Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DAR v Children's Guardian [2018] NSWCATAD 1 Hearing dates: 27 October 2017 and 29 November 2017 Date of orders: 04 January 2018 Decision date: 04 January 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: J Anderson, Senior Member R Royer, General Member Decision: The decision of the Children's Guardian to refuse to grant the applicant a working with children check clearance is affirmed. Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 – refusal of working with children check clearance – where applicant - where applicant charged with aggravated sexual intercourse with a child - acquittal following a criminal trial - whether the applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 LA v Commissioner for Children and Young People [2012] NSWSC 1454. BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 CFJ v Children's Guardian [2016] NSWCATAD 62. CJT v Office of the Children's Guardian [2016] NSWSC 738 Children's Guardian v BRL [2016] NSWSC 1206 Category: Principal judgment Parties: DAR (Applicant) NSW Office of the Children's Guardian (Respondent) Representation: Counsel: Mr S Priestley (Applicant) Ms M Giacomo (Respondent) Solicitors: Legal Aid Commission (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2017/110922 Publication restriction: The disclosure of the name of the applicant and any victim or child (including any person who was a child at the relevant time) referred to in these reasons is prohibited. REASONS FOR DECISION 1. The applicant seeks review of the decision of the respondent (the Children's Guardian) to refuse his application for a working with children check clearance. 2. The applicant is a 51 year old man who lives in regional New South Wales. Previously, he worked as a youth worker in the community services sector. He is currently unemployed. 3. On 17 August 2016, the applicant applied to the respondent for a working with children check clearance. A risk assessment was carried out as a result of the applicant being charged in 2013 with an offence of aggravated sexual intercourse with a child (greater than 10 years and less than 14 years). On 14 March 2017, the respondent notified the applicant of its decision to refuse him a working with children check clearance. 4. On 12 April 2017, the applicant applied to the Tribunal for a review of the respondent's decision. The applicant seeks a working with children check clearance in order to resume employment and assist people in need. The working with children legislative scheme 1. The object of the Child Protection (Working with Children) Act 2012 ("the Act") is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. 2. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse.' 3. A person may apply to the Children's Guardian for a working with children check clearance. 4. A person is subject to a risk assessment by the Children's Guardian if any of the matters specified in Schedule 1 of the Act apply. 5. 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. 6. A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for review. 7. Section 30 sets out how an application under section 27 is to be determined by the Tribunal. In particular, the Tribunal must consider the following factors ("the section 30 factors"): (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) 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, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A; (k) any other matters that the Children's Guardian considers necessary. 1. In addition, pursuant to section 30(1A) the Tribunal may not make an order which has the effect of enabling a person to work with children unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. Role of the Tribunal 1. The role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian. 2. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration. Risk to the safety of children 1. The test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44]. Burden of proof 1. Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [20]-[21] and [135]. 2. The applicant has a duty to disclose all relevant material. Procedure of Tribunal 1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Civil and Administrative Tribunal Act 2013. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures, and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form. 3. In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had not been convicted of doing so. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [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. In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J noted that in determining risk the Tribunal first had to consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had "no hesitation in rejecting the allegation as groundless". His Honour explained that even if no positive finding can be made be "[the] court or tribunal is still obliged to consider the question of risk that may be indicated by all the facts, unless it is determined that the allegation is "groundless"". Evidence before the Tribunal 1. The Tribunal had before it a number of documents produced by the respondent, including records of the Courts, the Department and Family and Community Services (FACS), the NSW Police, and the Joint Investigation Response Team (JIRT), which is a specialist child protection unit comprising officers from NSW Police, FACS and Health. Documents included records of interview with the victim and applicant, and various witness statements. The documents also included a report of Dr P, a psychologist who assessed the victim and gave evidence at the applicant's criminal trial. As well, the Tribunal had before it the trial transcript. 2. Counsel for the applicant objected to the Tribunal receiving evidence as to any conclusion reached by any member of FACS, JIRT or member of the NSW Police Force unless such persons were made available for cross examination. Counsel also objected to the statement of the victim, who was also not made available for cross examination. 3. Counsel referred to the decision of Children's Guardian v BRL [2016] NSWSC 1206 and submitted that such evidence, if admitted, should only go to the fact that the allegations were made, not the truth of the allegations. 4. The Tribunal noted the reference in the FACs material to the Risk of Harm report being substantiated. The Tribunal considered that the fact that the Risk of Harm report was substantiated was both relevant and probative and should be admitted on that basis. It was open to applicant to make submissions as to the weight of the evidence in circumstances where the responsible officer was not cross-examined (and it appears no prior request for attendance was made). 5. Documents produced by the respondent in response to a request to NSW Police included a document created by Senior Constable B, a police officer attached to the Child Abuse Squad and the officer in charge of the criminal investigation into the victim's allegations. In the document, Senior Constable B expressed a view about the strength of the prosecution case and his concerns about the applicant being granted a clearance to work with children. 6. The respondent indicated that Senior Constable B was available for cross examination. The respondent also confirmed that it is the policy of the respondent not to approach the victim for the purposes of requesting attendance for cross examination during Tribunal proceedings, and accordingly had not done so in this matter. 7. During the course of the hearing, Counsel for the applicant confirmed that Senior Constable B was not required for cross examination. Counsel for the applicant also confirmed that he was not making a request that the victim be made available for cross examination. 8. The Tribunal is not bound by the rules of evidence. The restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. 9. The Tribunal considered that the evidence of Senior Constable B was both relevant and probative. Senior Constable B led the criminal investigation into the allegation and interviewed a number of witnesses including the victim and the applicant. He also gave evidence at the applicant's trial. It is apparent that Senior Constable B played an important role in the matter and had the opportunity to consider much of the evidence firsthand. The Tribunal formed the view that Senior Constable B's evidence was relevant to the matters being determined by the Tribunal and should be admitted. Of course, his evidence is not to be relied upon in isolation. Nor should such evidence be considered in any way to be determinative of the issues. Rather, it is a matter for the Tribunal to determine the strength or otherwise of the allegation based on all of the material before it, including all primary records. However, it should not be the case that the Tribunal is restricted from considering the evidence of a police officer who led an investigation into an allegation which is at the very core of the issue in dispute; and ultimately caused the refusal of the applicant's application for a clearance. 10. Taking into account the applicant's election not to cross examine the witness despite the witness' availability, and having regard to the object of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal was satisfied that the evidence of Senior Constable B was relevant and probative, and was admitted into evidence accordingly. 11. Furthermore, the Tribunal accepted the respondent's submission that the facts in Children's Guardian v BRL were materially different from the current matter and can be distinguished readily. In the former matter, the victim had provided two statements detailing her allegations to police, but at an early stage of the criminal trial refused to continue her evidence. There was no case to answer and the jury was discharged without taking a verdict. This is to be contrasted with the current matter, in which the victim gave evidence and was cross examined across three days of the criminal trial. In this sense, the victim's allegation was tested extensively. Therefore, the Tribunal admitted into evidence the statement of the victim without the restriction contemplated in Children's Guardian v BRL. 12. The applicant relied upon his application, an affidavit prepared for the purposes of the Tribunal proceedings, affidavits of Ms C and Ms G, and a report of Dr Lennings, Clinical Psychologist. The applicant, Ms C, and Dr Lennings were cross examined by the respondent. 13. On the day of the hearing on 27 October 2017, the applicant sought to tender a bundle of documents produced under summons. The majority of the material related to FACS' dealings and police involvement concerning the victim's family members, including: * an older sister, Ms A, and Ms A's young child who was in the care of the victim's mother and the applicant for a period of time; * an older brother, Mr M, who had significant behavioural issues, including highly sexualised behaviour; with reports from 2001, 2004 and 2005; * an older sister, Ms B, who experienced mental health issues in 2006. 1. Counsel for the Applicant submitted that the documents go to the contextual setting in which the victim lived and the experiences and influences to which she was exposed; which included violence within her family, sexualised behaviour of her older brother, and alienation of the applicant by the victim's mother. Counsel further submitted that the documents amplify the evidence given by the psychologists at the applicant's criminal trial; going to both explaining the victim's self-harming conduct and providing the basis of the alternative reasons why the allegation may have been falsely made by the victim. 2. Certain of the documents were admitted into evidence without objection. However, a number of the documents sought to be tendered were the subject of objection by the respondent. 3. The Tribunal is cognizant that it is not bound by the rules of evidence and that it is to act with as little formality as the circumstances permit. However, the relevance and probative value of many of the summonsed documents was difficult to ascertain. Whilst the documents indicate certain problematic behaviours and volatile relationships between members of the victim's family, there is insufficient evidence to connect those matters to the victim and her account of the trigger matter. It is not known for example, the extent to which the victim had observed or been influenced by such behaviours and incidents, many of which appear to have taken place several years prior to the trigger matter. It is also noted that whilst not a barrier per se to its reception into evidence for the purposes of the Tribunal proceedings, none of the specific evidence appears to be have been relied upon by the applicant during his criminal trial. 4. Moreover, it was not in dispute that the victim's self-harming behaviours could have arisen as a result of factors other than the sexual abuse alleged by the victim. This was conceded by the two psychologists who gave evidence at the applicant's trial. Noting that a number of the summonsed documents contained personal details about other children and young people who were not witnesses and did not play any significant role in the criminal investigation and trial, the Tribunal could not be satisfied that the evidence was relevant and sufficiently probative so as to admit it into evidence. Therefore, with the exception of the documents to which no objection was made, the Tribunal refused to admit the summonsed material sought to be relied upon by the applicant. SECTION 30 FACTORS (a) The seriousness of the matters that caused a refusal of a clearance 1. The applicant was charged with having sexual intercourse with his daughter, who was 11 years old in December 2009 when the offence is alleged to have occurred. 2. At the relevant time, the victim and her two younger sisters were staying with the applicant in his home during a weekend access visit. It is alleged that the applicant entered the bedroom where the victim was alone reading a book. The applicant is alleged to have asked the victim if he could stay in her room as the heater in his room was not working. The victim agreed and the applicant got into the victim's bed and proceeded to tickle her neck and chest with his hand. According to the victim, the applicant then began thrusting his pelvis into the victim's back, to which the victim said "What the hell, dad?" and pushed the applicant's arm away. According to the victim, the applicant looked her in the eye and then pushed her down by the shoulders so she was flat on her back on the bed, and pulled the victim's nightie up to her chest. The victim states she attempted to push her nightie down and alleges the applicant told her not to move, stood back from the bed and removed his pants and underwear. According to the victim, she was terrified and moved against the bedroom wall. However, the applicant grabbed the victim by her arm and pulled her to the middle of the bed. According to the victim, the applicant got onto the end of the bed sitting on his knees, grabbed the victim by her thighs and pulled her over to him and onto his hips. The applicant rubbed his penis up and down the victim's crotch and put his erect penis into the victim's vagina, and proceeded to have penile-vaginal sexual intercourse with the victim. 3. According to the victim, she was frozen with fear and did not move or scream while the assault occurred. The following day, the victim and her sisters returned to their mother's home. On the next access visit with her applicant, the victim alleges she tried to discuss what had happened on the previous occasion, however, the applicant immediately responded "Yeah it didn't mean anything". 4. In 2011, the victim stopped going on regular access visits to the applicant's residence. 5. In 2012, the victim's mother noticed self-inflicted cuts on the victim's arms. In the same year, the victim told her friends, Miss J, Miss B and Miss V that she had been raped by her father. 6. In 2013, the victim and her sisters visited the applicant who now lived in regional New South Wales. The victim also re-established contact with her father via text message communications. During these communications, the victim, inter alia, informed her father of her self-harming behaviour. 7. In June 2013, the victim took an overdose of anti-depressant medication and was admitted to hospital. During her admission, she disclosed to an older sister and her mother that her father had raped her. A 'risk of serious harm' (ROSH) report was made to FACS which was subsequently substantiated, and a JIRT investigation commenced. 8. In October 2013, during the investigation and with police present and recording the communications, the victim contacted the applicant via text message stating "I don't understand why you keep asking me what's wrong, you know exactly what's wrong. You raped me, you destroyed me. I'm not scared of you anymore, you can't hurt me anymore. But it continues to hurt me, terrify me every day". The applicant's responses included: "What the hell are you sending me that for? Is that, is this, is that what this is about"; "What the fuck", "what the fuck", "you really think that?" "you need to get yourself some counselling… I'm going to be talking to your mother about this. Fucking hell. What the fuck"; "…you really think that? You have some sort of memory of something like that?" "What the fuck. You need to get and see a counsellor. You need to get your mother to get you to see a counsellor. O.K. you need to get your shit sorted out"; "I don't know what the fucks going on in your head but you need to get something sorted out, O.K? 1. In November 2013, the applicant was charged with the trigger offence. He was offered the opportunity to participate in a police interview. He answered a number of questions, but on legal advice he declined to comment fully on the allegation, as was his legal right. 2. The applicant pleaded not guilty to the offence and the matter proceeded to trial, during which he was legally represented. Prior to the trial, a psychologist, Dr P, assessed the victim and opined that the victim's behaviour and presentation was consistent with the offence she alleged. 3. During the trial, the victim and a number of witnesses, including Miss S, Miss B, Miss V, the victim's sisters and mother, Dr P and another psychologist gave evidence and were cross examined. The applicant also gave evidence and was cross examined. By jury verdict, the applicant was found not guilty of the offence. 4. The applicant denies that he had sexual intercourse with his daughter. 5. The charge against the applicant was extremely serious involving the rape of a child by the child's father. It is, in the Tribunal's view, within the highest range of offences against children. The act as alleged by the child victim was violent and brutal. If it did occur as alleged, is likely to have caused the child serious psychological and emotional harm. (b) The period of time since the matters occurred and the conduct of the applicant since that time 1. The alleged offence occurred approximately 8 years ago. 2. The applicant has not been charged with any criminal offences since the alleged offence occurred. (c) The age of the applicant at the time the offences occurred 1. The applicant was aged 43 years at the time the alleged offence occurred. (d) 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 1. The victim was the applicant's daughter. She was 11 years old and in her father's care at the relevant time. She was vulnerable due to her age and her inability to protect herself from her father's alleged conduct. (e) The difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant 1. The difference in age between the applicant and the victim was 32 years. (f) Whether the applicant knew, or could reasonably have known, that the victim was a child 1. The applicant was aware the victim was a child. (g) The applicant's present age 1. The applicant is 51 years of age. (h) The seriousness of the applicant's total criminal record and the conduct of the applicant since the offence occurred 1. In 2004, the applicant was charged with destroying or damaging property, for which he was not convicted, but was ordered to enter into a section 10 bond for a period of 12 months. This offending occurred in the context of an argument with his former de-facto wife (and mother of the victim). In particular, after his former de-facto wife refused to move her car to enable the applicant to access his car, using a sledgehammer the applicant struck the bonnet of the car, causing it damage. 2. From about 2008 to 2013, the applicant worked as a youth worker. During this time, there were two complaints against him. One related to the applicant's actions in restraining a young boy who the applicant feared was going to hurt others with a steel bar. The other complaint involved a 17 year old girl for whom the applicant was allocated the role of case worker. During a visit to the girl's home, the applicant asked the girl (who was wearing a low cut dress): "do you always dress like that"? The girl subsequently made a complaint, and following an investigation, the applicant was removed as the girl's case worker. 3. There is no evidence of any other complaints of inappropriate conduct during the applicant's employment. (i) The likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition 1. The applicant relied upon the oral and written evidence of Dr Lennings, Clinical Psychologist. 2. Dr Lennings stated that the most likely diagnosis for the applicant is that of Major Depressive Disorder but that at the time of assessment the impairment was only mild. Dr Lennings also said that although no personality disorder diagnosis was indicated, there were some borderline personality traits noted in the applicant's presentation, which Dr Lennings suspects underpin the difficulties the applicant has had in sustaining appropriate relationships. 3. Dr Lennings conducted a risk assessment of the applicant using various tools. On the Static 99R, which measures the risk of the person being charged with a future sexual offence, the applicant scored -1. Dr Lennings stated that this score represents the second lowest category of risk; and is below that of the average offender. In terms of absolute risk, Dr Lennings stated that for every 100 offenders with the applicant's score, two might be expected to be charged with a risk offence in the next 5 years. Using a study that compares those convicted of a sexual offence against those strongly suspected but not convicted of such an offence, Dr Lennings estimated that the risk is even lower, with the applicant having about a1/6th the risk of reoffending as compared to the average offender. Dr Lennings stated that if the allegation is not true, the applicant poses no relevant risk. 4. In cross examination, Dr Lennings conceded that although he had read the trial transcript and the evidence of Dr P, Psychologist, he had not read Dr P's report of her assessment of the victim. Dr Lennings also conceded that it was not remarkable that the victim made her initial disclosures to her friends, rather than to her mother or through formal channels. (j) Any information given by the applicant in, or in relation to, the application 1. The applicant maintains that he did not have sexual intercourse with his daughter. 2. His evidence at his criminal trial and his affidavit prepared for the Tribunal proceedings contain details about the breakdown in his relationship with Ms V, the ensuing Family Court proceedings, and the access arrangements in respect of their children. 3. At the time of the alleged offence, the applicant had been separated from Ms V for about 5 years. While undergoing cancer treatment, Ms V had moved with the children away from the area in which the applicant lived, and the children were having access visits to the applicant's home approximately every alternate fortnight pursuant to an interim order agreed to by the parties (and which became permanent in 2010). 4. At his trial, the applicant's evidence was that he could not have raped his daughter in the manner in which she alleged as he had previously undergone two knee reconstructions and was unable to kneel as described by the victim. The applicant also disputed the victim's account of the circumstances leading up to the act, indicating that by December 2009 he had packed away the heaters (including the one in the victim's bedroom). The applicant gave evidence that he believed that Ms V exercised parental alienation (which he said he could not prove) and "indirectly put (the victim) up to it". 5. During the trial, two psychologists were cross examined by the applicant's legal representative. Both conceded that the victim's self-harming behaviours could not be attributed solely to the alleged sexual abuse, and could have been caused by a variety of factors, including her parents' marriage breakdown and her mother's cancer diagnosis. 6. During his assessment with Dr Lennings, the applicant told Dr Lennings that there were two possible reasons for the allegations: (1) that somebody may have molested the victim and she (the victim) is scapegoating him; and (2) that sexual abuse allegedly runs in the mother's family and he believes that Ms V has simply planted seeds in the victim about this as a form of parental alienation. The applicant told Dr Lennings that the victim had some issues at the time that the allegation was made around self-harming and he was trying to help her so he cannot really understand why she made the allegation that she did. 7. The applicant also told Dr Lennings he believed that a sexual assault charge brought against his father alleging that his father had sexually abused one of Ms V's older children (Mr M), was a claim used by Ms V so as to minimise his contact and prevent him getting his family involved. The applicant told Dr Lennings that the sexual assault charge against his father (which was ultimately dismissed by the court) was a ridiculous case, designed to get back at him, and demonstrated a pattern of Ms V encouraging false allegations of sexual harm against his family so as to advantage her position in the Family Court. 8. In cross examination, the applicant conceded that in his criminal case he never contended that another person was responsible for the rape of the victim, and that he was simply speculating on the reasons for the victim's allegations. The applicant also admitted that the suggestion that the victim may have had a false memory of the incident was also speculation. 9. In cross examination, the applicant conceded that from 2005 to 2009, he and Ms V had equal custody of their children, that Ms V had moved away from the area in the context of her cancer treatment, and that the alternate weekend arrangements were agreed to by him. The applicant also conceded that a 2010 family report prepared for the Family Court proceedings indicated that there was no significant dispute between him and Ms V; and that Ms V indicated that if anything happened to her she wanted the applicant to care for the children. 10. In his affidavit prepared for the Tribunal hearing, the applicant described the problems within the household he shared with Ms V, including the problems associated with Ms A and the care of Ms A's baby, as well as the sexualised behaviours of Mr M and Ms B. It was submitted that the victim's exposure to the environment and those behaviours may have been factors in her self-harming conduct, which could not be solely as a result of the alleged sexual abuse. 11. The applicant also relied upon the affidavit evidence of Ms G, a former manager who worked with the applicant for a five month period in 2013; and Ms C, a friend for about 25 years. Ms G stated that the applicant was a skilled and experienced youth worker who was professional in his dealings with young people with challenging (including sexualised) behaviours. Ms C stated that the applicant babysat her now adult children over the years on about 8 or 10 occasions during which she had no concerns about leaving her children in the applicant's care. 12. As well, the applicant relied upon the various references and certificates submitted in support of his application for a clearance. These included character references and a reference from a treating psychologist who treated the applicant from 2013 to 2016. 13. Presently, the applicant is unemployed and in receipt of a Centrelink benefit. He does occasional volunteer work for an organisation supporting fathers. He is not in a relationship and has no contact with his daughters. He seeks a working with children check clearance to enable him to move on with his life and to be able to assist people in need. 14. Counsel for the applicant submitted that the whole case rests on the word of the victim who was an extremely disturbed girl, versus the word of the applicant, and that the Tribunal should have no difficulty in finding that the offence did not occur. Counsel further submitted that in the event that the Tribunal finds some basis to believe the offence might have occurred, then the Tribunal should have regard to the evidence of Ms G, Ms C and Dr Lennings, and take into account the 8 year period that has elapsed since the matter occurred and the low risk of recidivism. (j1) Any relevant information in relation to the person that was obtained in accordance with section 36A 1. The Tribunal is not aware of any relevant material exchanged between the respondent and its counterparts in other jurisdictions. (k) Any other matters that the Children's Guardian considers necessary. 1. The respondent opposes the applicant's application. The respondent submitted that there is insufficient evidence to support the suggestion that the victim had a false memory of the events in 2009, that there was an alternative perpetrator involved, or that the victim's mother had planted the seed in the victim as a means of parental alienation. The respondent submitted that it is available to the Tribunal to make a positive finding that the applicant engaged in sexual intercourse with the victim as alleged. 2. Counsel for the respondent also submitted that a reasonable person, having knowledge of the evidence, including the victim's disclosures, would be very concerned and would not want the applicant working unsupervised with his or her child. Conclusion 1. The Tribunal acknowledges that in 2016 the applicant was acquitted of the charge against him. However, it is important to note that the criminal proceedings and the Tribunal proceedings are materially different. At the criminal trial, the jury was tasked with finding whether the elements of the criminal offence with which the applicant was charged were proved beyond reasonable doubt. In that case, the jury was not so satisfied and returned a verdict of not guilty. The Tribunal cannot and should not speculate on the reasons for that result. 2. However, the role of the Tribunal is not to determine whether the applicant is guilty or not guilty of the offence with which he was charged. Rather, the role of the Tribunal is to review the decision of the respondent to refuse the applicant a working with children check clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and applicable law. 3. The material includes material which may not have been admitted into evidence during the applicant's criminal trial. The applicable law includes the Child Protection (Working with Children) Act 2012, which provides the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. 4. The Tribunal had before it considerable documentary evidence, including records of interview, witness statements, and the transcript of the trial. The victim was cross examined across three days. The victim's mother and the three friends to whom the victim disclosed the allegation also gave evidence. 5. Having considered that material and all of the other evidence before it, the Tribunal finds that the victim has maintained a consistent account of the incident in 2009. The Tribunal acknowledges that the victim's disclosures to her friends, and/or their recall of those disclosures, contained some inconsistencies. However, the Tribunal finds that those differences were not so material that they suggested fabrication by the victim, but rather were generally consistent with the victim's complaint that she was raped by her father in his home. The victim's account to investigators and her evidence before the court were also consistent and, in the Tribunal's view, not diminished by cross examination. 6. The Tribunal accepts that the victim's self-harming behaviour cannot be linked exclusively to the alleged sexual abuse, and that there may be a multitude of reasons for the victim's behaviour. However, the Tribunal formed the view that the victim's account of the event in December 2009 was credible and was not significantly challenged. In the Tribunal's view, the applicant's contention that parental alienation exercised by the victim's mother contributed to the making of the victim's allegation was not borne out by the evidence. Whilst the mother may well have spoken badly of the applicant, there was limited evidence to suggest that this was done in order to effect parental alienation. And although it is apparent that the relationship between the applicant and the victim's mother was acrimonious and necessitated Family Court proceedings, the evidence indicates that agreement had been reached by the applicant and the victim's mother in relation to access to the children and the mother had expressed a wish that the children to be cared for by the applicant in the event that she was unable to do so. 7. In addition, the Tribunal notes that the victim had reached the age of 17 at the time of the trial, and had continued to maintain her account of what occurred over a period of 4 years. One may think that by the age of 17 the victim had considerably more authority to make her own decisions and choices about her relationship with her father, and her participation in criminal proceedings against him. Similarly, although not raised at his trial, the applicant's contention (which was not pursued during oral submissions in the Tribunal hearing) that there was an alternate perpetrator who committed the offence was not substantiated by the evidence. There was also a lack of evidence to indicate that the victim suffered from a false memory or factitious disorder. 8. Taking into account all of the material before it, on the balance of probabilities the Tribunal finds that the applicant had sexual intercourse with the victim as alleged. 9. However, if the Tribunal is incorrect in finding on the balance of probabilities that the behaviour occurred then the Tribunal is satisfied that there is nonetheless an unacceptable risk of harm. That unacceptable risk of harm can exist independent of a finding on the balance of probabilities: BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children's Guardian v CFW [2016] NSWSC 1406. 10. In this regard, the allegation is very serious in nature and at the higher end of the range of offences against children. The victim has maintained over a lengthy period of time a generally consistent account of what occurred; having made disclosures to her friends, family members, health professional/s and investigators. She has also been cross-examined at length during a criminal trial. The Tribunal does not consider the victim's allegation to be groundless, and having regard to the circumstances, the Tribunal is satisfied that there is an unacceptable risk to a child. 11. The Tribunal takes into account the expert evidence of Dr Lennings who is of the opinion that the applicant poses no relevant risk if the allegation is not true, and only a low risk of reoffending if the allegation is true. However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children. 12. The Tribunal is cognizant that that there is no evidence of any further sexually abusive conduct by the applicant other than the trigger matter. Noting that no conviction was recorded for his 2004 offence, the Tribunal finds that the applicant's criminal record is relatively minor. The Tribunal also takes into account that the applicant worked for a number of years as a youth worker without major incident and was held in high regard by a former colleague and a former manager. However, it is also noted that the manager, Ms G, worked with the applicant for a period of approximately five months only. 13. In addition, the Tribunal was also somewhat troubled by the applicant's current circumstances. According to Dr Lennings, the applicant suffers from Major Depressive Disorder. Whilst Dr Lennings is of the opinion that this disorder manifests in only minor impairment, there was limited evidence about the applicant's current pro-social pursuits. Whilst not necessarily surprising, he has no relationship with any of his children. He does not appear to have regular contact with children generally, and he does not have a current partner. He does not have any stable employment and it appears he had not had so for the last four years. 14. It was apparent to the Tribunal that the applicant feels very much aggrieved by the allegation, the actions of Ms V in the context of the breakdown of their relationship, and the legal processes that have arisen as a result of those respective matters. The Tribunal was concerned by the applicant's attitude and presentation given his desire to resume employment (which may include work with young people) and in the context of child protection generally. In this regard, the Tribunal noted the applicant's belief (as indicated to Dr Lennings) that the child sexual assault allegations against his father were ridiculous and merely a ploy by Ms V to get back at him and to assist her position in the Family Court proceedings; together with the applicant's immediate response to the victim when she accused him of the allegation, demonstrate some limited insight into the seriousness of allegations made by children about sexual assault and the appropriate responses to such matters. 15. Taking into account all of the evidence before it, the Tribunal could not be satisfied that the applicant, if working with children, would be in a position to respond and act appropriately in situations where there are signs or indicators of child abuse, and which would warrant the intervention of child protection authorities. Furthermore, the Tribunal could not be satisfied that if working with children, the applicant would be able to dispassionately and objectively manage situations and take appropriate protective steps in circumstances where a child is at risk. In coming to this conclusion, the Tribunal is mindful that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration. 16. On the whole of the material before it, and taking into account the objects of the Act and section 4 of the Act, the Tribunal was satisfied that the applicant poses a risk to the safety of children and should not be granted a working with children check clearance. 17. Furthermore, pursuant to s 30(1A)(a), the Tribunal finds that even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant while the applicant was engaged in child-related work. This is because a reasonable person knowing the matters to which the Tribunal has referred would consider that the applicant poses a degree of risk which is unacceptable to that person in terms of sexual risk. 18. Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. In light of this determination, it is not necessary to consider the application of s 30(1A)(b). However, if required to do so, the Tribunal is also satisfied, for the reasons stated earlier and having regard to the objects of the Act and section 4 of the Act, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act. ORDERS 1. Accordingly, the orders of the Tribunal are as follows: 1. The decision of the respondent dated 14 March 2017 to refuse to grant the applicant a working with children check clearance under the Child Protection (Working with Children) Act 2012 is affirmed. 2. The disclosure of the name of the applicant and any victim or child (including any person who was a child at the relevant time) referred to in these reasons is prohibited. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 04 January 2018