CCW v Children's Guardian

Supreme Court of NSW|2017-07-19|Before: Davies J, Investments P

Solicitors: Phillip A. Wilkins & Associates (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2016/384228 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2016] NSWCATAD 273 Date of Decision: 25 November 2016 Before: R Booby (Senior Member)A Limbury (General Member) File Number(s): 1510472

Background

In September 1994 the Plaintiff was tried for the offences of aggravated sexual intercourse (contrary to s 61J of the Crimes Act 1900 (NSW)), two counts of aggravated indecent assault (contrary to s 61M of the Crimes Act) and an act of indecency with a person under the age of 16 years (contrary to s 61O of the Crimes Act). The Tribunal referred to those matters in its Reasons as the "trigger matters" and for ease of reference I shall maintain that description.
The jury was unable to reach a verdict and the charges were relisted for trial in October 1996. However, prior to that trial the Director for Public Prosecutions withdrew the matters on discretionary grounds. That appears to have occurred because the complainant informed the DPP that he no longer wished to proceed on the basis that any further participation would be emotionally damaging.
The complainant was the stepson of the Plaintiff. At the time the allegations were made he was aged 11 years but he said that the abuse began when he was seven or eight years old.
The Tribunal summarised the facts of the trigger matters from the police facts sheet 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 the Plaintiff, and that the Plaintiff fondled the complainant's penis. The Plaintiff 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 and the Plaintiff fondled the complainant's penis and forced the complainant to masturbate the Plaintiff. (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 the Plaintiff forced the complainant to masturbate the Plaintiff.
In 2004 the Plaintiff swore an affidavit which annexed a statutory declaration made by the complainant. That statutory declaration was also annexed to an affidavit by a child protection case worker with Family and Community Services sworn in family law proceedings in 2010. The Tribunal noted that the statutory declaration appeared to be incomplete but the part of it that was annexed to the affidavits said this: 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
There were suggestions in the evidence, particularly from the Plaintiff and his wife (the mother of the complainant) that the allegations may have first been made because of difficulties between the complainant on the one hand and the Plaintiff and his wife on the other in an effort by the complainant to go to live with his natural father. There is other evidence noted by the Tribunal that in November 2011 the counsellor of the complainant 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 the Plaintiff.
The Children's Guardian also took into account an allegation made in 2000, and later retracted, by the Plaintiff's daughter (described in the Tribunal's judgment as daughter X) alleging that the Plaintiff had sexually assaulted her for a number of years (the 2000 allegations). It is fair to say that daughter X is and has been a fairly troubled person who not long after she made the allegations told a FACS officer on 20 December 2000 that she had made up the allegations at the suggestion of her boyfriend for the purpose of being able to do what she wished as a teenager and not to abide by her parents' wishes.
The evidence available to the Tribunal demonstrated that subsequently daughter X had again made the allegations and again subsequently withdrew them. At least part of the explanation for her inconsistencies was the situation involving the care and control of daughter X's own children who at various times have lived with and been cared for by the Plaintiff and his wife.
On 21 June 2011 a consent order was approved in the Family Court giving the Plaintiff and his wife sole responsibility for the three eldest children of daughter X born respectively in 2004, 2009 and 2010. The Plaintiff said that Family and Community Services was a party to those proceedings and did not oppose the making of that order. The Tribunal nowhere found that FACS did not oppose that order nor consented to it, but I am prepared to assume that the Plaintiff's assertion in that regard is correct.
Other matters which should be noted are these. First, the Plaintiff has a significant criminal record between 1969 and 1999 involving property offences, driving offences including PCA offences, fraud, drug offences and offences of person violence. It should be said that the offending generally involves offences at the lower end of the criminal calendar and he has had no convictions since 1999.
Secondly, in 2009 the Plaintiff and his brother-in-law were reported to have made threats to shoot each other. Thirdly, in 2010 the Plaintiff expressed the intention of packing a baton into the school bag of his son as a response to alleged bullying. Fourthly, in 2010 the Plaintiff was alleged to have made a threat that included the death of a school principal. Although the Plaintiff denied that the words were directed to the principal the FACS officer was sufficiently concerned to advise the principal to go home and police took out a provisional apprehended violence order, although that order was not ultimately pursued.
Fifthly, a police incident report in 2012 said that the Plaintiff attended the house of his daughter X uninvited and armed himself with a shifter and chrome jack as protection in an altercation that then ensued with daughter X's partner. Finally, the Plaintiff was for some years (probably in the late 1980s into the 1990s) a member of an outlaw motorcycle gang.
Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW)(the WCA) lists as an assessment requirement trigger the position where proceedings have been commenced against a person for any sexual offence committed against, with or in the presence of a child whatever the outcome of those proceedings. Whilst the commencement of proceedings in respect of the trigger matters does not disqualify the Plaintiff from holding a clearance it does result in the requirement for the Children's Guardian to conduct a risk assessment in respect of the application. Section 18(2) of the WCA 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.

Decision of the Children's Guardian

In a letter dated 13 July 2015 addressed to the Plaintiff, the Children's Guardian advises that it had decided to refuse to grant the Clearance 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 the Plaintiff stood trial in 1994 and an allegation made in 2000, and later retracted, by daughter X alleging that the Plaintiff had sexually assaulted her for a number of years. (2) The period of time since the matters and the fact that the Plaintiff has been offence free over that time, and during that time the Plaintiff has been caring for his grandchildren. (3) In 2011 both complainants restated the claims of sexual assault. (4) The Plaintiff'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. (a) 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. (b) Daughter X was 15 when she made the allegations and alleged that the matters took place from when she was 13 years old. (c) Both complainants were vulnerable due to their ages and their dependence on the Plaintiff as a caregiver. (6) The difference in age between the Plaintiff and each of the complainants and the parent-child nature of the relationship between the Plaintiff and the complainants. (7) The current age of the Plaintiff. (8) The seriousness of the Plaintiff'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. (9) The likelihood of a repetition of the matters that caused the assessment and the seriously harmful risk of a repetition of the behaviour. (10) The information given by the Plaintiff which, whilst positive, was not considered sufficient to mitigate the level of risk. (11) A 2011 Family and Community Services (FACS) placement assessment that did not support placement of the Plaintiff's grandchildren with him. (12) The fact that the Plaintiff was provided with a clearance in 2012, but the matters considered at that time were different from those currently considered and did not include reference to the 2000 allegations.
The Children's Guardian concluded that the Plaintiff posed 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 the Plaintiff.

The decision of the Tribunal

The decision of the Tribunal is a lengthy one extending to 191 paragraphs. It is not necessary to set out all of the judgment but, to understand the submissions made, I shall set out the important passages.
The Tribunal dealt first with the statutory power and the legal principles involved in making decisions under the WCA (paragraphs [1] to [36]). It summarised the matters taken into account by the Children's Guardian (paragraphs [38]-[39]). It summarised the background to the appeal including the trigger matters and the 2000 allegations, making detailed reference to many documents produced in evidence whilst assessing the matters to be taken into account under s 30 of the WCA (paragraphs [40]-[106]). The Plaintiff relied on a report from a psychologist, Dr Katie Seidler dated 8 March 2016. The Tribunal discussed that report and Dr Seidler's oral evidence (paragraphs [107]-[114]). It discussed the information provided by the Plaintiff (paragraphs [115]-[120]) and the submissions made to the extent they are not identified at other places in the judgment (paragraphs [121]-[128]).
In a section headed "Conclusions regarding the matters considered" the Tribunal said this: 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 [129] 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 [130] 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. [131] 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. [132] 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 (sic) 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". [133] 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. [134] 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. [135] 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 [136] The Tribunal refers to the evidence on these matters set out in paragraphs 92 to 96 above which it accepts. [137] The Tribunal is satisfied that there was a significant age difference between CCW and both the complainant in the trigger matters and Daughter X. [138] The Tribunal is also satisfied that CCW knew that the complainant in the trigger matter and Daughter X were children. [139] 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. [140] 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 [141] 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. [142] 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 [143] 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. [144] 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. [145] 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. [146] 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 [147] 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. [148] CCW denies the allegations that comprise the trigger matters and the 2000 matters. [149] 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. … [151] 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: (a) The JIRT concluded that the matters were substantiated. (b) The complainant was removed from the house of CCW. [152] 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. [153] 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. (a) In a letter dated 22 July 2004 Daughter X seeks to retract allegations made "eleven years ago" accusing CCW of sexual assault. (b) 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. (c) In a letter dated 6 April 2010 addressed to a solicitor Daughter X retracts the allegations. (d) 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. (e) 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. (f) In a statutory declaration dated 28 October 2014 Daughter X retracts the allegations. (g) In an affidavit filed in respect of the current matter, and in her sworn oral evidence during the hearing, Daughter X retracted the allegations. (3) 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 [be] inconsistent and consequently is able to place less weight on it than would have been the case had it been consistent. (4) 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. (5) 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. (6) 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. [154] 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.
The Tribunal then made reference to what Beech-Jones J said in BKE v Office of the Children's Guardian [2015] NSWSC 523 where the Tribunal may not be satisfied that allegations of abuse are made out but nevertheless conclude that there remains a risk to children. Thereafter, the Tribunal considered again Dr Seidler's assessment concluding as follows: [164] 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 [165] 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.
The Tribunal then commented on the Plaintiff's care for his grandchildren as follows: [166] 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. [167] 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.
The Tribunal seemingly accepted (at [169]) that the Plaintiff and his wife were honest witnesses and commented on two references provided for him. The Tribunal's overall conclusions were these: [173] 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. [174] 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. [175] 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. [176] 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. [177] 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. [178] 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. [179] 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. [180] 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.

Grounds of appeal

The grounds of appeal set out in the summons filed 22 December 2016 are as follows: 1. The finding of the tribunal is unreasonable or cannot be supported by the evidence. 2. The Tribunal erred in failing to be satisfied that the Family Court order is determinative of whether the Plaintiff poses a risk to children in circumstances where: a. The Department of Family and Community Services were a party to those proceedings and consented to orders placing his grandchildren in his care; b. The Presiding Magellan Judge of the Family Court of Australia determined the orders to be in the best interests of the children; c. Any assessment by the Department of Family Community Services post the making of these orders in 2011 that reference the risks associated with the trigger matters should be disallowed on the basis that the allegations were known to both the Department of Family and Community Services and the Family court at the time the orders were made and there was no change in circumstance to warrant a change to those orders or re-consideration of the plaintiff as a carer for those children. 3. The Tribunal misdirected themselves and provided inconsistent reasoning: a. in circumstances where the application of section 30 and the assessment of Dr Katie Seidler are sufficient to outweigh a conclusion that the plaintiff poses a risk to children that is greater than that of any adult; b. In circumstances where there was no evidence; c. In circumstances where weight was placed on irrelevant matters; and d. The weight of the evidence supported the plaintiffs case. 4. The Tribunal erred in failing to make a finding that the trigger events did not occur: a. In circumstances where there are matters of probative value that would support a conclusion that the risk is no greater than that posed by any person. 5. The Tribunal misapplied and misinterpreted the approach in M v M [1988] HCA 68; 166 CLR 59 in the context of risk. 6. The Tribunal erred in considering as a factor a placement assessment undertaken by the Department of Family and Community Services in 2012 in circumstances where The Department had consented to orders in the Family Court of Australia in 2011 and no change in circumstance had occurred since that date. 7. The Tribunal erred by concluding that the matters raised by the applicant are not sufficient to outweigh a conclusion that the applicant poses a risk to children that is greater than that of any adult. 8. The Tribunal erred by concluding that taking into account all of the evidence there were matters of probative value that suggested the applicant does pose a risk that is greater than any other person.
The appeal to this Court is on a question of law only: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 3, clauses 15(b) and 17(a).

Legislative provisions

Relevant portions of the WWC Act are as follows: 14 Assessment requirements A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person. 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) 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, (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 matters occurred, (i) 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, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. … 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. … 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (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, (k) any other matters that the Children's Guardian considers necessary.

Application to lead further evidence

At the outset of the hearing the Plaintiff by Notice of Motion filed 12 July 2017 sought leave to adduce further evidence in the form of a clinician's report prepared for the NSW Children's Court by Thomas Schick, clinical and counselling psychologist. It was prepared in circumstances where the Children's Court was considering the three youngest children of the Plaintiff's daughter, daughter X, and where they should be placed. The three older children were living with the Plaintiff and his wife pursuant to orders in the Family Court that the Plaintiff and his wife have parental responsibility for them.
Counsel for the Plaintiff sought to have this Court review the report of Mr Schick when considering the judgment of the Tribunal. The Plaintiff sought to justify the admission of the further evidence on the basis of r 50.16 Uniform Civil Procedure Rules 2005 (NSW) which relevantly provides: 50.16 Conduct of appeal (1) If the decision under appeal has been given after a hearing, the appeal is to be by way of rehearing. (2) The higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, and (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (3) The higher court may receive further evidence. (4) Despite subrule (3), where the appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds.
Rule 50.16 does not apply to all appeals to the Court. If an appeal is in the nature of a strict appeal the sole duty of the Court is to determine whether error has been shown on the part of the Court below. In such circumstances the appeal court is not engaged in a re-hearing and the Court's task is not to decide where the truth lies as between the competing versions of the parties: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [32]; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [17]-[19], [68], [111]-[112] and [290]. The position is a fortiori where the appeal is on a question of law alone. The appeal to this Court from the Tribunal is an appeal on a question of law only. A consideration of fresh evidence would involve this Court making a merits review of the Tribunal's decision and dealing with questions of fact.
Leave to adduce fresh evidence should be refused.

Submissions

The Applicant grouped various grounds of appeal together and I shall adopt a similar course.
In relation to grounds 1 and 3, the Plaintiff placed considerable emphasis on what was said to be the inconsistency between the Tribunal's findings at [149] where it was not satisfied that the trigger matters and the 2000 matters did take place and at [151] where it was not satisfied that they did not take place. The Plaintiff submitted also that the conclusion reached by the Tribunal at [164] is flawed because it failed to provide any reasons how it reached that conclusion. To the extent that it reached that conclusion based on the matters in paragraphs [127]-[143], those matters are inconsistent with the finding at [164] and the finding is inconsistent with the determination in [133]. The Plaintiff submitted that for the Tribunal to have taken into consideration the matters raised at [175] it must follow that the Tribunal accepted the matters contained within [151] and [153] as having occurred on the balance of probabilities. The Plaintiff submitted that the consideration at [177(1)] presupposed that the Plaintiff was causative of the matters contained therein especially in circumstances of the conflict between the findings at [149] and [151].
In relation to grounds 2 and 6, the Plaintiff in his written submissions said that the Tribunal failed to place sufficient weight on the orders made by the Family Court on 21 June 2011. The Plaintiff submitted that because the Family Court of Australia had to have regard to the best interests of the children it must have taken into account the exposure of the children, inter alia, to family violence. The Plaintiff submitted that it was not open to the Tribunal to decide that the making of the consent orders in the Family Court was not determinative of the issue that the Plaintiff should not be considered to pose a risk to children. Further, the Tribunal placed little, if any, weight on the fact that the Department of Family and Community Services consented to the orders where the Minister knew or was aware of the trigger matters and the 2000 matters.
In relation to grounds 4, 5, 7 and 8 the Plaintiff submitted that in finding that the Plaintiff posed a risk to children that is greater than that of other persons the Tribunal made an error and misapplied s 18(2) of the Act. Somewhat inconsistently with his submissions in relation to grounds 1 and 3, the Plaintiff submitted that even if no such positive finding could be made that the trigger matters and the 2000 allegations occurred, the Tribunal was still obliged to consider questions of risks that might be indicated by all of the facts. The Plaintiff then submitted that the Tribunal placed too much weight on the statement of Dr Seidler that if the allegations against him were true then children being in his care was a risk factor. Further submissions made by the Plaintiff in relation to these grounds concerned how much weight the Tribunal gave to various matters.
The Plaintiff submitted that the Tribunal did not provide adequate reasons and that there was nothing in its reasons to indicate that it approached the task in the manner identified in M v M (1988) 166 CLR 69; [1988] HCA 68 and in BKE v Office of Children's Guardian & Anor [2015] NSWSC 523.
The Plaintiff submitted that the Tribunal applied a test of "reasonable suspicion" and arbitrarily created a bar that was too high and unreasonable for the Plaintiff to meet. The Plaintiff submitted that there were no reasons nor any conclusions to demonstrate that the Tribunal had embarked on a process to determine whether it weighed all or any reasonable suspicions in the process of determining what might happen in the future. Finally, the Plaintiff submitted that although the Tribunal said at [178] that the matter was a finely balanced one and that it weighed up the various factors, the Tribunal did not say how it weighed up those factors.
The Defendant submitted in relation to ground 1 that it would have to be found that the decision was so unreasonable that no reasonable Tribunal could have made it. The Defendant submitted that there were no inconsistent findings. Rather, the tribunal had correctly applied M v M and BKE.
The Defendant submitted that most of the grounds dealt with errors of fact and not law. The question of weight was one of fact. The Defendant submitted that the tribunal provided adequate reasons, and that the Plaintiff's approach was to examine particular paragraphs in isolation from the whole judgment.

Ground 1: The finding of the tribunal is unreasonable or cannot be supported by the evidence.

Ground 3: The Tribunal misdirected themselves and provided inconsistent reasoning:

a. in circumstances where the application of section 30 and the assessment of Dr Katie Seidler are sufficient to outweigh a conclusion that the plaintiff poses a risk to children that is greater than that of any adult.;

c. In circumstances where weight was placed on irrelevant matters; and

d. The weight of the evidence supported the plaintiff's case.

The Plaintiff's complaint about inconsistent findings made in both his written and oral submissions appears to misunderstand the task required of the Tribunal. In BKE, Beech-Jones J said: [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.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406 Harrison J said: [13] The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. [14] The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. [15] The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best 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 came about, will have a detrimental impact on the child's welfare." [16] Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. [17] A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.
For the reasons I gave in Children's Guardian v CKF [2017] NSWSC 893 at [52] - [56] I respectfully disagree with Harrison J's assertion at [16] of CFW that "a lingering doubt or suspicion" should count against the defendant as a starting point. For present purposes that approach can only favour the Plaintiff. It does not otherwise detract from the approach Harrison J explains must take place in assessing risk.
There was no inconsistency in the findings of the Tribunal in the present case at [149] and [151]. They were unable to be satisfied positively that the trigger matters and the 2000 allegations occurred or did not occur. They were left with a doubt or suspicion. The obligation was then on the Tribunal to assess all the evidence to decide if there was a real and appreciable risk as was explained in Commission for Children and Young People v V [2002] NSWSC 949, that is, a risk that is greater than the risk of any adult preying on a child.
Nor was there any inconsistency, as the Plaintiff alleges, between what appears from paragraphs [127] to [143] and the conclusion expressed at paragraph [164]. It should first be noted that paragraphs [127] and [128] record the submissions of the Children's Guardian. Similarly, paragraph [133] is not a determination as the Plaintiff asserts but a record of a submission made by the Plaintiff with, perhaps, a limited agreement by the Tribunal. However, the Tribunal thereafter discussed matters which suggested the contrary of what the Plaintiff submitted at paragraph [133].
There is no basis for concluding, as the Plaintiff submitted, that by raising the matters at paragraph [175] the Tribunal must have found on the balance of probabilities that the matters it identified at paragraphs [151] and [153] occurred. There is much force in the Defendant's submission that the Plaintiff has focused on individual paragraphs in the judgment for criticism without having regard to the whole of the judgment.
To the extent that it is alleged that the finding of the Tribunal was unreasonable or cannot be supported by the evidence, it is apparent from the careful judgment of the Tribunal that there were a number of matters capable of supporting the ultimate conclusion to which the Tribunal came. It is sufficient to refer [175]-[177] of the Tribunal's reasons to demonstrate that there was evidence capable of supporting the Tribunal's conclusion. In that way it cannot be said that the decision made was so unreasonable that no reasonable tribunal could have made it.
As far as ground 3 is concerned, I asked counsel for the Plaintiff in what way he submitted the Tribunal misdirected themselves and he said that the heart of the ground was not necessarily that the Tribunal misdirected themselves but, rather, that it provided inconsistent reasoning in its findings in [149] and [151]. Further, it is apparent from the wording of ground 3 alone that the real challenge to the Tribunal's conclusion relates to the weight that was to be given to particular aspects of the evidence. What weight a tribunal gives to evidence is not a question of law but a question of fact. This difficulty was at the heart of most of the grounds of appeal in the matter.
In R L & D Investments P/L v Bisby & Anor [2002] NSWSC 1082; (2002) 37 MVR 479 Kirby J said: [12] In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ considered the nature of an appeal on a question of law. He distilled from the authorities a number of propositions. Relevantly, he said this (omitting references): (at 138) "(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law." [13] The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1; Haines v Leves & Anor (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; SRA v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated: • First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding. • Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155). • Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White (1966) 116 CLR 644, at 654). • Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5).
In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Kirby P, having considered a number of English and Australian authorities, said (at 151): What follows from this review concerning the test that should be applied in this Court to a challenge to the process of fact-finding by the compensation judge? The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself; expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compen sation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.
Justice Glass (with whom Samuels JA agreed) said (at 155-156): To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.
In C v W [2015] NSWSC 1774 at [49] Lindsay J endorsed the following non-exhaustive list of what amounts to a question of law taken from the Appeal Panel's decision in John Prendergast and Vanessa Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]: … (1) Whether there has been a failure to provide proper reasons: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] per McColl JA (Ipp JA and Bryson AJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] and the following paragraphs, per Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing). Section 62 of the [Civil and Administrative Tribunal] Act requires the Tribunal to furnish reasons. This requirement was earlier reflected in s 49 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Recently, the Appeal Panel (Wright J, President; G Walker, Senior Member; and M Bolt, General Member) in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 said in relation to the similar provision in s 89 of the Administrative Decisions Tribunal Act 1997 (NSW) at [32]: [32] Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. (2) Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. (3) Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). (4) Whether there was a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Section 38 of the [Civil and Administrative Tribunal] Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20]. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6. It was said at [26] to [29] as follows: [26] Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J). [27] Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J). [28] Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision. [29] In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination. (6) Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... (7) Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it: Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332."
There was evidence to support the Tribunal's finding. The weight to be given to any aspect of the evidence was a matter for the Tribunal. No error of law is demonstrated.
I would reject grounds 1 and 3.

Ground 2: The Tribunal erred in failing to be satisfied that the Family Court order is determinative of whether the Plaintiff poses a risk to children in circumstances where:

a. The Department of Family and Community Services were a party to those proceedings and consented to orders placing his grandchildren in his care;

b. The Presiding Magellan Judge of the Family Court of Australia determined the orders to be in the best interests of the children;

c. Any assessment by the Department of Family Community Services post the making of these orders in 2011 that reference the risks associated with the trigger matters should be disallowed on the basis that the allegations were known to both the Department of Family and Community Services and the Family court at the time the orders were made and there was no change in circumstance to warrant a change to those orders or re-consideration of the plaintiff as a carer for those children.

Ground 6: The Tribunal erred in considering as a factor a placement assessment undertaken by the Department of Family and Community Services in 2012 in circumstances where The Department had consented to orders in the Family Court of Australia in 2011 and no change in circumstance had occurred since that date.

Although ground 2 expressly says that the Tribunal erred in failing to be satisfied that the Family Court order was determinative of whether the Plaintiff posed a risk to children, counsel for the Plaintiff drew back from that position during oral argument by saying that placing too much weight on the orders of the Family Court would be inconsistent with what is required under s 30 of the Act. That concession was properly made. For the Tribunal to regard an order of the Family as determinative would be to misunderstand its own jurisdiction. The Tribunal's obligation is to consider the matters in s 30 of WCA. Although the touchstone for the Family Court is the paramount interest of the child, the Family Court is not obliged to have regard to all of the s 30 matters. Moreover, the Family Court may, as in the present case concerning the children of daughter X, have limited options amongst which it can choose.
What the judgment of the Tribunal in the present case makes clear is that it had regard to the orders of the Family Court but said that it had no access to the assessment report provided to the Family Court. That assessment report was not put in evidence before the Tribunal, seemingly, by reason of a mistaken view that s 121 of the Family Law Act 1975 (Cth) prevented that course when s 121(9) provided a relevant exception. However, although such a report may have clarified why the Family Court made the decision it did, the Family Court order was one matter of many to be taken into account. The Tribunal took it into account in the Plaintiff's favour.
What is clear, however, from the remainder of the matters referred to in grounds 2 and 6, that the real challenge is to the weight or emphasis placed on matters associated with the making of the Family Court order. For reasons earlier given, no error of law in that way is demonstrated.

Ground 4. The Tribunal erred in failing to make a finding that the trigger events did not occur:

a. In circumstances where there are matters of probative value that would support a conclusion that the risk is no greater than that posed by any person.

Ground 5: The Tribunal misapplied and misinterpreted the approach in M v M [1988] HCA 68; 166 CLR 59 in the context of risk.

Ground 7: The Tribunal erred by concluding that the matters raised by the applicant are not sufficient to outweigh a conclusion that the applicant poses a risk to children that is greater than that of any adult.

Ground 8: The Tribunal erred by concluding that taking into account all of the evidence there were matters of probative value that suggested the applicant does pose a risk that is greater than any other person.

The main criticism that the Plaintiff directs at the Tribunal in relation to these grounds is that it said at [152] and [154] that there was sufficient weight on which to base a reasonable suspicion that the trigger events and the 2000 allegations occurred. This was said to have arbitrarily created a bar that was too high and unreasonable for the applicant to meet.
The Tribunal set out at [35] what Harrison J said in CFW at [23]-[24] and [48] and returned to what Harrison J said in the specific context of discussing the evidence of those events at [152]-[155]. It is clear that all that is being said in those paragraphs is, because the material taken as a whole left a reasonable suspicion that the events occurred, the Tribunal was not able to reach a positive conclusion that they did not occur. In that way, no bar was set which the Plaintiff had to meet. The Tribunal correctly applied what Harrison J said in CFW when coming to that view that it could not be so satisfied.
The Plaintiff does not establish that the Tribunal misapplied the reasoning of the High Court in M v M by making reference to "reasonable suspicion" in that context. No other way was suggested that the Tribunal had misapplied that decision.
Grounds 4, 7 and 8 deal with the weight that was placed on various aspects of the evidence. They do not in any sense identify an error of law in what the Tribunal did.
A reading of the Tribunal's judgment demonstrates very clearly that the matter was a finely balanced one as the Tribunal asserted in [178]. The Tribunal reviewed all of the evidence in a fair and balanced way and summarised matters that favoured the Plaintiff's position (such as at [166], [167] and [173]). Ultimately, because of the other factors which told against the Plaintiff the Tribunal could not be satisfied that the factors in favour of the Plaintiff's position was sufficient to outweigh a conclusion that the Plaintiff posed a risk to children that is greater than any adult.
The criticism that the Tribunal did not say how it weighed up matters that led to its conclusion at [180] must be rejected. Ultimately, an evaluative decision had to be reached. The weighing up of factors for and against a position ultimately reaches the point where for a decision maker the matter ultimately becomes (to borrow an expression form the criminal law) one of instinctive synthesis. To challenge that as a matter of law it is necessary to demonstrate that there was no evidence upon which the decision maker could have reached his or its evaluation. In the present case there was a considerable body of evidence.
I reject these grounds.

Conclusion

For the reasons given, I make the following orders: 1. Summons dismissed. 2. The Plaintiff is to pay the Defendant's costs.

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: 17 April 2018

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Administrative Decisions Tribunal Act 1997(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (26 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (42)