A mother has claimed her two-year-old daughter was sexually abused at a family daycare service by a man she did not know was living there. The alleged offender was the partner of the woman running the service, located at a private home in New South Wales.
Police, the Department of Education and the Department of Communities and Justice investigated, but the woman told Guardian Australia that, without physical evidence, no charges were able to be laid and no action was taken against the man or the service, which is still operating.
Jennifer* said her daughter Ava* was two years old and attending a family daycare centre – a service run by an individual in their home, but which still receives the federal childcare subsidy – when she started talking about interactions with a man she didn’t know. Some were innocuous, others rang alarm bells.
“It was sort of like, ‘Who is [this person]?’ It was just a bit off, it was just strange,” said Jennifer, who says she had no idea there was a man living at the home where the service operated.
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Jennifer called the woman running the centre to ask her about it.
“I, in good faith, rang [her] the next day, thinking that there would actually be an explanation for it all.”
But Jennifer said the response from the woman about the man – who was the woman’s partner – was defensive and angry, something that raised “red flags” for Jennifer, so she un-enrolled Ava.
In the months that followed, Jennifer said Ava’s behaviour changed. “She regressed in toilet training, she’d just become sort of more anxious than she’d ever been and getting scared all the time, like really bizarre stuff like screaming … which she’d never been before.”
By this point nearly three years old, Ava then disclosed that the man had exposed himself to her and he had touched her private parts, Jennifer said. Ava’s disclosures came after seeing something that reminded her of the family daycare. She told her parents that some of the incidents occurred when she was in the daycare’s sleep room.
Jennifer reported the alleged incidents to police, who investigated, taking a statement from Ava and from her parents. Ava had to undergo a medical assessment by a specialist doctor who deals with potential child victims of sexual abuse but there was no physical evidence of assault.
The man was not charged with any offences against Ava.
Jennifer said that before reporting to police, she consulted with friends in the police force, who told her that a conviction or even a charge against the man was very unlikely.
“Basically, this has been everyone’s advice the whole time: you won’t get a conviction unless she’s got an STD, or there’s semen, or physical evidence. You won’t get a conviction. But if there’s a record of investigation, it might help someone in 20 years’ time, basically. That’s what it was for … in 20 years’ time, when people start reporting things … there’s something on record.”
Jennifer praised the police and the Department of Communities and Justice, which served as a liaison with the family and organised support, including counselling, for them, but said the process was still incredibly distressing for Ava.
“She knew what was going on. She’s a pretty smart chicken. Even though she was so young, she sort of knew … she remained upset and anxious for quite some time.”
An assessment of Ava’s behaviour, from a new daycare service that Jennifer eventually enrolled Ava in, seen by Guardian Australia, said Ava “shows signs of anxiety” and an “ongoing difficulty to separate from parents” as well as “distress around sleeping”.
The education department also conducted an investigation into the childcare service after the reports were made to police but, in a summary of its findings, seen by Guardian Australia, it wrote: “There was insufficient evidence to substantiate a breach of the National Law and Regulations. Insufficient evidence to determine [the man] posed a risk to children. No further action was taken by the department. The case was closed.”
Jennifer says the department of education investigation left her with more questions. Had they looked into whether the man was present at the service when the children were there? Had they looked into whether the woman running the service left some children alone while she was getting the other children to sleep?
“Why can’t they tell us these key points?” she says. “You don’t have confidence because they don’t give you answers.
“The investigation… absolutely made me even more distrustful.”
In response to general questions about its procedures, the NSW Early Childhood Education and Care Regulatory Authority said that if a police investigation does not result in charges, the authority still conducts its own investigation and has the power to take strong action.
It said it had issued 211 prohibition notices to people working in early childhood education and care in NSW over the last four and a half years and had prosecuted 34 providers, nominated supervisors and individuals since 2021. None of the prosecutions were for incidents involving alleged sexual abuse.
Family daycare centres provide care to more than 71,000 Australian children, including around 22,000 in NSW, making up 5.1% of all early childhood education and care services.
The service Ava attended is still operating. Guardian Australia has not confirmed whether the man is still living at the premises.
Jennifer said that she was shocked to learn that family daycare centres have no regulatory obligation to inform parents of who lives at the home, although every member of a household where a family daycare operates must have a working with children check.
She says she had no idea that the woman running the service had a partner living in the home.
“It wasn’t until Ava came home and started talking about [him], and we’re like, ‘Who is [this person]?’”
Jennifer would like to see this change, to make it mandatory for all family daycare centres to inform parents of who lives at or will be present while their children are in care.
She would like to see reform to the way investigations into those working with children – or in close proximity to them – happen, so action can be taken against people who have had credible allegations made against them, even if the level of proof does not reach that required for a criminal conviction.
“That’s a hard one because, you know, you don’t want innocent people to be punished,” she said. “[But] the level of evidence required for a conviction in court is so high; for beyond reasonable doubt. And when you’ve got no physical evidence and you’ve got the words of the two-year-olds, it’s not going to stand up in court.”
But she says the Department of Communities and Justice, when it met with the family, had a more “child-centred” focus in talking about the case.
“They came to the house and sat down with us and went through everything and they were amazing and they explained how even though there’s no evidence doesn’t mean that it didn’t occur. It was just more of an open finding.
“They were more believing. And so I feel like there needs to be more of a child-centred approach … rather than a criminal approach.
“I feel like whatever the DCJ were doing felt more holistic without outright coming out and saying like, yes, he’s guilty.”
Jennifer suggested there could be a threshold of proof, lower than the criminal threshold, that allowed regulators to take actions or impose prohibitions, when there were credible allegations.
“So maybe, I don’t know, [this man] shouldn’t be in the house when she’s operating her family daycare,” she suggests.
The incident happened a number of years ago and Jennifer says Ava is, for the most part, doing well. She has friends, thrives at sport and in school, but “she has her moments, she’ll melt down and sometimes we’re like: is that part of it? Sometimes you wonder what part of the trauma carries through.”
Jennifer and her partner debate what to tell Ava about it when she is older. “That’s a real struggle for us, how do we handle this in the future? Do you want to know this when you’re older? Do we have a duty to tell her? It’s a quagmire.”
“For my partner and I, we think about it all the time. Occasionally we say to each other, ‘God, I was thinking about that today. Like, I can’t believe … I’ve been able to hold it together.’”
*Names have been changed to protect privacy
• In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is affected by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org.
