have done it.
14. During the interview the Applicant said: I could have touched her I should not have done that I don't know what happened I'm feeling guilty I might have done that it might have happened why would she lie I don't know what happened that day I don't remember taking the photo.
15. The Applicant's application to reverse his guilty pleas was made on the basis that he received incorrect legal advice about the admission of the police interview. The Applicant's solicitors had advised the Applicant that his evidence during the police interview that he was too drunk to recall what occurred on 12 October 2017 and his statement that his daughter was truthful meant that he had little to no prospects of being acquitted by a jury.
16. It was the Applicant's lawyer's evidence that the Applicant did instruct him that his daughter did lie and gave an example of when she lied at school. A subpoena was issued on the school, but no relevant documents were produced that suggested that the Applicant's daughter had previously lied about something at school.
17. On 12 March 2018 the Applicant instructed his solicitors that 'I deny all of it, I was drunk, I think I was too drunk in the interview.'
18. On 11 July 2018 the Applicant said to his solicitors that he lied to the police about his daughter because he was looking out for her and did not want to get her into trouble.
19. On another occasion he said to the solicitors that he did not know why he lied to the police. He did not know how to react to the police and was not thinking in a proper way. On 21 August 2018 he said, 'I cannot admit it, I cannot deny it, I cannot accept it.'
20. Harris J gave leave to the Applicant to reverse the guilty pleas because the legal advice that the police interview was admissible was incorrect. Her honour said: There is ample authority to the effect that it is impermissible to ask or cross examine an accused person why a complainant might lie or might have fabricated an allegation against him or her. Such questions risk reversing the onus of proof and tend to invite the jury to accept a complainant's evidence unless some positive answer to that question is given by the accused. In my view. The questions in the interview addressing the truthfulness of the complainant should not have been asked. The questions and answers are not admissible and should have been, upon proper application excluded.
21. The judgement also notes that significant pressure had been placed on the Applicant by his solicitors to plead guilty. Note was also made that the Crown's case appeared relatively strong but that the complainant's evidence was likely to be challenged.
22. On 6 September 2019 the Applicant was released from prison and on 20 of January 2022 proceedings against him were dismissed. The Crown determined to not pursue the charges as the Applicant's daughter decided to not provide evidence. The Applicant is current living separately from his wife and children in accordance with the terms of the ADVO of 25 June 2019 which prevents him having contact with his daughter.

Evidence before the Tribunal

1. The Applicant relies on a number of documents including work related references, documents in the nature of statements and submissions. The Respondent filed a large number of documents pursuant to s58 of the ADR Act that included material obtained from NSW Police.
2. The Applicant gave evidence and was cross examined. The Applicant's evidence is that at the time of the alleged offences he was extremely intoxicated having consumed more than one bottle of vodka and he had no recollection of events. He stated that he had no recollection of that evening as he had been drinking all day, that he usually stayed in the garage but could have been in the lounge room.
3. He stated that while it is possible that he did what was alleged, in particular took the photograph of his daughter's genital region, it was not within his character and so he did not think that he did do it. He said that he did not see any reason why he would have done that.
4. The Applicant stated that he made the statements recorded in the police interview because he thought that he could be released as soon as the interview was finished.
5. The Applicant said that during the police interview he was under duress, fear, under the influence of alcohol and under pressure. The Applicant's evidence was also that he was suffering from alcohol withdrawal symptoms. The Applicant explained by duress, he meant that there is always duress where a person is changed and taken to the police station for an interview. It was put to the Applicant that he made no complaints to the police that he was under duress. The Applicant said that he told the police that he was suffering withdrawal symptoms. He agreed that he was 'upfront' with the police.
6. He understood that the allegations were very serious and that he may have been sent to jail. He said that he understood that the photograph was an image of a vagina and could not have been a 'selfie' and so he assumed that she could not have taken it herself. He was not shown the photograph at the time of the police interview.
7. The Applicant also stated that he usually did not use the iPads as they were for the children, and he had an Android device that he used to watch movies on but that sometimes he did use an iPad if his Android device was not available. He stated that it was possible that he was using the iPad that evening. The iPad is not password protected and anyone one could have used it.
8. He stated that during the interview his first thought was to protect his daughter from her mother, that he was very close to his daughter, and she would be punished by her mother and that he thought to 'save' her from her mother. He said that his daughter has a habit of lying and that his wife is aware of it.
9. The Applicant stated that his daughter has a tendency to lie when she is confronted with wrongdoing, that she usually denies the wrongdoing or blames her brother. The Applicant stated that his daughter had never previously blamed him for something that she had done wrong. The Applicant's evidence was that he believed that his daughter took the photograph herself.
10. The Applicant stated that he has not sought any psychological treatment or counselling because he knows what kind of person he is and he's not that kind of person to harm children. He said that all of this occurred because he was an alcoholic however from mid-November 2017, which was his birthday, he stopped drinking alcohol and has not consumed any alcohol since that time. He stated that he did attend 6 counselling sessions and believes that he has successfully dealt with his addiction to alcohol and that he will not regress or relapse into alcoholism.
11. The Applicant was asked why he believed he developed a problem with alcohol. The Applicant stated that it was because he arrived in Australia as a student and began to drink when he was stressed but that when he drank, he drank to excess and would not stop and that he was a binge drinker. His evidence was that he would usually stop drinking when he ran out of money.
12. As to the ADVO he explained that he was intoxicated, and his wife locked him out of the house and he was banging on the door.
13. The Applicant stated that he wished to return to the family home. He feels that there has been an injustice and he had has had to spend 22 months in prison, that he now has a better relationship with his wife and son and that he would like a Clearance so that he can expand his work opportunities. The Applicant is currently employed as a cleaner in a hospital and requires a Clearance to clean children's' wards.
14. Before the Tribunal is a document prepared by a community counsellor, psychiatrist employed by Auburn Community Health Centre, Community Drug Health, Western Sydney Local Health District (WSLHD) dated 18 June 2021. Ms Merrilees states that the Applicant participated in 9 counselling sessions from 17 September 2019 to 23 January 2020 focusing on alcohol relapse prevention for previous alcohol dependence. Ms Merrilees states that the applicant's medical notes from the WSLHD do not indicate that he has engaged in any further alcohol consumption since completing the relapse prevention counselling in February 2020, there is no evidence that he is maintaining his abstinence but there is an appearance of sustained change to his behaviour.

Applicant's Submissions

1. The Applicant submits that there is no finding that he did engage in the alleged conduct and that the criminal proceedings against him have been withdrawn. He states that while he has no memory of the night in question, he does not think he did engage in the alleged conduct. He says that, in any event, even if it did occur, it was because he was under the influence of alcohol and that this is no longer the case.
2. He stated that his daughter has a history of lying and that he made the admissions during the police interview to protect his daughter and because he did not know what he was saying as he was under duress, drunk and withdrawing from alcohol. The Applicant submits without any objective evidence before the Tribunal that he has not consumed any alcohol for five years, that he has a better relationship with his wife, that his wife was aware of his daughters lying and that he is planning to move back into the family home once the ADVO comes to an end in 2024.
3. The Applicant's submission was that he did not pose a risk to the safety of children because he does not have a character to harm children and that what occurred in the past was entirely because he was an alcoholic.

Respondent's Submissions

1. The Respondent submitted in her closing submission that she did not rely on the transcript of allegations made by the daughter as evidence of truth but that the allegations were made and weight ought to be given to the range of disclosures which were consistent and detailed. The respondent referred to Office of the Children's Guardian v DVR [2022] NSWSC 1036 at [132] per Ass J Harrison. The lack of memory remains a risk that the serious allegations did occur and poses a risk for the future.
2. The Respondent submitted that the Applicant's evidence disclosed inconsistencies and improbabilities. First that the Applicant's evidence was that he did not generally lose memory when he was drinking heavily but he did on the evening of 12 October 2017. Secondly that the Applicant's evidence was that he did not generally use the iPad and did not use the iPad on 12 October 2017 but conceded that he would sometimes use the iPad. Thirdly, the excuse that the Applicant misunderstood the image in the photo does not explain his responses in the police interview in regard to the other conduct alleged against him. Fourthly, the Applicant's evidence that he answered in the way he did was because the police were leading him is not borne out by an examination of the questioning by the police during the police interview. There was evidence given by him why he was remorseful during the police interview. Further there was no adequate explanation given why the Applicant did not express concerns about the police interview when he given the opportunity to do so.
3. The Respondent also submitted that the Applicant did not demonstrate any substantial insight into why he acquired a problem with alcohol and what triggers may lead to a relapse.
4. The Respondent's submission was that the Applicant poses a risk to the safety of children because of the seriousness of the alleged conduct, that a reasonable person would not allow their child to have direct contact with the Applicant that was not directly supervised by another person whilst the Applicant was engaged in child related work and that it is not in the public interest for the Applicant to be granted a Clearance.

Assessment of Risk

1. In circumstances where there are unproven criminal allegations, the Tribunal must attempt to determine if the incident occurred even if it is unable to be satisfied one way or another that the allegations are true or false. The Tribunal may find that the allegations are without foundation or that the allegations are well founded. If the Tribunal is unable to reach a level of satisfaction on the balance of probabilities one way or another the Tribunal must consider whether there is a possibility that the alleged conduct occurred. In carrying out its fact finding function, the Tribunal should take into account the circumstances surrounding the particular incident and the course of conduct. CXZ v Children's Guardian [2020] NSWCA 338 at [57] per Simpson AJA; BKE v Office of the Children's Guardian [2015] NSWSC 523 per Beech-Jones J at [33].
2. However, it may well be that even if the Tribunal makes a finding that by reason of possibility that the alleged conduct occurred, in consideration all of the material and evidence before it, find that the Applicant does not pose a risk to the safety of children or conversely, that it is not satisfied that that an allegation has been made out but conclude that the Applicant poses a risk to the safety children. The Tribunal must consider all of the matters set out in ss30(1) and 30(1A) of the Act and come to a conclusion as to whether the Applicant, if granted a Clearance would pose a risk to the safety children.
3. As Young JA in Eq explained in Commissioner for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [17], [22], [24] and [42] this is a protective jurisdiction and what is being assessed is risk to the safety of children in the present and future sense. The focus of assessing the risk is not mere theoretical or possible risk, it is risk that is greater than the risk of any adult harming a child and it must be based on a factual basis.
4. The Tribunal is satisfied that there is a possibility that the alleged conduct occurred based on the Applicant's own evidence.

Consideration of matters in s30 of the Act

1. In determining whether a person poses a risk to children the Tribunal must consider the matters set put in s30 of the Act. Section 30(1)(a) to (k) of the Act.

30(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 matters that caused the refusal of a Clearance are serious. These matters are the charges set out in paragraph 10 above.

S30(b)-(g) of the Act

1. The allegations are in regard to matters that occurred on 12 October 2017. The child was 10 years old at the time and the Applicant was 40 years old at the time. The Applicant is now 45 years old.

(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred

1. The Applicant does not have a serious criminal history. The Applicant was charged in 2009 and in 2015 with high range drink driving. On 15 October 2017 the Applicant was arrested for breaching an ADVO being an order made on 26 September 2017 in respect of his wife prohibiting him from approaching her or either of his children within 12 hours of consuming alcohol. There has been no criminal conduct since October 2017.

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

1. There is insufficient evidence before the Tribunal to be satisfied that there is little or no likelihood of any repetition by the Applicant of the alleged conduct towards his daughter or any other child.
2. The fact that the possibility that the conduct in fact occurred as alleged by the Applicant's daughter represents some likelihood that the conduct may be repeated.
3. In the five years that has passed since the Applicant's alleged conduct, he was incarcerated for 22 months and has had no contact with his daughter since October 2017.
4. Apart from the evidence that the Applicant participated in alcohol dependence relapse prevention counselling from 17 September 2019 to 23 January 2020 and gave evidence that he has not consumed any alcohol since November 2017, there is no independent or expert evidence as to his consumption of alcohol or his current mental health.

Section 30(1)(i1) to (k).

1. There is an ADVO that is in force in relation to the Applicant by reason of the alleged conduct preventing him from having access with his daughter until 24 June 2024.
2. The Applicant gave evidence and was cross examined. He was a credible witness and made appropriate concessions. However, he did not demonstrate to the Tribunal that he had sufficient insight into his addiction to alcohol or the triggers that may cause relapse.
3. In this case, the Applicant's evidence is that it is possible that he did do the things alleged by his daughter, even though he does not believe that he did those things because it is not in his character to do that. His evidence is that he has no recollection of the events of that evening due to him consuming a very large amount of alcohol.
4. The Applicant submits that even if the allegations against him are true, he only did those things because he was an alcoholic and that he has refrained from consuming alcohol from November 2017.
5. The Applicant also claimed that he has re-established a relationship with his wife and son and is planning to return to live in his marital home once the ADVO ends in 2023. However, there is no evidence from his wife to such effect.
6. While the Applicant says that the cause of his unlawful conduct in the past was the result of alcoholism and that he is not a 'person of bad character', there is no expert evidence from a medical professional as to the Applicant's mental or physical health.

Section 30(1A)(a)

1. Section 30(1A)(a) of the Act states that a Tribunal may not grant a Clearance unless it 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
2. A reasonable person is a fair minded observer with knowledge of the material objective facts. A reasonable person would have some understanding of the civil standard of proof and notions of procedural fairness.
3. In the Tribunal's view a reasonable person would have significant concerns about permitting their child to be in the care of the Applicant for the following reasons: 1. It is possible that the Applicant did engage in the conduct alleged by his daughter; 2. There is no independent evidence that in fact the Applicant no longer consumes alcohol or that he has in fact re-established a relationship with his wife and son; and 3. There is no evidence from a health professional as to the Applicant's propensity to be a risk to the safety of children.

Section 30(1A)(b) it is in the public interest to make the order.

1. Section 30(1A)(b) of the Act states that a Tribunal may not grant a Clearance unless it is satisfied that it is in the public interest to make the order.
2. The legislative scheme in Victoria is in very similar terms and decisions made as to the meaning of the terms in s30(1A) are relevant. In ZZ v Secretary, Department of Justice [2013] VSC 267, Bell J made the following observations regarding "public interest" in regard to a provision similar to that of section 30(1A): 1. The notion of public interest if broad [206]; 2. Central or main consideration is the need to protect children [202]; 3. The right of a person to engage in work in their chosen field is relevant [203]-[204], see also Commissioner for Children and Young People v V [2002] NSWSC 949; (2003) 56 NSWLR 476, 483 [38]; 4. The right of a person to engage in community affairs is relevant [199]; 5. Rehabilitating offenders is relevant and important [202]; 6. Once the Tribunal is satisfied that a person does not pose a real and appreciable risk to children based on factors in s30, it would be unusual if the decision is reversed based on 'public interest' [209].
3. As the Tribunal has found that the Applicant does pose a risk to the safety of children, there is no need to examine s30(1A)(b) of the Act in any detail, however in balancing the competing interests required, the Tribunal finds in this case the protection of children is outweighed by the Applicant's desire to work in those parts of the hospital that have children on its wards.

Conclusion

1. The Tribunal has considered all of the matters in s30(1) and (1A) of the Act and considers that s30(1)(a), (i) and s30(1A)(a) of the Act are of particular importance in this application.
2. The Applicant has not presented sufficient material that may have displaced the Tribunal's concern about 'the likelihood of any repetition' of the conduct arising from the Tribunal's finding that that there is a possibility that the conduct as alleged occurred. The Tribunal does not have a risk assessment report from a psychiatrist that could have provided an opinion as to the Applicant's risk to the safety of children or any other relevant evidence addressing the likelihood of any repetition of the conduct.
3. The Applicant has failed to lead any evidence, apart from asserting the matters directly that he is no longer consuming alcohol, that his daughter has a history of being dishonest, that his wife is aware of his daughter's dishonesty or that he has a better relationship with his wife, and they are intending to live together again as a family unit.
4. The Tribunal accepts the Respondent's submissions about the inconsistencies in the Applicant's evidence and does not accept his evidence about his daughter or his wife. The Tribunal also finds that the Applicant has not demonstrates adequate self-insight as to why he acquired a problem with alcohol and what triggers may lead to a relapse.
5. Based on the evidence and material before the Tribunal, we are satisfied that the Applicant does pose a risk to the safety of children, nor would a reasonable person allow the Applicant to have unsupervised access to their child while he engaged in child related work.
6. The correct and preferable decision is to affirm the decision of the Children's Guardian to refuse the Applicant a Clearance and dismiss the Applicant's application.

Orders

1. The Tribunal makes the following Orders: 1. The decision of the Children's Guardian on 25 February 2022 to refuse the Applicant's Working with Children Check Clearance is affirmed. 2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 3. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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: 30 September 2022