Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DVY v Children's Guardian [2020] NSWCATAD 151 Hearing dates: 28 February, 26 March 2020 Date of orders: 15 June 2020 Decision date: 15 June 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member E Hayes, General Member Decision: (1) The decision of the respondent dated 12 April 2019 to cancel the applicant's working with children check clearance is set aside. (2) In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance. Catchwords: CHILD Protection – Working with children – Sexual assault charges withdrawn – Findings in respect of criminal allegations – Weight of evidence in absence of testing of evidence – Inconsistences in complainant's statement – Inherent implausibility of allegations. Legislation Cited: Administrative Decisions Review Act 2013 Child Protection (Working with Children) Act 2012 Cases Cited: BKE v Office of Children's Guardian [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BRL [2016] NSWSC 1206 Children's Guardian v CKF [2017] NSWSC 893 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Texts Cited: 'Understanding the process of child sexual abuse disclosure: What does the research tell us' (2018) R.J. Pratt and D.Tolliday Category: Principal judgment Parties: DVY (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent) Solicitors: Daniel McGirr Lawyers (Applicant) File Number(s): 2019/00149537 Publication restriction: 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 this proceedings is prohibited. (section 64(1)(a) of the Civil and Administrative Tribunal Act 2013) REASONS FOR DECISION Summary 1. The applicant, who will be referred to as DVY, has applied for a working with children check clearance to allow him to be involved in his children's sporting activities and to gain employment as a bus driver. 2. In 2016, the applicant was charged with sexual offences against the complainant who is his wife's niece and who was said to have been from six to eleven years of age at the time of the offences. The complainant was sixteen years old when the applicant was charged. In 2017, The Director of Public Prosecutions withdrew the charges because the complainant did not want to give evidence in court and said that she did not want the matter to continue. 3. On 12 April 2019, the Children's Guardian, who is the respondent in this matter, refused to grant the applicant a working with children check clearance. In refusing the clearance, the Children's Guardian found the applicant to pose a real and appreciable risk to the safety of children on the basis of allegations that he had sexually assaulted his niece. The applicant applied to this Tribunal for a review of the decision to refuse him a working with children check clearance. Issues 1. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children. 2. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider: 1. whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and 2. whether it is in the public interest to grant the applicant a working with children check clearance. Does the applicant pose a real and appreciable risk to the safety of children? 1. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Children's Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. The Children's Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children's Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children's Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012) 2. In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered those matters raised by the Children's Guardian in refusing the applicant a working with children check clearance, namely that the applicant was charged with sexual offences following allegations that he sexually assaulted his niece when she was between the ages of six and eleven years. 3. We have also considered the written and oral evidence of the applicant and his wife. 4. We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act. What findings are we able to make in relation to allegations that the applicant sexually assaulted his niece? 1. The question for the Tribunal is this: in our determination as to whether the applicant poses a real and appreciable risk to the safety of children what findings are we able to make in relation to allegations that the applicant sexually assaulted his niece? 2. There are three possibilities. We may be satisfied that such the allegations have been established. Alternatively, we may be satisfied that the relevant conduct did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, we may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident, or course of conduct, means that the existence of a risk has not been disproven: Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. 3. In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J explained the statutory test for assessing risk under section 18(2) of the Act in the following terms: [13] The test in s 18(2) of the Act requires a decision maker to consider whether a person 'poses a risk to the safety of children'. 'Risk' in this context excludes 'fanciful or theoretical risk' and instead requires a decision maker to determine 'whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child': Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Children's Guardian [2015] NSWSC 523 at [33]. [14] The first proposition is that, 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 act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has 'no hesitation in rejecting the allegation as groundless'. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a 'decisive impact' on the outcome of the application. [15] The second proposition is that, 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'. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: … determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interest of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they can about, will have a detrimental impact on the child's welfare. [16] 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 defendant, although it is not necessarily fatal to the applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. [17] A court or tribunal may make a finding of 'real and appreciable risk' even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left 'open', the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute. 1. In Children's Guardian v BRL [2016] NSWSC 1206, Fagan J considered what approach should be taken to untested statements in cases where an applicant is seeking to be granted a working with children check clearance: 22. If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016. 23. It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight. 24. What might well have made a difference to the plaintiff's case regarding the gravity of the risk that these allegations may be truthful would have been some evidence tendered to the Tribunal to explain why the complainant would not testify at trial. The possibilities include, on the one hand, that the allegations were false. At the opposite extreme is the possibility that family pressure was exerted on the complainant, given that the complainant's father was the brother-in-law of the defendant. It is possible that at the least she was unsupported by her father in coming forward with the complaints. These competing possibilities, and others which may be imagined, remain matters of speculation, because the Children's Guardian has not inquired into, let alone adduced evidence of, the reasons for the complainant's conduct. If either of these latter possibilities had been supported by investigation on the part of the Children's Guardian and by the tendering of evidence, a case could have been made for receiving the statements for all purposes (even without opportunity to cross examine) and then discounting their weight. 1. In this case, the complainant did not give oral evidence before us nor was she available for cross-examination. The criminal proceedings were discontinued. In response to the request by the Children's Guardian for details, the Solicitor for the Director of Public Prosecutions (per Deputy Solicitor Legal) wrote that the criminal proceedings were discontinued 'as the complainant did not want to give evidence in Court and expressed that she did not want the matter to continue.' 2. Before us, we have the complainant's unsigned and untested police statement setting out her allegations against the applicant. Also before us are police statements from the complainant's mother, father, paternal uncle and from the applicant's wife and his son. There is also a police record of interview with the complainant's school friend 'A' and sworn affidavits by the applicant and his wife. Also included in the material before us are documents from the Department of Family and Community Services before us and a paper by R.J. Pratt and D.Tolliday entitled 'Understanding the process of child sexual abuse disclosure: What does the research tell us.' 3. This material is considered below. The allegations 1. The applicant was committed for trial on the follow seven alleged offences: 1. Sexual intercourse with a person under 10 years (namely 6 years) between 5 October 2006 and 31 October 2006; 2. Sexual intercourse with a person under 10 years (namely 6 years) between 5 October 2006 and 31 October 2006; 3. Sexual intercourse with a person under 10 years (namely 9 years) under authority (that is, under the care and control of the applicant, who was caring for her overnight), between 5 October 2009 and 31 March 2010 4. Indecent assault of a person under 16 years (namely 9 years), between 5 October 2009 and 31 March 2010; 5. Aggravated sexual assault of a person under the age of 16 years (namely 10 years), between 5 October 2011 and 31 December 2011; 6. Aggravated sexual assault of a person under the age of 16 years (namely 11 years), between 1 January 2012 and 4 October 2012 7. Aggravated sexual assault of a person under the age of 16 years (namely 11 years), between 1 January 2012 and 4 October 2012 1. The applicant was charged on the basis of the complainant's evidence, contained in her unsigned police statement. We note the affidavit by Detective Senior Constable Matthew Davis dated 17 February 2020 in which he deposes that he had witnessed the complainant sign her police statement on 18 November 2016 but that the signed statement itself has not been able to be located. The signed statements of the complainant's mother and the complainant's uncle have similarly been unable to be located although signed police statements by the applicant's wife and the applicant's son have been provided to us. A signed statement by the complainant's father was recently discovered and provided to us. The complainant's statement 1. Details of the allegations, as contained in the complainant's unsigned police statement, are as follows: 1. In 2006, when the complainant was six years old, she was sleeping on a blanket bed in the applicant's living room when the applicant put his hand under the complainant's underpants, rubbed her vagina with his thumb then inserted his finger into her vagina, causing her pain. Two of the applicant's children were also asleep in the living room: one on the couch and one on the floor beside the complainant. The applicant left when the child sleeping beside the complainant began to stir. 2. In 2006, three weeks after the first alleged offence, the complainant stated that she had again been sleeping on a blanket bed in the applicant's living room when, according to her statement, the applicant again used his thumb to rub her vagina before inserting his finger into her vagina, causing her pain. Two of the applicant's children were also asleep in the living room: one on the couch and one on the floor beside the complainant. 3. In 2009, when the complainant was 9 or 10 years old, she was again staying at the applicant's house and was sleeping on a blanket bed in the living room when the applicant knelt down next to her, used his thumb to rub her vagina then inserted two fingers into her vagina causing her excruciating pain. Two of the applicant's children were also asleep in the living room: one on the couch and one on the floor beside the complainant. 4. On the same night in 2009, the applicant removed his fingers from the complainant's vagina then re-inserted them many time. 5. On the same night, the applicant put the complainant's hand over his erect penis and used her hand to rub up and down his penis. He stopped when his wife called out, 'babe, where are you?' and called back 'I'm just checking [our son].' 6. In 2011, when the complainant was 11 years old, she was sleeping on a blanket bed in the applicant's living room when the applicant pulled her pants and underpants down to her ankles and inserted his penis into her vagina, which caused the complainant excruciating pain and left blood on her underpants, shorts and thighs. The complainant had earlier heard a ripping noise 'like when you rip tin foil.' The applicant left when his son, who was also sleeping on the blanket bed, began to stir. Another of the applicant's children was sleeping on the lounge. A month after this occurred, the complainant told her friend who told her mother but according to the complainant's statement, 'nothing really happened.' 7. In 2011, when the applicant was 11 years old and sleeping on a blanket bed in the applicant's living room, the applicant approached her, pulled down her underpants, lifted her legs and inserted his penis into the complainant's vagina which caused her immense pain. Again, she had heard something rip: 'It wasn't paper or fabric it sounded more like when you rip tin foil.' His son was sleeping on the blanket bed beside her. 8. Later in 2011, when the complainant was 11 years old and was again sleeping on a blanket bed in the applicant's living room, the applicant pulled down her shorts and underpants, lifted her legs and inserted his penis into her vagina. The applicant stopped and returned to his bedroom when his son, who was also sleeping on the blanket bed, began to stir. One of the applicant's other children was sleeping on the lounge in the living room. 1. According to the complainant's statement, she told her school friend 'A' about the 2006 allegations (which involved digital penetration) 'the following year' stating that 'I remember it was the beginning of [Y]ear 3. I know this because we were sorting our new classes.' 2. In her statement, the complainant explains how she came to make the disclosure to her school friend 'A': [She] started to ask me about [DVY] and I remember she said, 'Why do you always go weird when [he] is around?' I told [her] what had happened and said that he touches me weird and in my private area. [She] kept asking 'why' and saying that it was 'disgusting.' 1. In relation to the 2009 allegation, the complainant says in her statement that: I'm not sure of the exact date but I remember I told [DVY's eldest son] what DVY was doing. I don't know if [DVY's son] believed me or not but he told [DVY] what I had said. 1. According to the complainant's statement, [DVY] then confronted her in the following way: I can't remember everything he said but I remember he said something similar to 'how dare you think I would do this to you. I would never do that to you. You're my niece.' I just nodded my head and kept quiet whilst he was talking. The only other person present when this was happening was [DVY's eldest son]. 1. In relation to the first allegation of vaginal-penile penetration in 2011, the complainant set out the following circumstances in her statement: The next time something happened I was about to turn 11, it was probably about 2 months from my birthday. My mum and day were going on a date and my brother was staying at my Grandma's house. At the time my Grandma was sick and I wasn't a very good sleeper so I didn't want to keep my Grandma awake so I had to stay at [DVY's]… The only home [sic] at [DVY's] house was [the sons] and by this stage [DVY's daughter] had been born and she was about 2 years old. My Aunty was working. Everyone went to bed at about 9pm, I was sleeping on the blanket bed as usual with [DVY's eldest son] next to me and [DVY's elder son] on the lounge. [They] are really heavy sleepers; they don't wake up for anything. I remember that [DVY's eldest son has a mini iPod and was listening to music with headphones whilst he was asleep. 1. In her statement, the complainant says that about a month after the first instance of vaginal-penile penetration by the applicant, she told a school friend 'K' that he was sexually abusing her and that she didn't know what to do. According to the complainant's statement, 'about 2 weeks after I told [my school friend 'K'] she had told her mum but nothing really happened.' 2. In relation to the second allegation of vaginal-penile penetration, the complainant said it occurred after she had turned eleven and had agreed to stay overnight at DVY's place because she thought her aunty would be home. When she went to go to bed, she asked DVY's eldest son where his mother was and he said 'She's not here she's at work.' 3. According to the complainant's statement, it was after the third allegation of vaginal-penile penetration said to have occurred when the complainant was 'about 12' that the mother of her school friend 'K' later told the complainant's mother 'what had been happening.' According to the complainant: It was really rare to see my mum crying and she said 'Why didn't you tell me. How could you not say anything? I'm pretty sure I was about 12 at about this stage. My mum only had minimal contact with [DVY] after this but he hardly came down to our house after this. If [DVY] ever came downstairs she would tell me to go to my room and she only let [DVY] into the kitchen. 1. According to her statement, in late 2016 she told her father 'what [DVY] had done but I didn't tell him it was [DVY] who had done it.' According to the complainant, 'I wrote a letter to my cousin about what had been happening and she showed my uncle…When my uncle read it he spoke to my dad so he knows now.' 2. According to reports from the Department of Family and Community Services ('FACS'), the complainant came to their attention following a report that the complainant was frequently hit by her mother with a slipper, that the mother threatened to throw the complainant over the balcony and that the mother has dramatic mood swings, sometimes attacking the father who refused to strike back. 3. According to FACS reports, in mid 2017, the complainant's mother 'kicked her out of the family home a week ago because she was upset with her.' 4. Apart from FACS reports generated as a result of the charges against the applicant in relation to the complainant's allegations, the applicant's family has never come to the attention of FACS. 5. For the reasons provided below, we have concerns about the veracity of the complainant's statement such that we cannot make a finding that the conduct the subject of the allegations ever took place. The applicant's evidence 1. In a statement prepared for these proceedings, the applicant stated that he has always maintained his innocence in relation to the allegations by the complainant, and sets out suggestions as to why the complainant would have falsely accused him of sexual assault. 2. The applicant's written instructions to his legal representatives for the criminal proceedings are annexed to the statement prepared for these proceedings. In his instructions, the applicant declares that he is innocent of the charges, which he says are false. As evidence that the allegations are false, the applicant lists problems with the timing of the allegations, the physical impossibility of some the acts alleged, inconsistencies within the applicant's police statement, details of a motive by the complainant to make the allegations and the complainant's history of telling falsehoods. 3. The applicant gave oral evidence in these proceedings and was cross- examined at length by Counsel for the Children's Guardian. We found him to be an open and credible witness. 4. In his evidence, the applicant stated that he would like to coach his child's sporting team but is unable to do that unless he has a working with children check clearance. He would also like to be more involved in other sporting activities for his children and perhaps obtain work as a bus driver. 5. He gave evidence that although the complainant would spend a lot of time with the applicant's children in their apartment, she would never fall asleep at the apartment and that neither she nor her brother would ever sleep over in the apartment. He told the Tribunal that the children would never make a blanket bed and never sleep over. He had confirmed this with his wife. He denied ever digitally penetrating the complainant or having her masturbate him. He denied any vaginal/penile penetration with her. 6. According to the applicant: The complainant and her brother would never spend the night at our place. Our house was not big enough for anyone else to live in it apart from our four children my wife and I. Due to [the complainant] living so close to both your own home and her grandmothers house there was never any reason for her to have to stay the night at our place. [The complainant] had her own bed in her own room at her own place and as such would go home each night. 1. He denied ever being told by his son of the complainant's allegations against him, and denied ever saying to the complainant, 'I would never do that, you are my niece.' 2. He told the Tribunal that he has not spoken to the complainant since he was charged in 2016. He denied speaking about the proceedings with the complainant's mother but agreed that he had spoken about the case with his wife and has shown her the brief. On legal advice, he did not participate in a police interview. 3. It is his view that neither his wife nor the complainant's mother has ever believed the allegations. Although the applicant and his family have now moved away from the apartment block where the complainant and her family had also lived, the complainant's mother continues to leave her son with the applicant and his wife and leaves the child with the applicant, even when his wife is not at home. 4. When asked why the complainant made the allegations, the applicant said 'because she doesn't like me.' It is his view that the complainant may have made up the allegations to punish the applicant for his involvement in 2016 in supporting the complainant's mother to prevent the complainant from staying over at her boyfriend's house. Evidence of the applicant's wife 1. Before us is the applicant's wife police statement dated 23 January 2017 and her sworn affidavit dated 20 November 2019. The applicant's wife gave oral evidence in these proceedings, on which she was cross-examined by counsel for the Children's Guardian. We found the applicant to be an open and credible witness. 2. In her signed police statement dated 23 January 2017, the applicant's wife stated that although the complainant and her brother would often come over to play and watch movies, she didn't remember her staying overnight at the unit. 3. In her police statement, the applicant's wife provided the following information in relation to her night shifts: When I was working night shifts, I would generally start at midnight and finish at 8am. I stopped working when I fell pregnant with [elder son] and then went back after he was born and then I stopped permanently, when I fell pregnant with [younger son]. I think I worked for them for in total for approximately 5 or 6 years. 1. According to her police statement, the younger son was born in 2006. 2. In an affidavit prepared for these proceedings, the applicant's wife stated that: I recall sometime later that I read the facts sheet relating to the charges. I remember recalling that much of what was in there was impossible to have occurred. For instance, I can never recall [my niece] staying over at our house. It just simply never happened. Given that our unit was so small and with 6 people living in that house we were never able to have any of our nieces or nephews stay over. We would often look after [the complainant and her brother] but they would always return to their house to sleep. It would just be simply impossible for [DVY] to have done any of the things that [the complainant] alleges even if she stayed in the house, which she never did..[My sister] and I have continued to have a close relationship. [She] trusts [DVY] and allows [her son] to visit our house by himself. 1. She also stated the following in her affidavit: [My niece] is very outspoken..she would say whatever she wanted and do what she wanted and couldn't understand why we had these rules or why she couldn't say certain things in my house. [DVY] would get angry with her and tell her not to talk back to him or not to say certain things or do certain things. [My niece] didn't like this and I felt that she didn't like [DVY] because of it. 1. According to the applicant's wife, when the complainant was 9 or 10 years old, she told her father that the applicant's eldest son was touching her. When asked about it, she denied saying it. According to the applicant's wife 'she would just tell lies and then not take responsibility for it.' 2. The applicant's wife hasn't spoken with the complainant since her husband was charged but confirmed that the complainant's brother still spends time at the applicant's family home. She told the Tribunal that although the complainant and her brother spent a lot of time there, she could not recall a time when they had stayed overnight at the applicant's family home, telling the Tribunal that they would always return home by midnight. She told the Tribunal that there was no room at the house for the children to stay over. They would instead stay overnight at their grandmother's place or at a friend's place. 3. She has spoken to her husband about the allegations and the couple read the details of the allegations together. The applicant told her that the offences alleged did not occur. His wife told the Tribunal that she believes him. Police statement of the applicant's eldest son. 1. In his signed police statement, the applicant's son stated that could not remember the complainant sleeping over at their house for the whole night: The apartment that I live in with my family is above where [the complainant] lived with her family so she would always come upstairs and we would play or watch movies. Although we would be together a lot I don't ever remember [her] sleeping over for the whole night. There were times that she stayed at our house late but I don't remember if she slept the night. 1. He described a close relationship with the complainant stating that: I don't know why [she] is saying this stuff about my dad. I have never seen any sort of awkwardness or strange behaviour between [her] and my dad, [She] has never said anything to me, that my dad was doing something to her. 1. He described how the complainant would get out of going to school by sending an email from her father's account saying that she was sick. 2. In these proceedings, the applicant's eldest was not required by the Children's Guardian for cross-examination and we give weight to the contents of his police statement. Police statement of the complainant's mother 1. In her unsigned police statement, the complainant's mother stated that when her daughter had been 11 or 12 years old, she received a call from the mother of her daughter's school friends 'K'. 'K''s mother told her that DVY had been molesting the complainant. 2. According to the statement of the complainant's mother: I thought the work meant just touching her but not really in a rude way. I cannot really remember how I reacted with [my daughter] or what I said in response to this information. I don't think I asked [my daughter] what was going on either…I just don't know; I trusted [DVY] and thought that my children would be okay. 1. Contained on file is an affidavit by Detective Senior Constable Matthew Davis dated 17 February 2020 in which he deposes that he had witnessed the complainant's mother sign her police statement on 13 December 2016 but that the signed statement itself has not been able to be located. 2. In 2016, after her daughter's father had spoken to her about the allegations, the complainant's mother took her daughter for a drive: [She] was crying and she was really upset. I didn't ask her exactly what happened. I still don't know exactly what happened. This has been a really difficult time for my family because I need to protect and comfort my daughter and I also need to protect and comfort my sister as well. 1. According to her police statement: When [the complainant] was little, maybe around the age of 5 or 6, I remember [she] would always say, 'I don't like [DVY]. She would say this often; I always thought that it was because [DVY] would send [the complainant and her brother] back down to our unit after he got home from work. I think that he did this because he wanted to spend time with his own children. 1. We accept the statement of the complainant's mother as evidence that she was told by the mother of the complainant's school friend 'K' that the complainant had been molested by the applicant. We do not accept the statement as evidence of the truth of the complainant's statement. This is because: 1. the complainant's statement in relation to the allegations of abuse is unsigned, has never been tested and contains inconsistencies, examined below, that give us concern as to its veracity. 2. her mother's statement is unsigned and untested. 3. her mother did not give evidence before us in these proceedings. 4. there is no written or oral evidence before us by the mother of the school friend 'K' referred to in the statement of the complainant's mother. Police statement of the complainant's father 1. In a signed police statement dated 13 December 2016, the complainant's father stated that his children would have sleepovers at the applicant's house and the applicant's children would sleep over at the complainant's house: If my children were staying at [DVY's] unit they will get changed into their pyjamas at our unit and then go upstairs to sleep, play Xbox and watch television. At [DVY's] unit the children used to sleep on the lounge is, or a mattress on the floor. The doors on the unit are never usually locked not the children could come and go upstairs to our unit. The doors were only locked if we were out. On more than one occasion I remember when [my daughter] came back down to our unit because she was scared, had a nightmare, couldn't sleep or wasn't well. I can't remember any exact date but I do remember this happening on one or more occasions. Around the middle of November this year… I was asking [my daughter] if she was okay because I knew she was seeing a psychiatrist and taking anti-depressants. [She] just blurted out 'Daddy someone has been touching me since ages of 6 to 11.' 1. We accept the statement as evidence that in 2016, the complainant told her father that she had been sexually abused from a young age by someone she wouldn't name. We do not accept the statement as evidence of the truth of the complainant's statement. This is because: 1. the complainant's statement in relation to the allegations of abuse is unsigned, has never been tested and contains inconsistencies, examined below, that give us concern as to its veracity. 2. the father's statement is also untested and neither he nor the complainant gave evidence before us in these proceedings. 3. the paper alleged written by the complainant and referred to by her uncle is not before us in these proceedings. Police statement of the complainant's uncle (her father's brother) 1. In his unsigned police statement, the complainant's uncle confirms that in October or November 2016, after the complainant had told her father that she had been sexually abused from a young age, she gave her uncle a piece of paper, on which she had written that she had been sexually abused by the applicant and that she had pretended to be asleep when it was happening. 2. Contained on file is an affidavit by Detective Senior Constable Matthew Davis dated 17 February 2020 in which he deposes that he had witnessed the complainant's uncle sign his police statement on 12 April 2017 but that the signed statement itself has not been able to be located. The piece of paper referred to by the complainant's uncle is not in evidence before us. 3. We accept the statement as evidence that the complainant told her uncle that she had been sexually abused from a young age by the applicant. We do not accept the statement as evidence of the truth of the complainant's statement. This is because: 1. the complainant's statement in relation to the allegations of abuse is unsigned, has never been tested and contains inconsistencies, examined below, that give us concern as to its veracity. 2. the uncle's statement is unsigned and untested. 3. neither the uncle nor the complainant gave evidence before us in these proceedings. 4. the paper allegedly written by the complainant and referred to by her uncle is not before us in these proceedings. Police interview by the complainant's school friend 'A' 1. The complainant's school friend 'A' gave a police interview in 2016 stating that the complainant had told her that, when she was younger, she had been sexually abused by her uncle. 'A' told the police that the complainant had told her this when they were in Year 3 and that her body language had been stressed and worried. 2. According to 'A': Um, it was, um, at night, she was, um, wasn't sleeping but at about 2.00 and, um, I think maybe her other family was in the lounge room, I'm not sure or they're upstairs, um, and then he came in and did things to her…like at the start, I don't know, I'd, I think, um at the start he didn't, I don't think he, um, actually raped her, I think he just did, like, sexual things to her…um, that he just, um, from what I remember, she said that he, um, was feeling around with his finger and then, I'm pretty sure his mu, um, his wife called him, and then he had to leave. And [she] was pretending to be asleep. ..I just remember like never wanting to go close to [him] but um I don't remember what I did after she told me. I just didn't I didn't tell anyone. ..It wasn't my thing to tell 1. We accept the interview as evidence that the complainant told her school friend 'A' that she had been sexually abused by her uncle. We do not accept the statement as evidence that the complainant was sexually abused by him. This is because: 1. the only evidence before us by the complainant is an unsigned, untested statement that contains inconsistencies and details that we find to be implausible, for reasons set out below. 2. the information provided by the complainant's school friend does not correlate to the time provided in the complainant's statement, as examined below. 'Understanding the process of child sexual abuse disclosure: What does the research tell us' 1. We accepted the tender of a 2018 paper by R.J. Pratt and D.Tolliday entitled 'Understanding the process of child sexual abuse disclosure: What does the research tell us' on the basis that it is referred to in the decision by the Children's Guardian to refuse a working with children check clearance and so should form part of the s58 documents. (see s58(1)(b) of the Administrative Decisions Review Act 2013). 2. The document sets out research in relation to the reliability of children's disclosures. We note that the inclusion of fantastical or incredible information within descriptions of abuse is provided as an example of a potential marker of false reporting. Documents from the Department of Family and Community Services 1. It is not disputed that a safety plan was implemented by the Department of Family and Community Services ('FACS') on the basis that the applicant's children were living with the applicant. It is similarly not disputed that while there is no evidence to show that the safety plan was ever formally withdrawn, it is no longer being enforced. 2. The Children's Guardian requested documents from the Department of Family and Community Services pertaining to the applicant. The documents were provided with the caveat that the response 'should not be interpreted to imply that any particular conclusion has been reached or that any action concerns the..person is recommended. It should be noted that any assessments made by FACS only relate to the safety, welfare or wellbeing of any child who may have been involved with the above person.' 3. The FACS notes state that: 1. there is no information that the applicant or his wife had seriously injured or abused their children, ill treated them, threatened to cause harm, used excessive discipline or exposed their children to drugs. 2. there was no information to suggest the applicant or his wife were substance users. 3. the applicant was observed to be stable and to provide supervision and care for his children. 4. the family were very receptive to FACS recommendations. They cooperated with Home Visits and were open to phone calls and unannounced visits. Can a positive finding be made that the allegations against the applicant have been established? 1. For the following reasons, we cannot make a positive finding that the allegations against the applicant have been established: 1. The criminal proceedings against the applicant were discontinued because the complainant did not want to give evidence and did not want the matter to proceed. 2. The applicant has always maintained his innocence on the charges. 3. The applicant has given a written statement and provided oral evidence to this Tribunal, under oath, declaring that he is innocent of the charges that were laid against him. 4. The complainant was not available to be tested on her unsigned police statement. Is there a real risk that the conduct the subject of the allegations occurred? 1. For the reasons provided below and in light of the complainant's refusal to give evidence in the criminal proceedings against the applicant, the lack of explanation for her decision, the internal and external inconsistences contained in the complainant's unsigned and untested statement, the inherent improbability of the later allegations and the inconsistency between statements before us, we cannot be satisfied that there is a real risk that the conduct the subject of the allegations occurred. Refusal to give evidence in the criminal proceedings 1. The complainant advised the Office of the Director of Public Prosecutions that she did not want to give evidence and did not want the matter to go ahead. For this reason, the criminal proceedings were discontinued. No evidence was provided at to why the complainant did not want to give evidence. Inconsistencies in the complainant's statement and with other statements and lack of inherent probability of the conduct alleged 1. Contained in the complainant's unsigned statement are the following claims that have been disputed by the applicant and the applicant's wife who were cross-examined during these proceedings: 1. That the applicant's wife was working at night at the time of the sexual assault alleged to have taken place in 2012 when the complainant was 11 years old. The applicant's wife gave evidence that she had given up any night work by the time her youngest child was born in 2009. No evidence was provided to dispute this. 2. That the applicant told the complainant 'I would never touch you, you are my niece.' In oral evidence before us the applicant denied this. The applicant was cross-examined at length on his evidence by Counsel for the Children's Guardian. 3. In her statement, the complainant claims to have told the applicant's eldest son that the applicant had been touching her. In his police statement, the applicant's eldest son denied being told this by the complainant. No evidence was called to dispute this and the applicant's eldest son was not required for cross-examination, 4. In her statement, the complainant states that the applicant had vaginal-penile intercourse with her while one of her cousins was asleep on the bed right beside her and another on the lounge in the same room. She describes the assault in the following terms: 'It felt like [DVY] was really aggressive because I was trying to move away but [DVY] grabbed me on my shoulder with the one hand and was pulling me back towards him.' According to the complainant, the two other instances of vaginal-penile intercourse also took place while the applicant's eldest son was sleeping on the same mattress at the complainant and his elder son was sleeping on the lounge in the same room. We have concerns that the applicant could have had vaginal-penile intercourse with the complainant in these circumstances without disturbing the child on the bed beside the complainant. The implausibility of this account in a statement that has not been tested leads us to doubt the veracity of the complainant's allegations that the applicant had vaginal-penile intercourse with her. 5. In his unsigned statement, the complainant's father states that in the middle of November 2016, the complainant said to him 'someone has been touching me since ages 6 to 11…. I pretended to be asleep, Dad, when this thing was happening.' There is no mention of the applicant having vaginal-penile intercourse with the complainant. In the complainant's account of the first allegation of vaginal-penile penetration in her unsigned police statement she explains how when she tried to move away the applicant grabbed her by the shoulder and pulled her back. This does not accord with her alleged statement to her father that she would pretend to be asleep 'when this thing was happening.' 1. The doubts we have in relation to the veracity of the complainant's account of the applicant's alleged vaginal-penile intercourse and the inability of the Tribunal to test the complainant's statement lead us to entertain a general doubt as to the complainant's credibility and the consequent veracity of her allegations against the applicant. 2. In making these findings, we have given weight to the written and oral evidence of the applicant and his wife, both of whom we found to be credible witnesses. 3. We have given minimal weight to the statement of the complainant, given its internal and external inconsistencies and the fact that it is untested. 4. Because they have been untested, we have given negligible weight to the statements of the complainant's mother and uncle and father. In considering the mother's statement, we have taken into account the undisputed evidence of the applicant and his wife that the complainant's mother allows her son to remain with the applicant unsupervised. This would indicate that the complainant's mother trusts the applicant. This heightens our doubts as to the veracity of the complainant's allegations against the applicant. 5. In considering the father's statement, we have take into account the evidence of the applicant that the complainant made the allegation to her father shortly after the applicant had, at her mother's request, removed the complainant, under protest, from her boyfriend's house. This would provide a possible motive for the allegations and one we have been unable to explore given the complainant's unavailability to be questioned on her evidence. 6. We have given negligible weight to the evidence of disclosures allegedly made by the complainant, in particular the phone call by the mother of 'K' to the complainant's mother in 2011. This is because the statement of the complainant's mother is unsigned and untested and because we have no evidence from the mother of 'K' to confirm the call or provide details of it. (see Children's Guardian v BLF [2016] NSWSC 1206) Instances of disclosure 1. For the reasons set out above, we have doubts that the applicant sexually assaulted the complainant as alleged and on this basis find that we can not be satisfied that the assaults ever occurred. 2. Before us is evidence that the complainant disclosed to her father, mother, uncle and school friends 'K' and 'A' that her uncle had sexually assaulted her. For the reasons provided below, this evidence does not change our view that, on the evidence before us, we cannot be satisfied that the conduct the subject of the complainant's allegations ever occurred. 3. In her police interview that took place on 21 April 2017, the complainant's school friend 'A' stated that when she and the complainant had been in Year 3, the complainant told her she had been sexually assaulted by her uncle. This conflicts with the police statement of the complainant who said that the applicant had sexually assaulted her two weeks after her sixth birthday and that she had told her friend the following year which, it is not disputed, could not have been in Year 3. The disclosure could not have been made earlier, according to 'A', as she and the complainant had not been friends until Year 2. In light of the discrepancies between the complainant's account of the disclosure and 'A''s account, coupled with the fact that 'A' police interview was not contemporaneous (instead made in 2016) and that her evidence has never been tested, we give it negligible weight. 4. In the absence of any evidence from the mother of the complainant's school friend 'K' and further details and clarification from the complainant's mother as to the mother's phone call to her, we give negligible weight to the unsigned and untested statement of the complainant's mother in relation to her conversation with the mother of 'K'. 5. The applicant gave oral evidence to the Tribunal in which he stated that shortly before her disclosure to her father, the applicant had forced the complainant to leave her boyfriend's house and return home, which had upset the complainant. The applicant gives this as a possible motive by the complainant to make the allegations he declares in his evidence to be false. In the absence of further evidence by the complainant, her father and her uncle to address the question of possible motive, we give negligible weight to the disclosures by the complainant of the alleged assaults. 6. For the reasons set out above, we cannot make a positive finding that the conduct the subject of the allegations ever occurred. Furthermore, in light of the internal and external inconsistencies contained in the complainant's unsigned and untested statement, the inherent improbability of the later allegations, the inconsistency between statements before us and our subsequent doubts as to the veracity of the complainant's account, we cannot be satisfied that the conduct the subject of the allegations ever occurred. For these reasons, on the evidence before us, we find the allegations to be groundless. Consideration of the s30(1) matters 1. As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings. The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a)) 1. The matters that led to the refusal of the applicant's working with children check clearance are allegations that the applicant sexually assaulted his wife's niece over a number of years. These are very serious allegations. For the reasons set out above, however, we are not satisfied that the conduct that is the subject of the allegations ever took place. The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b)) 1. The conduct which is the subject of the allegations is said to have taken place between 2006 and 2012. There have been no subsequent allegations made against the applicant who retains the support of his wife and children and who, on the evidence before us, is trusted by the complainant's mother to care for her son unsupervised. The age of the person at the time the matters occurred (s30(1)(c)) 1. The applicant was 26 to 32 years of age at the time of the alleged offences. 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 complainant was aged 6 to 12 at the time of the alleged offences. She was the applicant's niece by marriage and said to have been in his and his wife's care at the time of the alleged assaults. 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 applicant is 20 years older than his niece. Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f)) 1. The applicant knew his niece was a child and the time of the alleged assaults. The person's present age (s30(1)(g)) 1. The applicant is 40 years of age. 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 has no criminal record and has not been the subject of any other charges, allegations or apprehended violence orders, other than those related to the alleged assault of his niece. 2. When interviewed by officers from the Department of Family and Community Services following their father's arrest, the applicant's children described a close and supportive relationship with the applicant. In light of the allegations made by the complainant, a safety plan was implemented by FACS in co-operation with the applicant, his wife, their eldest son and two family friends. It is agreed that the safety plan is no longer enforced. Since the allegations were made, the applicant has not come to the adverse attention of the authorities. There is no evidence to suggest that officers of the Department of Family and Community Services have any current concerns about the applicant's children. 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. On the evidence before us and for the reasons set out above, we are not satisfied that the applicant ever engaged in the conduct described in the allegations made by the complainant. 2. Such conduct would, we are satisfied, have a detrimental impact on children. There is no evidence before us, however, that the applicant would be likely to ever engage in any such conduct. 3. Given that we do not accept that the conduct the subject of the allegations ever occurred, there is no evidence or material identified during the hearing and examination of the evidence which would establish that the applicant poses a real and appreciable risk to the safety of children. There have been no allegations of any kind made against the applicant either prior to or after the matters for which he was initially charged. Any order of a court or tribunal that is in force in relation to the person (s30(1)(il) 1. There are no orders in force in relation to the applicant. Information given by the applicant in, or in relation to, the application (s30(1)(j)) 1. No further information has been provided. Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl) 1. No further information has been provided. Any other matters that the Children's Guardian considers necessary (s30(1)(k)) 1. No further matters have been put forward for our consideration. Conclusion on section 30(1) matters 1. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance. 2. For the reasons set out above, we are satisfied that the applicant did not engage in the conduct alleged by the complainant. There is no other evidence before us to indicate that the applicant would pose a real and appreciate risk to the safety of children. 3. On the basis of the evidence before us, we find that the applicant does not pose a real and appreciable risk to the safety of children. Section 30(1A) considerations 1. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 prohibits the Tribunal from making an order allowing a person to work with children unless satisfied that: 1. 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 child-related work, and 2. it is in the public interest to make such an order Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? 1. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation. 1. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a "reasonable person" would need to know that: 1. the applicant has no criminal history; 2. the charges made against the applicant were withdrawn after the complainant stated that she did not wish to give evidence against the applicant; 3. the complainant's mother has continued to leave her son in the applicant's care, despite the allegations by her daughter, the complainant; 4. the unsigned statement of the complainant contains internal and external inconsistencies, as detailed above; 5. aspects of the complainant's statement, as detailed above, contain allegations that seem implausible; 6. there have been no subsequent or earlier allegations against the applicant. 1. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. Is it in the public interest to make the orders sought by the applicant? 1. Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. CHB v Children's Guardian [2016] NSWCATAD 214 2. The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration. 3. The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant. Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 4. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said: "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest." 1. For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant. This is because we are satisfied that it is in the public interest for the applicant to be involved with his children's sporting activities and to engage in employment to support his family. Decision 1. For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have also decided 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 was engaged in child-related work, and that it is in the public interest to make such an order. Orders 1. The decision of the respondent dated 12 April 2019 to cancel the applicant's working with children check clearance is set aside. 2. In substitution for this decision the following decision is made: the applicant is to be 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 19 June 2020 - 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: 19 June 2020