Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CCW v Children's Guardian [2016] NSWCATAD 273 Hearing dates: 19 May 2016 Date of orders: 25 November 2016 Decision date: 25 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: R Booby, Senior Member A Limbury, General Member Decision: (1) The decision of the Children's Guardian dated 13 July 2015 to refuse to grant the applicant a Working with Children check clearance is confirmed (2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: 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 Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- where Applicant has not been convicted - whether Applicant poses threat to safety of children Legislation Cited: Child Protection (Working with Children Act) 2012 NSW Crimes Act 1900 NSW Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 Category: Principal judgment Parties: CCW (Applicant) Children's Guardian (Respondent) Representation: Counsel: K Conte-Mills (Applicant) P Lowson (Respondent) Solicitors: Phillip A Wilkins & Associates (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510472 Publication restriction: See Order 2 reasons for decision The application 1. The Applicant, who is referred to in this decision as CCW, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children's Guardian. 2. The Respondent conducted a risk assessment as required under legislation and determined that CCW is a risk to the safety of children and refused to issue a WWCCC. The Respondent notified the Applicant of this decision on 13 July 2015. 3. In an application filed on 10 August 2015 pursuant to s.27(1) of the Child Protection (Working with Children) Act, CCW seeks a review of the decision of the Children's Guardian to refuse him a WWCCC. 4. There is no dispute that the Tribunal has jurisdiction to hear and determine the application. The trigger matters 1. In September 1994 CCW was tried for offences of Aggravated Sexual Intercourse (s. 61J Crimes Act 1900) Aggravated Indecent Assault (x2) (s. 61M Crimes Act 1900) and Act of Indecency – Person under 16 years (s. 61O Crimes Act 1900). These matters are referred to in these Reasons as the "trigger matters". The jury was unable to reach a decision at the trial of CCW in respect of these matters and they were relisted for trial in October 1996. However prior to that trial, the Director for Public Prosecutions withdrew the matters on discretionary grounds. 2. Section 14 of the Child Protection (Working with Children Act) 2012 establishes that an "assessment requirement" arises where any of the matters specified in Schedule 1 of that Act apply. 3. Schedule 1 of the Child Protection (Working with Children Act) 2012 is to the effect that an assessment requirement trigger includes matters where proceedings have been commenced in respect of a matter listed under Clause 1 of Schedule 2 of the Act, where the offence was committed as an adult and the person is not, because of those proceedings, a disqualified person. 4. Clause 1 of Schedule 2 of the Act includes offences listed under sections 61J, 61M and 61O of the Crimes Act 1900. 5. CCW is not a 'disqualified person' by virtue of the trigger matters because he was not convicted of those offences (s.18(1) Child Protection (Working with Children) Act 2012). 6. Whilst the commencement of proceedings in respect of the trigger matters does not disqualify CCW from holding a WWCCC it does result in the requirement for the Children's Guardian to conduct a risk assessment in respect of the application. 7. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. As noted above, having conducted a risk assessment the Children's Guardian formed the view that CCW did pose a risk to children and refused to grant him the WWCCC. 8. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian. (section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]). 9. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal or of information that would lead to the identification of those persons. The relevant law Child Protection (Working with Children Act) 2012 1. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance. 2. The Act was amended by legislation that came into force in November 2015. However CCW's application was made prior to the commencement of the amending legislation and the Tribunal applied the legislation as it stood at the time of the application. 3. Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. 4. The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children. 5. The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration. 6. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." 1. Section 4(1) of the Family Law Act 1975 defines "abuse" as including: "causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence" 1. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: "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. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children." 1. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]). 2. Taking into account all of these matters, it is our view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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. 3. Subsection 15(4) of the Act sets out the factors that the Children's Guardian may consider when making the assessment. These are: 1. The seriousness of any matters that caused the assessment in relation to the person, 2. The period of time since those matters occurred and the conduct of the person since they occurred, 3. The age of the person at the time the matters occurred, 4. The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, 5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. Whether the person knew, or could reasonably have known, that the victim was a child, 7. The person's present age, 8. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred, 9. The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, 10. Any information given in, or in relation to, the application, 11. Any other matters that the Children's Guardian considers necessary. 1. The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are: 1. 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 2. The period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. The age of the person at the time the offences or matters occurred, 4. 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, 5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. Whether the person knew, or could reasonably have known, that the victim was a child, 7. The person's present age, 8. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the Applicant in, or in relation to, the application, 11. Any other matters that the Children's Guardian considers necessary. 1. Subsection 27(4) of the Child Protection (Working with Children Act) 2012 requires that an Applicant must fully disclose to the Tribunal any matters relevant to the application. 2. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an Applicant but to minimise possible risks to the safety of children. 3. In this administrative review, neither party bears the onus of proof. There is no presumption that the Applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person. 4. The Tribunal has to consider the issues having regard to the burden of proof which is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 5. (1) the nature of the cause of action or defence, and 6. (2) the nature of the subject-matter of the proceeding, and 7. (3) the gravity of the matters alleged. 8. In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must 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 interests 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 come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT 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 there is a risk to a child or, more correctly, that the existence of a risk has not been disproven. 1. The Tribunal notes that in this matter, unlike the matter in BKE v Office of the Children's Guardian, the Applicant does not bear the onus of proof. 2. The approach outlined above was considered in respect of an application under s.27 (1) of the Child Protection (Working with Children) Act in the recent matter of Office of the Children's Guardian v CFW [2016] NSWSC 1406. In that matter Harrison J considered an appeal by the Children's Guardian against a decision of the Tribunal. His Honour decided to set aside the orders of the Tribunal and remitted to the matter to the Tribunal for consideration to be dealt with according to the law. In reaching his decision His Honour states: 23 In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the "possibility" of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant "remain[ed] open", the Tribunal should then have asked itself how that "open" conclusion, together with all of the other material before it, bore upon the question of risk … 24 That was the point made by Buss JA in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [85], where his Honour said in the context of the equivalent Western Australian legislation: "[85] Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described… The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions." … 30 There is nothing in the Tribunal's reasons to indicate that it approached its task in the manner identified in these authorities. Its "open conclusion" suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or "inappropriate conduct". That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. This is particularly so having regard to the Tribunal's earlier observation at [97] that the Local Court found that the defendant's actions were "very suspicious", notably an observation that the Tribunal did not question. 31In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be "open". In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act. … 48 The possibility that the defendant had engaged in the relevant criminal or inappropriate conduct … were necessarily bound up in the mandatory consideration of the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition … That demonstrates the importance of undertaking the analysis identified by Buss JA in Grindrod (No 2): weighing all such reasonable suspicions in the process of determining what might happen in the future. The Tribunal instead put to one side its "open" finding and correlative suspicions and thereby failed to satisfy the statutory command that it "must consider" the matters identified in s 30(1). The Evidence 1. The Applicant gave sworn oral evidence and in addition tendered into evidence without objection: 1. His application for review. 2. An affidavit sworn by him on 8 October 2015, with annexures. 3. An affidavit sworn by the wife of CCW on 9 October 2015. She also gave oral evidence during the hearing. 4. An affidavit sworn by the daughter of CCW on 9 October 2015. She also gave oral evidence during the hearing. 5. An affidavit affirmed on 23 March 2016 by Dr Katie Seidler, a clinical and forensic psychologist, with an annexure being a Psychological Risk Assessment. Dr Seidler also gave oral evidence during the hearing. 1. The Respondent tendered into evidence without objection: 1. A bundle of documents pursuant to s. 58 of the Administrative Decisions Review Act 1997 filed on 18 September 2015 and numbered page 1 through to page 319 (the s.58 documents). 2. A bundle of documents filed on 25 September 2015 numbered page 1 through to page 15. 3. A bundle of documents filed on 6 November 2015 numbered page 1 through to page 8. 4. A bundle of documents filed on 23 December 2015 numbered page 1 through to page 328 5. A bundle of documents filed on 7 April 2016 numbered page 1 through to page 18 and also including an additional page (page 248 (a) ) for the bundle filed on 18 September 2015. 6. A bundle of documents filed on 13 April 2016 numbered page 1 through to page 3. 7. A bundle of documents filed on 14 April 2016 numbered page 1 through to page 12. Consideration Matters taken into account by the Children's Guardian 1. In a letter dated 13 July 2015 addressed to CCW, the Children's Guardian advises that it had decided to refuse to grant a WWCCC by reference to the matters set out in subsection 15(4) of the Child Protection (Working with Children) Act and in particular: 1. The seriousness of the matters considered, including the matters for which CCW stood trial in 1994 and an allegation made in 2000, and later retracted, by the daughter of CCW (Daughter X) alleging that CCW had sexually assaulted her for a number of years. 2. The period of time since the matters and the fact that CCW has been offence free over that time, and during that time CCW has been caring for his grandchildren. 3. In 2011 both complainants restated the claims of sexual assault. 4. CCW's age at the time of the matters, being 35 at the time of the first set of allegations, and 42 at the time of the second set of allegations. 5. The age and vulnerability of the complainants. 1. The complainant in the trigger matter was 11 years old when the allegations were made, but said that the abuse began when he was 7 or 8 years old. 2. Daughter X was 15 when she made the allegations and alleged that the matters took place from when she was 13 years old. 3. Both complainants were vulnerable due to their ages and their dependence on CCW as a caregiver. 1. The difference in age between CCW and each of the complainants and the parent-child nature of the relationship between CCW and the complainants. 2. The current age of the Applicant. 3. The seriousness of the Applicant's total criminal record and his conduct since that time, including that he has cared for his grandchildren and that some police records suggest that he has acted protectively towards them. 4. The likelihood of a repetition of the matters that caused the assessment and the seriously harmful risk of a repetition of the behaviour. 5. The information given by the Applicant which, whilst positive, was not considered sufficient to mitigate the level of risk. 6. A 2011 Family and Community Services (FACS) placement assessment that did not support placement of CCW's grandchildren with him. 7. The fact that CCW was provided with a WWCCC in 2012, but the matters considered at that time were different from those currently considered and did not include reference to the second set of allegations. 1. The Children's Guardian concludes that CCW poses a risk to children because of "the seriousness of the alleged sexual abuse, the fact that two separate complainants made clear disclosures, and the age difference and power imbalance" between the complainants and CCW. Consideration of s.30 (1) matters 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 The Trigger matters 1. The facts of the trigger matters according to the Police Facts Sheet regarding the trigger matters are as follows: 1. The facts in relation to the alleged aggravated sexual intercourse and one count of aggravated indecent assault are that on or about the evening of Saturday 20 November 1993 the complainant entered the bathroom at the house he shared with CCW who was his stepfather, and that CCW fondled the penis of the complainant. CCW then removed a dildo from a storage compartment in a stool in the bathroom and using a lubricating substance inserted the dildo into the anus of the complainant. 2. The facts in relation to second count of alleged aggravated indecent assault are that on or about 26 November 1993 the complainant entered the bathroom in the home he shared with the CCW and CCW fondled the penis of the complainant and forced the complainant to masturbate him. 3. The facts in relation to the alleged act of indecency with a person under the age of 16, are that that on or about 22 November 1993 in the bathroom of the shared premises CCW forced the victim to masturbate him. 1. As noted above, CCW was not convicted of the offences alleged. In a letter dated 4 April 2012 addressed to the Administrator, Working with Children, a Solicitor for Public Prosecutions states: 1. In September 1994 CCW stood trial on the four charges comprising the trigger matters. That trial resulted in a hung jury. 2. The matter was relisted for trial in October 1996. 3. Prior to the retrial the complainant informed the office of the DPP that he no longer wished to proceed on the basis that any further participation would be emotionally damaging. 4. The charges were then withdrawn on discretionary grounds. 1. The complainant was initially interviewed by FACS staff following a notification received on 22 November 1993. The FACS record of that interview states that the complainant said that CCW "does rude things to me … he plays with my doodle". When asked if he remembered when this started he said that would have been when he was in "second class, maybe third class". He said that CCW "comes into the bathroom in the morning when Mum is asleep … when I am in the bathtub he comes into the bathroom and plays with my doodle". When asked if CCW did anything else the complainant spoke about "plastic doodles in the seat in the bathroom" and said that CCW "puts the plastic doodles up my bum". He said that CCW had told him not to tell anyone about this or he would get into trouble. When asked about the most recent occurrence of these events, the complainant said that in the morning of the interview, in the bathroom, he had sat on CCW's lap "and his doodle was up between my legs. I played with it and then (CCW) finished until white stuff came out". 2. As a result of the interview the FACS officer contacted police. 3. In the police record of interview dated 26 November 1993 and in his evidence at the trial of CCW in 1994 as evidenced in the transcript of the proceedings, the complainant in the trigger matters provided detailed accounts of the alleged assaults. 4. The trial transcript records that the complainant said CCW lubricated dildos with Vaseline before inserting them in his anus, that during those events he felt like he needed to "do a poo" and that afterwards, when he went to the toilet "it was all runny". 5. The transcript of the trial in 1994 records that the medical doctor who assessed the complainant in the trigger matters said that her examination of the complainant took place approximately one week after the most recently alleged sexual assault. She said that she found no abnormalities of his genital, anal and perianal regions. She also said that vigorous masturbation and anal penetration using a dildo would not necessarily result in abnormalities after one week and that the chances of specific anal damage resulting from penetration would be reduced by the use of a lubricant such as Vaseline. She said that if a small perianal tear were to occur as a result of such penetration it would be likely to heal very quickly and the chances of it being obvious even a couple of days after the alleged penetration would be small. 6. The transcript of the trial also records that the medical doctor said that the complainant spontaneously complained about having diarrhoea following some of the penetrative assaults and that penetration with an item such as a dildo could produce temporary diarrhoea. She agreed that diarrhoea could also be caused by other matters including significant stress. 7. The transcript of the trial of CCW records that the complainant in the trigger matters admitted to watching "sexy videos" at home and also said that he knew about "sexy things" from watching videos and from speaking to older male friends. He said that he had never seen his mother and CCW having sex. 8. The trial documents also indicate that an application was made seeking a permanent stay of the proceedings on the basis that the complainant had previously made and retracted allegations of sexual abuse and he would not be able to be cross examined regarding those matters during the trial of CCW. The historical allegations were to the effect that in or around September to October 1987 when on a holiday, relatives of the complainant and friends of the relatives had sexual intercourse with him. The complainant's mother said that he later retracted the allegations. 9. During the hearing when asked his explanation as to how the complainant in the trigger matters would have a detailed knowledge of sexual matters CCW said that: 1. The children had been caught looking through a crack in the door when he and his wife were engaged in sexual intercourse and also that he had caught the children on a couple of occasions looking at the pornographic videos belonging to him and his wife. 2. He now realises it was inappropriate for the children to be able to observe him and his wife engaged in sexual acts but at the time he did not think they understood what they were seeing. 3. The dildos that were kept in the bathroom were not used for sexual acts but he and his wife would "throw them around". There was not further evidence on this matter. 1. In her evidence, the wife of CCW said she did not know how her son would have obtained knowledge about sexual affairs sufficient to make the detailed allegations that he made and that she has never asked him how he knew these details. 2. In her evidence, Daughter X said that when young she had never seen her parents engaged in sexual acts and had not seen pornographic videos. 3. When questioned by Counsel for the Respondent about his knowledge of the complainant's decision to not proceed with the matters in 1996, CCW responded to the following effect: 1. He could not recall if he had contact with the complainant between 1993 when the jury was unable to reach a verdict and 1996 when the complainant decided not to proceed. 2. When he did see the complainant the latter apologised for making the claims but there was no more in-depth discussion about the matter. 1. Under cross examination the wife of CCW said: 1. At the time of making the allegations her son had said he wanted to live with his natural father. 2. After the allegations were made, there was no discussion about the possibility of the son staying with her and CCW moving out. 3. She does not recall when she first saw her son after he made the allegations but he was probably aged 16 to18 years old. 4. When her son was an adult he had said that he made up the allegations and had apologised for doing so. 1. The s.58 documents provided by the Respondent include a copy of a Statutory Declaration signed by the complainant in the trigger matters. The document is not dated. It is marked as annexure A to an affidavit sworn on 23 November 2004 by CCW. It is also marked as an annexure to an affidavit filed in the Family Court which was sworn on 30 March 2010 by David Nguyen, a Child Protection Caseworker with FACS. The document appears to be incomplete in that it ends with the word "and" and appears to have continued onto a second page. In the document the complainant states (spelling corrected): I wish to withdraw each and all allegations made by me of sexual abuse and sexual assault against (CCW) of (address). All allegations made by me were just that ALLEGATIONS! (emphasis retained). Accusations made by me were false and untrue I wanted to go and live with my father (name) and I had been in a little trouble at home with my mum and (CCW) and I heard at school by the other kids that those type of accusations will get me taken out of my mum and (CCW's) house by DOCS and sent to my dad's. By the time DOCS and the police my dad and grandparents had finish(ed) asking me questions I was so confused and scared I let the situation go on too long and I couldn't I believed back out of it. After the court cases had stopped and (CCW) didn't go to jail I was happy I was with my dad and grandparents and (CCW) was with my mom and (Daughter X) my sister and I thought it was over I got to live with my dad and 1. The Tribunal inquired as to why the complainant in the trigger matters had not been called to give evidence in the current matter and CCW said that he did not know the complainant's whereabouts. 2. In an unsigned document in the form of an affidavit dated 30 March 2010, filed in the Family Court of Australia, David Nguyen a caseworker with FACS states that on 26 November 1993 the complainant in the trigger matters was removed from the care of CCW and his wife. 3. A FACS Placement Assessment of CCW and his wife by Martin Bleeker, of FACS compiled between December 2011 and June 2012 contains statements to the following effect: 1. The Joint Investigation Response Team (JIRT) confirmed that the assaults comprising the trigger matters had occurred. 2. In November 2011 the counsellor of the complainant in the trigger matters said that the complainant had disclosed sexual abuse during counselling and was undergoing counselling to address previous sexual abuse by the Applicant. 1. The Tribunal is of the view that if the trigger matters did occur, taking into account the circumstances of the allegations as outlined in the preceding paragraphs, they are serious matters. The 2000 Matters 1. In refusing CCW's application for a WWCCC the Children's Guardian also took into account allegations made by Daughter X in 2000 that CCW had sexually abused her over a number of years (the 2000 matters). These allegations appear to have been raised initially with FACS staff. A FACS file note dated 27 October 2000 records that on 26 October 2000 Daughter X alleged that her father had been sexually assaulting her. 2. A FACS record of a video/audio recording made on 21 November 2000 states that Daughter X said that the sexual abuse had been taking place over eight to nine years. She said that her father came into the bathroom on numerous occasions whilst she was showering and touched her breasts and vagina and that he had tried to make her perform oral intercourse. 3. The FACS file note records that when FACS officers visited Daughter X at home on 20 December 2000, Daughter X said that she had made up the allegations at the suggestion of her boyfriend who said "if you wanted to do what you liked you have to make something up". 4. A Police Incident Report dated 22 November 2000 states that on 21 November 2011 an interview with Daughter X was recorded during which she said that on 16-18 October 2000 she was in her bedroom preparing to go to work at McDonalds when CCW came into the room and asked her to "pull him off". She refused and CCW then asked her "suck him off" and asked the complainant to allow him to look at her "tits" and she refused. CCW then approached her and pulled her top over her breasts and started to rub his hands on her breasts. She told him to stop and pulled her top down. She said that she telephoned McDonalds and spoke with her training officer saying she would be late for work and then asked a neighbour to drive her to work. 5. The report notes that police investigations at the McDonalds store indicated that the training officer had not received the alleged telephone call. Daughter X then said that she had also been enrolled in a training course at an Employment Service. However inquiries to that service indicated that there was no record of her ever being enrolled or registered with the service. Police spoke to Daughter X about the inconsistencies in her statements and she said that she had made up the allegations because her parents would not allow her to do as she wanted. 6. Annexed to the unsigned affidavit of David Nguyen dated 30 March 2010 is a letter dated 22 July 2004 addressed "To Whom it May Concern", from Daughter X in which she refers to allegations she made "eleven years ago" accusing her father of sexual assault. The Tribunal is not aware of allegations made by Daughter X in 1993, though her 2000 allegations included that the sexual assault commenced around 1993. In the letter she states (Spelling corrected): This letter is to once and for all recant my previous allegations against my father! (CCW). The allegations made me (11 years ago) of sexual assault were not meant to get my father into any type of really deep trouble. It was only meant to allow me to stay away from home as I didn't like following mum and dad's rules. I still don't! But with all the media coverage at the time of people being accused of child molestation, I can't remember who when and why it was suggested to me that if I accused my dad of this I wouldn't be made to go home in case it was true. SO I didn't have to run away any more I could go where I wanted when I wanted and associate with whoever I wanted. And mum and dad could not stop me. WELL it worked for my stepbrother (name of complainant in the trigger matters) so it had to work for me. And it did. NOW! 11 years later when I really need my mum and dad so desperately for my own son's benefit these allegations have resurfaced and have nearly destroyed my dad and also upset my mum, brothers and sister so much it is hurting my new found relationship with my mom, dad brothers and sister and had my son taken into temporary care by DOCS and with the allegations on my dad DOCS completely shut my parents out of taking temp. custody of my 9 ½ week old son. If anyone was allowed to look after my son I wanted it to be my mom and dad. 1. Daughter X states that she believes that her son would be well cared for and "completely safe" with her parents. She also states that she had previously made untrue allegations that her father had bashed her with a baseball bat. 2. The Tribunal was provided with an affidavit dated 6 April 2010 filed by CCW in the Family Court. Attached, as an annexure to the affidavit, is an affidavit sworn by Daughter X on 15 February 2010. In the affidavit she states: 1. Sexual abuse by her father started when she was 7 or 8 years of age and started again when she was 11 years of age. When she was 11 her father stopped sexually abusing her. She believes he stopped because "whenever he would do it I would keep complaining about it" 2. When her parents (CCW and his wife) made an application in the Children's Court in November 2004 she raised the allegations of sexual abuse. CCW proposed that if she withdrew the accusations, he and his wife would bring her son to visit her at the Emu Plains Detention Centre where she was then imprisoned. Alternatively she would only see her son once a month when the DOCS officer brought him for a visit. She states that she accepted CCW's proposal. 3. Her son who was born in 2004 had said "words to the effect of 'poppy grabbed me by the arm and threw me up the other end of the hallway really hard just for drawing on myself with texta' ". Her parents denied the incident but her younger brother and sister who were at home at the time made similar comments. 4. Her son had said words to the effect that "poppy (CCW) always walks around naked". 1. Also attached to the affidavit of CCW dated 6 April 2010 is an affidavit sworn in 19 February 2010 in which Daughter X states that she had seen one of her sons trying to put a toothbrush in the bottom of another son who also said that his brother had put his finger in his bottom. When she spoke to the children about this behaviour they have said words to the effect of "this is what poppy does", referring to CCW as "poppy". 2. In a letter dated 5 April 2010 addressed to Marsdens Solicitors, Daughter X states (spelling corrected): … I am writing to you too strongly express myself about allegations made against my father (CCW). I have recanted all these allegations on more than one occasion these allegations are false and were only made by me due to I was selfish and wanted things to go my way and at the time I wasn't concerned about who I have hurt or the consequences of doing so. I wish to once again recant all allegations made by me against my father (CCW) … Even though I have made these allegations against my father how many times do I have to strongly ask to have these allegations taken away and no longer brought up any more I wish for these allegations to be closed and never spoken of again due to they are untrue and I will swear on oath. … I have decided to sign sole parental rights of (named children) to my parents for very good reason not only have I moved back home to be with my children but I have also moved back home for my parents' love and support during my pregnancy due to complications whilst being pregnant and with my unborn son being born with special needs and requirements and I am going to need their help with raising him … 1. In his affidavit to the Family Court of Australia dated 6 April 2010, CCW denies ever sexually assaulting the complainant in the trigger matters or Daughter X. He also denies that he proposed to Daughter X that she retract her allegations in return for her son being taken to visit her in prison. 2. A FACS Placement Assessment commenced in December 2011 and completed in June 2012 records that Daughter X advised the author of the assessment and a social worker that she had been sexually assaulted by CCW. 3. A FACS file note dated 1 October 2012 records that the caller advised FACS that Daughter X had said she and her brother were sexually assaulted and that they have made statements that they later retracted because she feared that her children would be split up. 4. In a statutory declaration dated 28 October 2014, submitted in response to the Children's Guardian's request for further information, Daughter X states that the allegations that she made "so many years ago are untrue and never happened". She states that she made the allegations because she wanted to go and live with her brother and to do her "own thing" and was "young and stupidly on drugs at the time and didn't care whom I hurt in the progress (sic)". 5. In an affidavit sworn on 9 October 2015 and filed in respect of this matter, Daughter X states that: 1. In 2000 she made allegations against CCW and she made them out of anger because she missed her older brother and did not want to live by her parents' rules. 2. She was "young and stupid and using drugs at the time". 3. In 2010 she said that the allegations were true because she was angry that her parents had commenced proceedings in the Family Court seeking care of her children. 4. Her father has never sexually assaulted her. 1. Under cross examination during the hearing Daughter X said: 1. Her first experience of sexual intercourse was when she was 16 years old. She did not understand about the use of sex toys and until she was older did not know the detail of the allegations made by the complainant in the trigger matters. 2. Her father did not go around the house naked. 3. The 2000 allegations against her father were false. 4. The complainant in the trigger matters encouraged her to make the allegations to support his allegations. 5. She also made the allegations because she wanted to be with her brother. 1. The Tribunal is of the view that if these matters did occur, taking into account the circumstances of the allegations as outlined in the preceding paragraphs, they are serious matters. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The trigger matters are alleged to have occurred in November 1993 being approximately 23 years ago. 2. The matters alleged by Daughter X were said to have most recently occurred in November 2000, which is approximately 16 years ago. The FACS file note refers to her alleging that abuse had been occurring for eight to nine years previously, which would be since 1991-1992 which was 24 to 25 years ago. The police incident report refers to Daughter X alleging that the Respondent had been indecently assaulting her over the previous two years, which would have been since 1998, which was 28 years ago. 3. Since 1991, which is the time of the earliest alleged assault, the s.58 documents provided to the Tribunal record a number of matters related to CCW and to events in his family. 4. A FACS file note dated 2 December 1992 refers to Daughter X claiming that CCW had assaulted his wife as a result of which she sustained a broken arm. Staff attended the home and spoke to CCW and his wife. CCW's wife appeared unharmed and CCW and his wife denied that any violence or argument had taken place. The Tribunal notes that under cross-examination during the hearing CCW said that he has never been violent to his wife. 5. A FACS file note dated 2 March 1993 indicates that Daughter X, who at that time would have been 7 years old, was chanting "sex, sex, sex" and when asked if she knew what she was talking about she said "yes I do it is a secret between me and my Dad". Under cross examination CCW said that he did not recall the issue of the daughter repeating the word "sex" and saying that it was their secret. 6. A FACS file note records a notification on 9 December 1993 that Daughter X, who would have then been 7 years old, was poorly dressed, dirty and sometimes smelling of urine and has been seen wandering the streets early in the morning before school. She was also reported to have no food and to beg food from other children. When spoken to by staff of FACS, amongst other matters, CCW is reported to have said the blame was with others (identity redacted) and that if he "went down there (he) would rip their arms and legs out". He is also reported to have suggested that he "flog the shit" out of Daughter X. When asked about this matter under cross examination CCW said that even if dressed and clean his daughter would go out and would become dirty. 7. In a report dated 23 January 1994 Mr Peter Champion, a clinical psychologist, reports on an assessment of Daughter X. He states that the assessment was requested by the (then) Department of Community Services (DOCS) and refers to concerns in relation to "behaviour problems, allegations of untreated school sores, physical neglect and possible sexual abuse". The report includes statements to the following effect: 1. During the assessment interview, CCW "strenuously denied" having engaged in sexual activity with Daughter X or the complainant in the trigger matters. 2. Daughter X sat extremely close to Mr Champion and had to be asked to leave some space. This form of close physical relating with a stranger is most atypical for a child of that age and quite inappropriate. 3. Some children engaged in sexual interactions with adults of a non-injurious or frightening nature can tend to be over-familiar with adults, having learned this type of behaviour gains them acceptance. However it would be dangerous to conclude that such an explanation is the only one for Daughter X's behaviour and alternative explanations for the observed behaviour could be that a child is emotionally impoverished or neglected or has compromised or dysfunctional bonding and attachment. 4. Daughter X denied that she was subject to physical mistreatment or sexual abuse. Her reporting was defensive. In a family with a tendency to a 'siege mentality' such reticence is not unexpected and had she been mistreated she would have been strongly discouraged from making any disclosures. 5. The assessment did not provide any concrete evidence or disclosure of physical or sexual abuse though many of Daughter X's behaviours would be consistent with such abuse. However the behaviours are not definitive of abuse when other factors such as attention deficit problems, and a general emotional malaise and likely deprivation were present. 6. In terms of the parenting style of CCW and his wife, the following was observed: 1. They were quite unguarded in their comments in front of the children and their attitudes were at times subcultural. 2. The family took an "us and them" view of the world, seeing themselves as under siege by police and welfare and the subject of victimisation. 3. CCW had been a member of a motorcycle gang until about three years previously and still seemed quite taken with the pseudo-mystical and aggressive ethos of such organisations. 4. The content of CCW's speech was often "unguardedly aggressive and assertive". He expressed aggressive thoughts openly and could be considered likely to do so in front of the children. 5. CCW was dogmatic and his wife was passive. 1. When asked under cross examination about the Mr Champion's comments to the effect that CCW and his wife were unguarded in respect of comments made in front of the children, CCW said that they have changed their attitudes and nowadays they are less "blasé". He also said that after the report they gave the daughter more attention and kept appointments made to assist her. He said that matters with the Daughter X improved after that time, but that problems re-emerged later. 2. CCW said that at that time he was of the view that the family should deal with issues rather than seeking the assistance of counsellors but that he has now changed his view and believes that if a person needs help, he should ask for it and that nowadays, if it were recommended to take a child to counselling, he would do so. 3. FACS file notes indicate that on 2 April 1998 Daughter X, who at that time would have been 12 years old, was said to be behaving in age inappropriate ways including describing explicit sexual acts, making explicit drawings in schoolbooks and claiming to be pregnant. When asked under cross-examination about this matter CCW said that Daughter X had a boyfriend who was 14 years old. He said that she would often be with the boy and if he went and collected her she would leave again. He said that Daughter X was examined by a doctor at that time who said that she remained a virgin. 4. FACS file notes indicate that on 29 April 1999 FACS was contacted because Daughter X made a complaint that she had been physically assaulted by CCW. An emergency department doctor tried to arrange an interview with a social worker but Daughter X refused, saying that everything was alright at home. Inquiries of the school revealed that she "tells lots of stories" including allegations of assaults by CCW. 5. Police Incident Reports provided as part of the s58 material record the following matters: 1. On 1 January 2001 CCW is named as one of three victims of an assault at an RSL club. The incident report states that the three victims were intoxicated and that CCW was struck by another person and he retaliated by striking that person. During the hearing CCW said that he was not intoxicated during this incident and was assisting the security staff when he was hit in the head with a bottle. He said that he did not seek charges to be laid because after the fight the aggressors left the vicinity, which was what he and security staff had wanted. No other evidence was offered to the Tribunal regarding this matter. 2. 12 June 2001 a female gave a statement to police alleging that CCW had assaulted her following a car accident at traffic lights. During the hearing CCW said that the other driver had in fact run into him and he took her keys so she could not drive away. He said that he went to court over the matter and was successful in claiming against the other driver. No other evidence was offered to the Tribunal regarding this matter. 3. On 28 February 2009 police were called to an incident involving family members of CCW. 1. In the incident CCW was injured as was his daughter and his brother in law. As police escorted CCW to a waiting ambulance he and his brother in law exchanged words in which they each threatened to shoot the other. 2. The brother in law was taken to the police station and interviewed but was not charged. 3. A FACS record of this incident notes that children were present initially but were removed, though it does not record who removed the children. 4. During the hearing CCW said that he was not intoxicated at the time and had drunk half a bottle of beer. 1. The s.58 documents provide information about a series of matters related to incidents at the school of CCW's children. 1. On 15 March 2010 police were contacted by CCW to report that another school pupil had stabbed his daughter while they were at school. Police noted injuries that they believed were not consistent with stabbing but appeared to be caused by a blunt square like instrument. Police spoke to the school principal who said she would take the matter up with the schoolchildren and their parents. 2. On 16 March 2010 police attended the school and spoke with the Principal about the incident. 3. A FACS record dated 18 March 2010 indicates that a report was received that CCW had said that he would pack a baton into the school case of his son to use if anyone bullied or teased him at school. 4. A Provisional Apprehended Personal Violence Order (APVO) dated 17 March 2010 and valid until 14 April 2010 names the school principal as the protected person and CCW as the defendant. The Provisional Order is attached to a notice that the matter was listed to be heard at Fairfield Local Court on 26 March 2010. The application for the APVO was made by police on behalf of the protected person and includes statements to the following effect: 1. CCW contacted the Principal and was angry that she had inspected the school bag of his son on the basis that it could contain a weapon. 2. CCW then contacted the FACS office and made threats to harm the Principal, saying "I am going to send her to her grave". 3. As a result of that threat, the FACS Officer contacted the Principal and advised her to go home. 4. Having gone home the Principal contacted the police as she was concerned for her safety. 5. The Provisional Order was then made and the matter was listed for Fairfield Court 1. In an affidavit dated 6 April 2010 and filed at the Family Court, CCW states that his words to the Principal were "You won't be happy until I put her (his daughter) in a grave" and by that he meant that his daughter would need to be dead and buried before anything was done. He denied that he had threatened the principal. 2. When asked about this matter under cross examination, CCW said that: 1. Whilst he would not encourage children to fight he would encourage them to do so if there was no other way out. He agreed that a child might not understand this reasoning but said that he believes his children were being bullied and nothing was being done about the situation. 2. He was loud and angry when speaking to the Principal, and he later apologised. 3. The interim AVO was not made final because no evidence was offered. 1. In Police Incident reports CCW is named as a victim in an event that took place on 16 January 2012 when police were called to the house of Daughter X and her partner. Seeing the police at the house CCW attended the house to check on the welfare of his grandchildren and an altercation developed between CCW and Daughter X's partner during which CCW took a shifter spanner and a chrome jack from his car for protection. The police separated the parties. 1. During the hearing CCW said that: 1. He was across the road from the others involved in the altercation and therefore the police did not need to separate him from them. 2. He went to the house because a neighbour had told him that the adults were drunk and affected by marihuana. Daughter X's partner was carrying a knife. 3. He heard no more about the incident from the police, though Daughter X told him that her partner had been charged over the incident. CCW's care of his grandchildren 1. In a statutory declaration dated 28 October 2014 attached to his affidavit dated 8 October 2016, CCW states that he and his wife have the care of their three grandchildren pursuant to a court order. An unsigned copy of a Family Court of Australia Consent Order dated 21 June 2011 is attached to the affidavit. The order provides that the Applicant and his wife have the sole parental responsibility for the children born in 2004, 2009 and 2010 and also makes provisions for the children to have visits with Daughter X. 2. A FACS Placement Assessment commenced in December 2011 and completed in June 2012 recommends that CCW and his wife not be authorised as carers. The reasons for the recommendation include comments to the following effect: 1. In consenting to the Care Plan, the Family Court did not take into account the sexual assault allegations against CCW because of letters of retraction from both complainants. 2. The JIRT had confirmed the sexual abuse of the complainant in the trigger matters. 3. In November 2011 the counsellor of the complainant in the trigger matters said that the complainant had disclosed in counselling sessions that he had been sexually abused and was having ongoing counselling to address sexual abuse by CCW. 4. Daughter X advised the author of the assessment and a social worker that she had been sexually assaulted by CCW. 5. The information provided indicated that the complainants had continued to claim they were sexually assaulted by CCW. 1. Under the heading "Evaluation" the report states: "While a decision was made in the Family Court of Parramatta for the children to reside with their grandparents the magistrate did not want to have a look at any of the sexual assault allegations as the grandparents had provided a retraction letter. The children were placed with the grandparents without any information regarding (Daughter X's) past life reports to Community Services or (the complainant in the trigger matters) sexual abuse statements. This report takes into consideration the past child protection concerns relating to grandparents' children and the sexual abuse statements provided to JIRT and Community Services. It also takes into consideration current statements given to counsellors assisting (Daughter X and the complainant in the trigger matters) regarding past sexual abuse by CWW. 1. Under the heading "Recommendation" the report states: This report makes recommendations regarding the authorisation of (CCW and Mrs CCW) as authorised carers, considering the past statements provided by both (the complainant in the trigger matter and daughter X) in which they both still indicate they have been victims of sexual assault by CCW in the past authorisation is not recommended. The age of the person at the time the offences or matters occurred, 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, the difference in age between the victim and the person and the relationship (if any) between the victim and the person, whether the person knew, or could reasonably have known, that the victim was a child. 1. CCW was born in 1957. At the time of the alleged trigger matter he was aged 36 and the complainant in those matters was then aged 11. 2. At the time of the 2000 allegations, CCW was 43 and the complainant was aged 14. The complainant alleged to police that the sexual abuse had been occurring over the previous 2 years when she would have been 12 and CCW would have been 41. She alleged to FACS staff that the abuse had been occurring over the previous eight or nine years, when she would have been 5 or 6 years old and CCW would have been 32 to 33. 3. The complainant in the trigger matter was the stepson of CCW and the natural son of his wife. The complainant in the 2000 matters was the daughter of CCW and his wife. He would have been aware that both were children. 4. Both children were in a vulnerable position due to their young age and the fact that they were under the parental care of CCW. The person's present age 1. CCW is currently 59 years old. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred. 1. CCW's criminal record comprises the following: 1. 1969 – Stealing –released on probation by the Children's Court 2. 1970 – Break, Enter and Steal – Children's Court- committed to an institution 3. 1973 - Stealing and illegal use of motor vehicle – Children's Court - committed to an institution 4. 1973 – Stealing and abscond - Children's Court - committed to an institution 5. 1974 - Stealing - Children's Court - committed to an institution; Unlicensed Driving x 3 (fined); negligent driving – fined; fail to report an accident - fined 6. 1975 – Court of Petty Sessions - Take and use conveyance– fined; vagrancy – sentenced to the rising of the court. 7. 1976 – Court of Petty Sessions – Assault Male – fined $200 8. 1976 – Court of Petty Sessions – Break, Enter and Steal – fined $300 9. 1976 - Court of Petty Sessions – Goods in Custody – 6 months hard labour 10. 1977 – Court of Petty Sessions – State False Name – fined; unlicensed driving – fined; exceed speed - fined 11. 1977 - Court of Petty Sessions – Take and use conveyance - recognisance 12 months; Unlicensed driving – fine 12. 1977 - Court of Petty Sessions – Stealing – 12 months hard labour 13. 1978 – District Court - Possess Implements capable of being used to drive a conveyance – 12 months imprisonment; Escape Lawful Custody - 12 months imprisonment (Accumulative) 14. 1980 – Receiving - District Court – recognisance – 3 years – Probation and Parole Supervision 15. 1985 – Local Court – Assault Occasioning Actual Bodily Harm - recognisance – 2 years 16. 1988 - Unlawfully possess licence – fined; attempt to fraudulently obtain licence – fined 17. 1989 – Local Court – Possess prohibited item – fined; Drive Whilst Cancelled – fined 18. 1989 – Local Court – Disqualified Driving (2) - fined 19. 1990 – Local Court Mid range PCA – Periodic Detention – 12 months; Disqualified Driving – Periodic Detention – 6 months 20. 1990 - Local Court – Fraudulent Use of Licence – fined; Goods in Custody – fined; State false name and abode – fined 21. 1990 - Local Court – Possess Cannabis – fined 22. 1993 - Local Court – Administer drug – imprisoned rising of court; Possess prohibited drug – 1 month imprisonment; Possess Firearm unlicensed – imprisonment 14 days; Possess shortened firearm (x 2) - 2 months imprisonment – on appeal – recognisance 2 years – Probation and Parole Supervision 23. 1993 – Local Court – Trigger matters – committed for trial – DPP not proceed 24. 1999 – Local Court – Low Range PCA fine; 3 months disqualification. 1. CCW has received no convictions in the past 17 years. The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition 1. In a Statutory Declaration dated 2 May 2012 submitted in support of an application for a WWCCC in 2012, CCW states that all allegations of sexual impropriety were recanted by both complainants "not once but twice in two different courtrooms" and he names the Campbelltown Children's Court and the Parramatta Family Court. Under cross-examination he said that these court matters were initiated by him and his wife seeking custody of the children of Daughter X. He agreed that the only documents produced for the Tribunal in which the complainants recanted their claims were those referred to in the preceding paragraphs. The 2012 assessment 1. A Working With Children Risk Estimate Report dated 22 May 2012 concludes that whilst the matters alleged in the trigger matters were "very serious", the medical examination "did not corroborate the allegations". It also notes that the allegations were made almost 20 years previously and that subsequently the applicant has shown that he had cared for children without incident. The initial 2015 assessment 1. Counsel for the Applicant urged the Tribunal to take into account an initial assessment by a Children's Guardian assessor whose recommendation, dated 9 June 2015, is that that CCW should be provided with the WWCCC. She notes that included in the assessment were comments by the assessor that: 1. CCW had been crime free for 15 years with his most recent offence being a low level driving offence; 2. References provided by CCW show he has engaged in long-term voluntary work with children as well as caring for his grandchildren and his own young children. 3. CCW's age and lack of criminality or anti social lifestyle serve to mitigate the risk to children. 4. CCW has shown that he acts appropriately in difficult or challenging situations and had acted protectively in respect of children in his care. 1. The Tribunal notes that in addition to the matters referred to in the preceding paragraph, the assessor also noted the following in favour of granting the WWCC: 1. The assessor placed little weight on the allegations by the complainants because of their "conflicting statements" indicated by the withdrawal of the allegations, and, in the case of Daughter X, her behaviours in remaking and retracting allegations. 2. The assessor also refers to the Working With Children Risk Estimate Report dated 22 May 2012 that concluded that the trigger matters were not predictive of future risk. She notes that the 2012 assessment did not include reference to the 2000 matters. However in her opinion little weight should be given to those matters taking into account the time since they were made, the limited weight given to them by FACS and JIRT and other information from FACS that suggests that the complainant in those matters made up stories. 3. The assessor was of the view that there are several protective factors including CCW's age, his lack of general criminality, his long-term relationship with his wife and his interest in volunteering. She is of the view that there are no current risk factors for sexual violence. 1. The Tribunal notes that attached to the assessment and recommendation dated 9 June 2015 supporting the grant of a WWCCC is a comment by the team leader who does not support the conclusions reached by the assessor and whose comments are to the following effect: 1. Whilst CCW was not convicted of the trigger matters, the JIRT concluded that the matters were substantiated and the complainant was removed from the house. 2. Whilst the Family Court placed CCW's grandchildren with CCW the FACS documentation indicates that the court did not take the trigger matters or the 2000 matters into account because the allegations had been retracted. 3. FACS appears not to have placed weight on the retractions of the allegations by the complainants and in particular: 1. A FACS assessment record dated November 2011 refers to advice that the girlfriend of that complainant had said that he had been sexually assaulted by CCW. Whilst FACS was not able to confirm the accuracy of that information, the Assessment concluded that both complainants had had continued to maintain that sexual abuse had occurred. 2. The FACS Placement Assessment report from June 2012 notes that the counsellor of the complainant in the trigger matters said that the complainant was undergoing counselling related to sexual abuse. 3. Despite her retractions, Daughter X had told a social worker that she had been sexually assaulted by her father. 4. Taking into account the sexual abuse allegations, the Placement Assessment did not support the authorisation of CCW as a carer. 1. There were additional matters raised in 1993/1994 related to the care provided by CCW and his wife for Daughter X, including the 1993/1994 reports of neglect and lack of protectiveness. 2. Limited weight should be placed on the references provided by CCW. A reference related to his involvement with the Girl Guides association was not endorsed by the organisation and refers mostly to CCW's role as a helper. A reference from CCW's GP does not indicate if the GP was aware of the details of sexual assault allegations 3. Limited weight should be placed on the statutory declaration made by Daughter X because she was an alleged victim and her children are being cared for by CCW resulting in her having a conflict of interest and also because having retracted her allegations in an affidavit she advised a social worker that the allegations were true. 4. Little weight should be placed on the 2012 Working With Children Risk Estimate Report because it was limited in scope and the assessor lacked access to the FACS material. Report of Dr Katie Seidler 1. CCW provided a report dated 8 March 2016 by Dr Katie Seidler, a forensic and clinical psychologist who also gave evidence and was cross-examined during the hearing. History and presentation 1. The Report contains information to the following effect regarding CCW's history and presentation: 1. CCW said that he became a member of a motor cycle gang from the age of 24 years old and remained with the group for some four or five years. He agreed that when he was a member he was exposed to a world of organised crime and drugs as well as violence. He denied any involvement with the gang over the past 20 years and said he has no involvement with any anti-social peer group. 2. CCW said that he is a committed father who takes his family seriously, though he acknowledged that he may not always have done so in his younger years. His two youngest children live at home and he also cares for three of his grandchildren, one of whom has Downs Syndrome. 3. CCW said that he does not like the taste of alcohol and drinks little. He said that he used amphetamines in a binge fashion when he was a member of the motorcycle gang. He said that his use was recreational and was never sufficient to result on impaired functioning. He said that he has used amphetamines twice after leaving the motorcycle gang, the most recent time being when he was in his late 30s. He also said that he has used cannabis and hashish several times and ecstasy on one occasion. Dr Seidler's assessment 1. Dr Seidler suggests that that after leaving the motorcycle gang CCW has become increasingly responsible and has engaged pro-socially in the community and this has been reinforced by his commitment to his family, which has been the mainstay of his routine since that time. Over the past 20 years or so CCW has seemingly been crime free, reasonably consistently productively engaged in the community and has desisted from illicit drug use. 2. Dr Seidler comments that no concerns have been raised about the well being of the grandchildren in the care of CCW. 3. Dr Seidler opines that CCW appears to have changed from an antisocial individual to one who is apparently stable, engaged in the community and committed to the care of his loved ones. Within that context he appears to understand the need for child protection and is committed to being a responsible and mature adult. Risk Management 1. In respect of risk-management Dr Seidler reports that CCW made statements to the following effect: 1. He understands the importance of not being alone with a child and that children with whom he interacts understand who is and what is his role in their life. 2. It is important to work alongside other adults and to keep some physical distance from children. 3. He also commented on the importance of maintaining appropriate boundaries with children and not offering them physical affection. He is mindful of public perceptions of him and his behaviour and that it is important that children feel safe at all times. 4. He would not take a child to the toilet if asked and would also ensure that two workers were present in such situations. 5. He would seek the advice of supervisors and managers if concerned about child protection matters. Personality Profile 1. A Personality Assessment Inventory suggests that CCW's personality profile is within normal limits suggesting that CCW is a well-adjusted and stable individual with no major disturbance in his functioning either emotionally of interpersonally. However he appears to be someone with a personality style that is rather impulsive and risk-taking. Others are likely to experience him as being pragmatic and unsympathetic and there is a frank acknowledgement of a history of antisocial conduct. There is no evidence of anger management concerns or a tendency to aggression in the profile. 2. CCW does not evidence psychosocial instability, (even noting possible attention deficit symptomology), substance abuse or behavioural concerns and CCW has denied a history of intimacy concerns, hyper sexuality, sexual deviancy or paedophilic interests and there is no evidence of sexual self-regulation concerns. Risk of Sexual Violence Protocol 1. In completing the Risk for Sexual Violence Protocol (RSVP) in respect of CCW Dr Seidler rated the items as if the allegations made against CCW were true, thus providing for a conservative estimate of risk. The Protocol results are as follows: 1. Issues that are protective against the risk of future sexually abusive behaviour by CCW: 1. He has never been convicted of a sexual offence. 2. He did not indicate a history of hyper sexuality, entrenched sexual deviancy, or the use of sex as an emotional coping strategy. 3. He does not endorse attitudes consistent with sexual abuse. 4. It has been 20 years since the allegations of abuse and no further allegations have been made over that time. 5. He has had experience of prolonged intimacy in adult relationships. 6. He has positive pro-social supports. 7. His mental health seems resilient. 8. He does not present with substance abuse issues. 9. His lifestyle in recent decades has been stable and pro-social. 10. He has made substantial changes in his life since his younger years of crime, substance abuse and involvement in an antisocial peer culture. 11. He is not a victim of child abuse. 12. He is not psychopathic according to the Psychopathy Checklist - Revised. 13. He is now aged in his late 50s and risk is known to reduce with age. 1. The factors that would elevate CCW's future risk are: 1. He denies the abuse of his stepson and daughter, although the relationship between risk and denial is equivocal. 2. He has a significant history of criminal behaviour. 3. If he did abuse his stepson and daughter as alleged, there was psychological coercion present as a function of his relationship with the victims. 4. If he did abuse his stepson and daughter the behaviours represent diverse and intrusive sexual behaviours. 5. CCW is not a particularly psychologically minded person and as a result his self-awareness is limited. Conclusion 1. In the Dr Seidler's opinion CCW poses a low risk of future sexual abuse. She states: 1. If the allegations against him are true, a substantial period of time has elapsed and he is now an older man, engaged in a productive routine with a stable and committed relationship. It seems therefore that the risks that were present at the time of the alleged abuse are not still present other than the obvious opportunity factor associated with children being in his care. 2. If the alleged abuse did not occur, many of the risk and protective factors outlined are no longer worthy of consideration and his risk of sexual abuse in the future is rendered even lower. 3. The primary issues in this case appear to be related to his past history of criminal behaviour and antisocial peer culture involvement from which he desisted decades ago, following which he made significant personal changes that also resulted in him becoming a better father and husband. Further Evidence 1. Under cross examination Dr Seidler provided additional evidence to the following effect: 1. She agreed that the detail with which the complainant in the trigger matters described matters such as the use of a dildo, the use of Vaseline as a lubricant and masturbation suggested that he has been exposed to inappropriate sexual conduct or abuse at some time. 2. She agreed that the fact that two children had made allegations of sexual abuse was unusual and that it is possible to surmise that there were issues of family dynamics or family relationships that resulted in the allegations. 3. The observations in the 1994 psychological report that CCW had a patriarchal role in the family does not increase the likelihood that any problems in the family dynamics were the fault of CCW and nor does it increase the likelihood that he would be engaged in physical or sexual abuse as it is often a quiet or 'pathetic' parent who engages in such behaviour. 4. It is possible that CCW's attention deficit disorder resulted in him not focussing on children's needs but this would not increase the risk of violence towards a child. 5. The incidents related to the school principal and the altercation with the Daughter X's partner could reflect CCW's "gruff, rough" behaviour which could have been affected by his time in imprisonment. If these events reflected a predisposition to violence it would be likely that this would be evidenced in other ways such as hitting the children or physical aggression at events such as a football match. 6. The relationship between lack of insight and remorse and increased risk of reoffending is not well established in the literature. 7. Important aspects of avoiding future risk are understanding what is necessary for the safety of children and strategies to avoid the risk whether or not the person committed the offences. CCW understands these issues. Any information given by the Applicant in, or in relation to, the application 1. Attached to CCW's application for review is a document headed "Grounds for Application" which lists the following matters: 1. CCW does not pose a risk to the safety of children. 2. CCW has never been convicted of any child sexual offence. 3. The alleged victims recanted their allegations of sexual abuse. 4. The allegations of sexual offences are more than 15 years ago and there have been no allegations since then. 5. The Applicant has had no police involvement for 15 years. 6. CCW was approved as a foster carer by FACS. 7. CCW has full time care of his grandchildren pursuant to orders of the Family Court to which FACS was a party. 8. The refusal of a WWCCC affects CCW's day to day care of the children in his care. He is no longer able to drive the bus that transports his special needs grandson and other special needs children and their parents and prevents him from being able to transport his daughter and granddaughter to Girl Guides activities and from being involved in those activities. 1. In his affidavit dated 8 October 2015, in addition to the matters canvassed in preceding sections of these Reasons, CCW makes statements to the following effect: 1. On 21 June 2011 final consent orders were made by the Family Court of Australia whereby the Applicant and his wife were granted sole parental responsibility for three children of Daughter X. He provides the following additional information regarding the placement of the grandchildren: 1. On or around 13 July 2004 a grandson born in 2004 was removed from the care of Daughter X and following an application to the Children's Court, he and his wife were successful in having that child placed in their care. 2. In 2006 Daughter X was released from custody and the child born in 2004 was placed back in her custody. 3. In 2007 following an incident between the Daughter X and her brother, Daughter X, who had been living with them, was asked to leave, but the grandson born in 2004 remained in their care. 4. Daughter X had a girl born in 2009 who was removed from the care of her mother in or around March 2010. 5. Daughter X had a son in 2010. He has Down's Syndrome. 6. On 21 June 2011 consent orders were made to the effect that the three grandchildren were to reside with CCW and his wife. 1. The Applicant and his wife were recognised by FACS as foster carers up until 2007. They did not seek to continue as 'recognised carers' after that time due to their commitments within their own family. 2. He denies the trigger matters and the complainant in those matters has told CCW that he was advised that if he said he was abused he would be removed from the care of the CCW and his wife and he later retracted the accusations. 3. CCW denies the allegations made Daughter X in relation to the 2000 matters. Daughter X retracted the allegations. Later, when CCW and his wife had commenced proceedings in the Family Court, Daughter X said the allegations were true but she has since retracted them including in a statutory declaration dated 28 October 2016 attached to his affidavit. 4. CCW is actively involved in the life of his grandchildren including volunteering with the Girl Guides. 5. CCW has been driving a bus to collect families and children attending a Learn Links Early Intervention Group. 6. In 2012 CCW was given a temporary clearance to work with children, which he did for 12 months without incident. 7. He has had no involvement with police since 2000. 8. There have been no investigations of the children in his care since the parenting orders were made by the Family Court in 2011. 1. In a statutory declaration dated 28 October 2014 attached to his affidavit of 8 October 2015, in addition to the matters canvassed in preceding sections of these Reasons, CCW states that his daughter visits her children in his care almost every day and leaves her other children with him. 2. Attached to his affidavit dated 8 October 2015, CCW provides the following references: 1. A reference from a doctor who states that he has known CCW for 20 years as a patient over which time CCW has cared for his children and grandchildren and the doctor has not heard of any complaints about "child abuse or to that nature with children in his care over the years I have known him. He is very protective of the children in his care". 2. A reference from a Girl Guides Leader who describes CCW as reliable and as caring for his family. She states that she was advised that allegations against CCW were "dismissed and withdrawn". The Tribunal notes that she does not identify the allegations. 3. A reference from the Manager of Early Childhood Services who states that CCW drives a bus to collect families attending group activities which he also attends. She states that she has been advised about the allegations and that CCW's interactions with the children are appropriate. The Tribunal notes that she does not identify the allegations. 1. When asked under cross examination if he believes exposure to pornographic videos could be harmful for children CCW said that he believes that it could be harmful and that he now takes precautions including requiring a PIN code to be entered to access material such as pornography and also he supervises children's access to the internet. 2. When asked under cross-examination about whether his views on parenthood have changed, CCW said that his previous attitude was that children raised themselves, but he now realises that more is required of a parent. 3. Counsel for the Applicant made the following submissions: 1. In restating the allegations in 2010 "it is clear" that Daughter X has used the allegations to benefit her own case in the Family Court proceedings. 2. The Tribunal cannot be satisfied that the abuse occurred because: 1. CCW has never been convicted; 2. Both complainants have made statutory declarations that the allegations were false and have said that they made the allegations because they wanted to live elsewhere. 3. The allegations were made 23 years and 16 years ago respectively and there have been no further allegations. 4. CCW and his wife have the care of their grandchildren. 5. There have been no allegations made by the younger children of CCW. 1. Further submissions on behalf of CCW were made to the following effect: 1. The complainant in the 2000 matters continues to have a close relationship with CCW and relies on the assistance of her parents with her own children. 2. Whilst CCW has an extensive criminal record he has been crime free for a substantial period of time and has never been convicted of a sexual offence or an offence against a child. The Apprehended Personal Violence Order protecting the school principal was an interim one and was not made final because no evidence was offered. 3. Significant weight should be placed on Dr Seidler's assessment of CCW as posing a low risk of offending. 4. An expert report was filed at the Family Court when the consent orders were made regarding CCW's grandchildren and that report deemed that the Applicant was no risk to the children. However the report cannot be tendered or admitted into evidence pursuant to s.121 of the Family Law Act 1975. Any other matters that the Children's Guardian considers necessary 1. Counsel for the Respondent made submissions to the following effect: 1. The Tribunal should be satisfied that the abuse alleged in the trigger matters actually occurred and on that basis that CCW poses a risk to children. She submits that such a finding could be based on the following matters: 1. The detail contained in the allegations taking into account that the complainant was then aged 11. 2. The seriousness with which the prosecuting authorities treated the allegations. 3. The fact that the allegations were sustained by the JIRT. 4. The reference to the complainant undergoing counselling in recent years in relation to sexual abuse. 1. In the alternative, if not satisfied that the abuse alleged in the trigger matters occurred, the Tribunal may not be satisfied that the abuse did not occur. In those circumstances, having regard to the paramount welfare of children, the Tribunal would be justified in concluding that CCW poses a risk to children 2. In respect of the 2000 matters, Daughter X remains dependent on her parents given her own life circumstances and the need for her to rely on her parents as carers for her own children the eldest of whom was born when she was aged 17. 3. CCW has a significant criminal record with an historical connection with an outlaw motorcycle gang and a history of violent behaviour. The interim Personal Violence Order protecting the school principal was in respect of a recent display of uncontrolled violence. 4. Limited weight should be placed on Dr Seidler's report because she does not address the significance of CCW's continued denial of the allegations. 5. It is significant that the Applicant was refused authorisation in the Placement Assessment. One matter taken into account in relation to that assessment was that the JIRT had substantiated the claims. Conclusions regarding the matters considered 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 Tribunal is satisfied that the evidence provided regarding the trigger matter and the 2000 allegations establishes that they are serious because they involve allegations of repeated sexual acts involving children. The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The Trigger matters are alleged to have occurred in November 1993 being approximately 23 years ago and the most recent matters alleged by Daughter X were said to have occurred in November 2000, which is approximately 16 years ago. The police incident report refers to Daughter X alleging that the Respondent had been indecently assaulting her over the previous two years, which would have been since 1998, which was 28 years ago. The FACS file notes refers to her alleging that abuse had been occurring for eight to nine years previously, which would be since 1991-1992 which was 24 to 25 years ago. 2. The Tribunal is satisfied that the allegations are in respect of acts alleged to have taken place many years ago. The Tribunal is also satisfied that no formal complaints have since been made regarding CCW's behaviour towards children despite ongoing attention from FACS over the years between 1992 and 2012. 3. However, as canvassed in paragraphs 72 to 89 of these Reasons, since the earliest alleged behaviour there have been matters of concern raised regarding the conduct of CCW. These include: 1. FACS file notes record that in 1993 Daughter X said that she knew what she was talking about when she said "sex, sex sex" because was a secret between her and her Dad. 2. A FACS file note made in December 1993 which records that Daughter X was poorly dressed, sometimes smelling of urine and had been seen wandering the streets early in the mornings. CCW is reported as speaking of ripping out the "arms and legs" of those he blamed for that situation and suggested he "flog the shit" out of Daughter X. 3. In a report written in 1994, Peter Champion, a psychologist described the parenting style of CCW and his wife as being "unguarded" in respect of comments in front of the children, and as having subcultural attitudes and an "us and them" view of the world". 1. CCW gave evidence that his attitudes and his parenting behaviour have changed in the years since the report of Mr Champion. Dr Seidler expressed the view that CCW has matured and changed his lifestyle. That view is supported by CCW's involvement in the activities of his granddaughter's Girl Guides and his grandson's activities, including driving the bus for children with Downs Syndrome and their families. 2. However the following matters referred to in documents provided in the s.58 material provide evidence of some matters of concern regarding CCW's approach to matters, especially those involving matters of conflict. 1. In 2009 CCW and his brother in law were reported to have made threats to shoot each other. 2. In 2010 CCW expressed the intention of packing a baton into the school bag of his son as a response to alleged bullying. 3. In 2010 CCW is alleged to have made a threat that included reference to the death of a school principal. Whilst CCW denies that these words were directed at the school principal, and notwithstanding that no formal order was made, the FACS Officer was sufficiently concerned to advise the Principal to go home and the police were sufficiently concerned to make a provisional personal apprehended violence order. 4. A police incident report in 2012 reports that CCW attended the house of his daughter uninvited and armed himself with a shifter and chrome jack as protection in an altercation that then ensued with Daughter X's partner. 1. Weight has been placed on the fact that CCW has had the care of his grandchildren following a consent order of the Family Court in 2011. The Tribunal is of the view that this is a significant factor in favour of CCW. However of concern, though of less weight, are the following matters raised in relation to his care of children: 1. In allegations made in 2010 but later retracted, Daughter X said that her son and her younger siblings alleged that CCW had grabbed her son by the arm and had thrown him to the end of the hallway and that her son had said that CCW went around the house naked. She further alleged that her children alleged that CCW placed a toothbrush in the bottom of another child. 2. As noted above, Daughter X has retracted allegations made against CCW. However since she initially made the allegations, Daughter X has been inconsistent in sworn and unsworn statements about the allegations. The Tribunal is of the view that the inconsistency is such that it can place limited weight on both the making and the retraction of the allegations. 3. In 2012 a FACS Placement assessment recommended against authorising CCW and his wife as carers. The age of the person at the time the offences or matters occurred; 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; The difference in age between the victim and the person and the relationship (if any) between the victim and the person; Whether the person knew, or could reasonably have known, that the victim was a child 1. The Tribunal refers to the evidence on these matters set out in paragraphs 92 to 96 above which it accepts. 2. The Tribunal is satisfied that there was a significant age difference between CCW and both the complainant in the trigger matters and Daughter X. 3. The Tribunal is also satisfied that CCW knew that the complainant in the trigger matter and Daughter X were children. 4. The Tribunal is satisfied that the alleged victims were vulnerable due to their age, the difference in ages between them and CCW and the child/parent nature of their relationship with CCW. 5. In her report Dr Seidler comments that if the allegations against CCW are true, then children being in his care is a risk factor in assessing potential future risk. The Tribunal is satisfied that this is the case if the allegations are true. The current age of the person 1. CCW is currently 59 years old. Dr Seidler comments that risk reduces with age. However the Tribunal was not provided with evidence as to how that general principle relates specifically to CCW. The Tribunal is not able to evaluate how CCW's current age might affect the risk posed to children. 2. Dr Seidler is of the view that CCW has matured in recent decades. As noted above, whilst the Tribunal is satisfied that CCW is exhibiting more pro-social attitudes in his involvement with the activities of this grandchildren it is less certain about the level of his maturity when taking into account his actions in respect of the altercations with his brother in law and the partner of Daughter X as well as his responses in relation to the school bullying and his comments about the school principal. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. CCW has a lengthy criminal record and a prior involvement with a motorcycle gang. It is in his favour that with the exception of a low range PCA matter he has not been arrested since his arrest for the trigger matters. 2. In 1994 a psychologist commented to the effect that CCW and his wife held subcultural attitudes and an "us and them" view of the world". During the hearing CCW said that at the time of that assessment he was of the view that the family should deal with issues initially rather than seeking the assistance of counsellors but that he has now changed his view and believes that if a person needs help, he should ask for it and that nowadays, if it were recommended to take a child to counselling he would do so. 3. Dr Seidler is of the view that since leaving the motorcycle gang CCW has become increasingly responsible and has engaged pro-socially in the community. Whilst under cross examination Dr Seidler maintained that view despite the matters involving the school principal and his brother in law which are outlined in the preceding paragraph. She said that in her view, if those events reflected a predisposition to violence it would be likely that this would be evidenced in other ways such as hitting the children or physical aggression at events such as a football match. 4. Whilst CCW appears to have developed attitudes that are more responsible and pro-social than those he held when he was younger, the Tribunal is of the view that there is cause for concern when taking into account his altercations with his brother in law and the partner of Daughter X and his responses related to the school bullying incident and his comments about the school principal. The Tribunal is of the view that these matters cast doubt on CCW's ability to deal with situations of conflict in which he feels angry or frustrated. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. The Tribunal is of the view that the matters alleged in the trigger matters and the 2000 matters, being serious sexual assaults committed by a person in authority over vulnerable children, would have serious adverse effects on children if they occurred in the future. 2. CCW denies the allegations that comprise the trigger matters and the 2000 matters. 3. If the Tribunal is satisfied that the trigger matters and the 2000 matters did occur then they are important matters to take into account in assessing the risk to children posed by CCW. However taking into account CCW's denial that these events occurred and the fact that that CCW has not been convicted of any of the relevant matters, and also taking into account that the complainants have retracted their allegations, and despite the fact that Daughter X has at times remade the allegations, the Tribunal is not satisfied on the available evidence that the matters alleged did take place. 4. If the Tribunal were satisfied that the events referred to in those allegations did not occur then those matters could be put aside as matters going to whether or not CCW poses a risk to children that it greater than any person. 5. For the following reasons, the Tribunal is not satisfied, on the balance of probabilities, that the matters alleged in the trigger matters and the 2000 matters did not take place. The Trigger matters 1. The jury was unable to return a verdict at the trial of CCW for the trigger matters and therefore was not satisfied of his guilt to the standard required for a criminal conviction. However the test to be applied by this Tribunal is the balance of probabilities. 2. Whilst CCW was not convicted of the trigger matters, the Tribunal believes it is relevant that following their investigations the police were of the view that there was sufficient evidence to charge CCW with the matters and subsequently the Director of Public Prosecution formed the view that the evidence was sufficient to take the matter to trial. 3. At the time the trigger matters were relisted for trial, the complainant was yet to turn 14 years old and had already given detailed evidence. The DPP advice is that the complainant chose not to continue because further participation would be emotionally damaging. 4. The documentary evidence of the withdrawal of the allegations by the complainant in the trigger matters is an undated and possible incomplete statutory declaration signed by him for a purpose other than the current hearing. 5. Material contained in the FACS documents provided as part of the s.58 documents refer to the complainant in the trigger matters receiving counselling for sexual assault committed by CCW. 6. In respect of references to the complainant receiving counselling the Tribunal notes that according to material submitted at the trial of CCW, the complainant alleged that he had been sexually abused some years prior to the allegations made against CCW. The Tribunal accepts counselling could be in respect of the effects of sexual abuse generally, but notes that the FACS record specifically refers to counselling in respect of sexual assault committed by CCW. 7. In his interview with FACS staff, his statements to the police and in his evidence at the trial of CCW, the complainant in the trigger matters provided detailed and consistent descriptions of the alleged events. 8. The Tribunal is of the view that the complainant's complaints of experiencing diarrhoea following alleged anal penetration are unlikely to have been informed by any knowledge of sexual matters. 9. FACS records indicate that: 1. The JIRT concluded that the matters were substantiated. 2. The complainant was removed from the house of CCW. 1. Taking into account the evidence put to the Tribunal whilst each matter might be able to be explained, the Tribunal is of the view that taken together there is evidence of sufficient weight on which to base a reasonable suspicion that the events occurred and which prevents the Tribunal reaching the conclusion that the trigger matters did not occur. 2. In relation to the 2000 matters: 1. In sworn oral and documentary evidence, CCW denies that the matters occurred. 2. Daughter X has made allegations that she was sexually abused by CCW. The initial allegations were made in 2000. 1. In a letter dated 22 July 2004 Daughter X seeks to retract allegations made "eleven years ago" accusing CCW of sexual assault. 2. In an affidavit sworn on 15 February 2010 Daughter X restates allegations of sexual assault and claims that her retraction in 2004 was related to an offer made by CCW that if she retracted the allegations he and his wife would take her son to visit her at the correctional facility where she was incarcerated. 3. In a letter dated 6 April 2010 addressed to a solicitor Daughter X retracts the allegations. 4. The Placement Assessment completed in 2012 records that Daughter X advised the author of the assessment and a social worker that she had been sexually assaulted by CCW. 5. A FACS file note in 2012 refers to a caller stating that Daughter X said she had retracted the allegations because she was worried about her children being separated. 6. In a statutory declaration dated 28 October 2014 Daughter X retracts the allegations. 7. In an affidavit filed in respect of the current matter, and in her sworn oral evidence during the hearing, Daughter X retracted the allegations. 1. The Tribunal notes that the evidence of Daughter X concerning the 2000 matters is materially inconsistent. The Tribunal must take into account the evidence of Daughter X in all its forms, including its inconsistencies, as highly relevant to the matters before the Tribunal. The Tribunal finds her evidence in respect of the 2000 matters to inconsistent and consequently is able to place less weight on it than would have been the case had it been consistent. 2. Daughter X's allegations include that CCW's sexual assault of her commenced around 1991- 1992. A file note in the FACS file dated 2 March 1993 indicates that Daughter X, then aged 7, was chanting "sex, sex, sex" and when asked if she knew what she was talking about she said "yes I do it is a secret between me and my Dad". This incident preceded the making of any allegations by Daughter X and is independent of her inconsistent evidence. 3. The report of a psychologist who examined Daughter X in 1994 notes that some of her behaviours were consistent with the behaviours of a child who had engaged in sexual relations with an adult, but were not determinative of that conclusion. 4. FACS file notes indicate that on 2 April 1998 Daughter X, then 12 years old, was said to be behaving in age inappropriate ways including describing explicit sexual acts, making explicit drawings in schoolbooks and claiming to be pregnant. The Tribunal notes that CCW said that at that time Daughter X had a boyfriend. Whilst this situation does not specifically implicate CCW the Tribunal is of the view that this contemporaneous file note supports a view in 1998 Daughter X was expressing sexual matters that were unusual for a child of her age. 1. Having regard to all the evidence and notwithstanding that only limited weight can be placed on the statements of Daughter X, the Tribunal is of the view that the evidence taken as a whole is such as to found a reasonable suspicion that the 2000 matters might have occurred and to prevent the Tribunal from being satisfied on the balance of probabilities that the events did not occur. 2. Following the reasoning of Beech-Jones J in in BKE v Office of the Children's Guardian (supra), and Office of the Children's Guardian v CFW (supra), in this matter, where the welfare of children is paramount, the Tribunal may not be satisfied that the allegations of abuse are made out but the Tribunal might conclude that the circumstances surrounding the events means that there is a risk to children. The decision in Office of the Children's Guardian v CFW (supra) establishes that this is the appropriate approach in a matter such as the one before the Tribunal where there is no onus of proof and that the Tribunal must "weigh all such reasonable suspicions in the process of determining what might happen in the future" (Office of the Children's Guardian v CFW (supra) [48]. Dr Seidler's assessment 1. In reviewing CCW's history and presentation Dr Seidler notes that he has been mainly crime free since leaving the motor cycle gang and expresses the view that CCW has become increasingly responsible and has engaged pro-socially in the community and this has been reinforced by his commitment to his family, which has been the mainstay of his routine since that time. She also comments that CCW appears to have changed from an antisocial individual to one who is apparently stable, engaged in the community and he appears to understand the need for child protection and is committed to being a responsible and mature adult. 2. As noted above, whilst the Tribunal accepts that CCW has developed attitudes that are more responsible and pro-social than those he held when he was younger, it is of the view that there is cause for concern when taking into account his altercations with his brother in law and the partner of Daughter X and his responses related to the school bullying incident and his comments about the school principal. 3. Dr Seidler also expresses the view that no concerns have been raised about the well being of the grandchildren in the care of CCW. However as noted in paragraphs 63 and 64 of these Reasons, in 2010 Daughter X made allegations in respect of CCW's behaviour to her son and as outlined in paragraph 87 of these Reasons, in 2012 a FACS assessor declined to recommend the authorisation of CCW and his wife as carers for their grandchildren because of the allegations that comprise the trigger matter and the 2000 matters. 4. Dr Seidler also lists a number of risk management strategies that CCW provided in respect of future care for or working with children. The Tribunal is of the view that in formulating this list, CCW demonstrates an understanding of risk mitigation issues. However as CCW has not worked with children since the imposition of the ban these strategies have not been tested. 5. It is in favour of CCW that the psychological assessment indicated no psychosocial instability, substance abuse or behaviour concerns and that CCW has denied a history of paedophilic or deviant sexual interests and any issues of sexual self-regulation. 6. There are a number of matters outlined by Dr Seidler as protective against any future risk posed by CCW and the Tribunal is of the view that those protective factors weigh heavily in favour of deciding that CCW does not pose a risk greater than any other person. 7. However Dr Seidler also lists risk factors that include that if the alleged events occurred, CCW has denied their occurrence and if they occurred they involved psychological coercion due to the relationship between CCW and the complainants and represent diverse and intrusive sexual behaviours. The Tribunal is of the view that these risk factors are relevant in the context of the Tribunal not being satisfied that the events did not occur. 8. In her report, Dr Seidler expresses the view that even if the allegations against CCW were true, the risks present at the time of the alleged events are no longer present, with the exception of the opportunity factor of children being present in his care. She is of the view that the primary issues in the case appear to be related to his past history of criminal behaviour and antisocial peer culture and that CCW has made significant personal changes that have resulted in him becoming a better father and husband. 9. Taking into account the matters canvassed and the views expressed at paragraphs 127 to 143 above, the Tribunal is unable to be satisfied that CCW's attitudes and behaviours have been modified to the extent proposed by Dr Seidler. Weight placed on the report of Dr Seidler 1. The Tribunal places considerable weight on the opinion of Dr Seidler which is that CCW poses a low risk of future sexual offending. However even if it were to accept each of the premises on which she bases her conclusion, the Tribunal notes that its conclusion as to the likelihood of any repetition of the alleged matters is but one of the matters listed for consideration under s. 30(1) of the Child Protection (Working with Children) Act and Dr Seidler's report is but one, albeit weighty, consideration in respect of that likelihood. CCW's current care of his grandchildren 1. The Tribunal notes that CCW has care of his grandchildren as the result of a consent order of the Family Court of Australia. However the Tribunal has no access to an assessment report provided for that hearing and is not able to assess whether all of the matters raised and considered at this hearing were canvassed by the Family Court of Australia. Therefore whilst the order of the Family Court weighs heavily in favour of concluding that CCW should not be considered to pose a risk to children, the Tribunal is not satisfied that the order is determinative of that issue in the context of this application. 2. CCW's youngest children were born in 2000 and 2001 and so are approximately 15 and 16 years old. CCW's grandchildren with whose care he is vested were born in 2004, 2009 and 2010 and so are aged approximately 12, 7 and 6. It is in CCW's favour that no allegations have been made in respect of sexual assaults of the five children under his care. Any Information given by the Applicant in, or in relation to the Application 1. In his application and oral evidence CCW spoke of the need for a WWCCC to enable him to continue his involvement with the Girl Guides organisation and as a bus driver of a bus for children with disabilities. The Tribunal is of the view that CCW's commitment to volunteering with agencies to assist children under his care is supportive of Dr Seidler's assessment that he has developed attitudes that are more pro-social than those he previously held. 2. During the hearing CCW appeared to give his evidence in a way that was direct and unsophisticated. He did not present as evasive. CCW's wife also gave her evidence in a direct manner. As noted previously, the Tribunal was of the view that the weight that could be placed on evidence of Daughter X was limited because of her history of inconsistent evidence. 3. CCW annexed references to his affidavit dated 8 October 2015. In respect of these: 1. In his reference, CCW's GP states that he has been treating CCW for more than 20 years and has never heard any complaints of child abuse. However the Tribunal notes that the allegations that comprise the 2000 matters were more recent than 20 years ago and are not referred to by the doctor. 2. Whilst the references from the Girl Guides and Early Childhood Manager attest to CCW's commitment to volunteering in ways that assist his children and grandchildren, the lack of detail provided by the referees as to their knowledge of the nature of the allegations limits the weight that can be placed on them in terms of their effect on assessing any risk posed by CCW to children. Any other matters that the Children's Guardian considers necessary 1. The Tribunal has examined the additional matters raised by the Children's Guardian in the foregoing Reasons for Decision. Conclusion 1. The issue for determination is whether, on the material before it, the Tribunal is satisfied on the balance of probabilities that CCW poses a risk to the safety of children that is greater than that posed by any person. 2. There are a number of factors that might cause the Tribunal to be satisfied that CCW does not pose a risk greater than any other person. These matters have been referred to in the preceding sections of the Reasons and include: 1. A significant period of time has passed since the allegations. 2. CCW has never been convicted of a sexual offence. 3. The Family Court consented to a care arrangement under which CCW and his wife were given care of their grandchildren. 4. Since the time of the allegations CCW has not come under adverse notice in respect of caring for children. 5. The allegations comprising the trigger matter and the 2000 matter have been retracted by the complainants. 6. CCW's criminal record since the allegations is minimal. 7. CCW was granted a working with children check clearance in 2012. 8. CCW has developed more pro-social attitudes and behaviours compared to those evidenced at the time of the trigger matters and the 2000 matters. 9. Dr Seidler is of the view that CCW represents a low risk of future sexual offending. 1. As canvassed in preceding sections of these Reasons, the Tribunal has been unable to decide that the alleged matters occurred, or that they did not occur. Accordingly, following the reasoning in the matter of BKE v Office of the Children's Guardian), and Office of the Children's Guardian v CFW (supra) the Tribunal has taken into account the circumstances of the alleged matters in determining the potential risk posed by CCW. 2. In taking into account the circumstances of the allegations as they relate to CCW, the Tribunal notes: 1. The complainant in the trigger matters provided a detailed account of the allegations that is illustrative of a knowledge of sexual matters greater than would be expected of a boy of his age. 2. The complaints of diarrhoea following alleged anal penetration are consistent with the alleged incident and would be unlikely to be otherwise known about by a boy of the complainant's age. 3. In respect of the trigger matters, the JIRT is reported to have been satisfied that the events took place, and the complainant was removed from the home of the Applicant. 4. Whilst the Tribunal has been unable to place weight on the evidence of Daughter X in respect of both the making and the retraction of the allegations, around the time of the allegations there were contemporaneous accounts of behaviours of Daughter X that suggested exposure to sexual matters. 5. Mr Champion's psychological report of 1994 describes Daughter X's behaviour as consistent with that of a child involved in sexual relations with an adult, though not determinative of that matter. 6. If the alleged events did take place, they involved psychological coercion by a person in authority, and, as commented by Dr Seidler, represent diverse and intrusive sexual behaviours. 1. The Tribunal is of the view that the seriousness of the alleged incidents, the vulnerability of the victims and the extended period over which the events are alleged as well as the psychological coercion that would have been involved in the alleged matters is such that suggest a risk to children that is greater than that of any adult preying on a child. 2. In addition to the circumstances of the trigger matters and the 2000 matters, the following matters cause concern regarding the possible risk to children posed by CCW: 1. In concluding that the trigger matters were not predictive that CCW posed a future risk to children, the assessor in the 2012 Working with Children Risk Assessment expressed the view that the medical examination of the complainant in the trigger matters did not corroborate the allegations. If the medical evidence referred to is the evidence of the medical doctor at the trial of CCW, the Tribunal does not agree with this interpretation of the medical evidence. The Tribunal's view of the medical evidence given at the trial of CCW is that the evidence was, that the actions as alleged would not necessarily have caused abnormalities that could have been detected at the time of medical examination, and therefore it could not be expected that a medical examination would have been able to corroborate the allegations. 2. Whilst the Family Court placed CCW's grandchildren with CCW the FACS documentation indicates that the court did not take the trigger matters into account because the allegations had been retracted. 3. The Placement Assessment undertaken by FACS in 2012 did not support the authorisation of CCW because of sexual abuse allegations. 4. Mr Champion's psychological report of 1994 refers to CCW and his wife having an "us and them" approach and seeking themselves as under siege from police and welfare. Whilst this observation was made some 22 years ago, the Tribunal is of the view that CCW's encounter with the principal of his son's school is consistent with that observation. 5. According to Dr Seidler, CCW's personality profile suggests that he could be impulsive. The Tribunal is of the view that CCW's behaviours in respect of the altercations with his brother in law and the partner of Daughter X, as well as his actions in relation to the school bullying incident and the school principal are consistent with such a personality. 1. This is a finely balanced matter. Taking into account all of the evidence the Tribunal is of the view there are matters of probative value that suggest that CCW does pose a risk to children that is greater than that of any person. There are also matters of probative value that would support a conclusion that the risk is no greater than that posed by any person. 2. The Tribunal is in the position of not being satisfied that the matters alleged in the trigger matter and the 2000 matters did not occur. That being the case the Tribunal is required to consider the circumstances of the allegations having regard to the possible risk to children. 3. Having embarked on that enquiry and taking into account the other matters of concern addressed in these Reasons, the Tribunal is of the view that the seriousness of the matters alleged, the age difference between alleged victims and CCW, the relationship of dependency of the alleged victims and their vulnerability are such that the length of time since the allegations, the conduct of CCW since the allegations, his current age and the assessment of risk made by Dr Seidler and the other matters raised by CCW are not sufficient to outweigh a conclusion that CCW poses a risk to children that is greater than that of any adult. 4. It follows that the orders of the Tribunal are that: 1. The decision of the Children's Guardian dated 13 July 2015 to refuse to grant the applicant a Working with Children check clearance is confirmed. 2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: 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: 25 November 2016