Children's Guardian v CKF

Supreme Court of NSW|2017-06-15|Before: Davies J

Solicitors: Crown Solicitor's Office (Plaintiff) Andrea Tomic Eckert Legal (Defendant) File Number(s): 2017/32560 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: CKF v Children's Guardian [2017] NSWCATAD 6 Date of Decision: 4 January 2017 Before: J McAteer (Senior Member)A Limbury (General Member) File Number(s): 1610041

Background

The Defendant is a qualified doctor who has worked extensively in Australia in emergency departments.
The Defendant's marriage of approximately 24 years ended in about April 2011. At that time the Defendant's wife made allegations of domestic violence against him.
The Defendant and his wife at that time had six children from the marriage. The four youngest children of the marriage made allegations of a sexual nature against the Defendant. Those disclosures were made in proximity to the marriage breakdown and close in time to the allegations made by the former wife.
The following allegations were reported to the New South Wales Department of Family and Community Services in 2011 and 2012: a. The Defendant placed his hand under the singlet of one of his daughters and squeezed her breasts. It was also alleged that the Defendant digitally penetrated her anus. It was further alleged that the Defendant entered the shower while the daughter was showering and undressed to his pants. b. The Defendant sexually assaulted his other daughter, asked to take off her clothes and squeezed/pinched her breasts and touched her on the outside of her vagina under her clothing. It was also alleged that the Defendant used physical force during the abuse and threatened to kill her after she told him she was going to tell her mother about the abuse. c. The Defendant touched one of his sons on the genital area on one occasion only. d. The Defendant digitally penetrated one of his other sons.
Although the investigation by Liverpool JIRT found there was no physical evidence to suggest that sexual abuse had occurred, it substantiated the allegations in regard to the daughters, and named the Defendant as a Person Causing Harm. The allegations in regard to the sons were not substantiated by JIRT.
No criminal charges were laid. An email from Detective Sergeant Natalie Lloyd of the Child Abuse Squad - Liverpool, dated 20 August 2013 stated: "... following a lengthy criminal investigation and obtaining legal advice we were advised that there was no reasonable prospect of a conviction and so the police case was suspended in early July with [the Defendant] being informed."
By application dated 4 September 2014, the Defendant applied for a Working with Children Check Clearance ("the Clearance") pursuant to s 13 of the Child Protection (Working with Children) Act 2012 (NSW) (the WWC Act).
On 11 September 2014, the Defendant was granted the Clearance, as he had no records in his criminal history and the above allegations had not been disclosed in his application (noting that there was no obligation to disclose them).
The Defendant's WWCC application was referred for risk assessment pursuant to s 15(3) of the WWC Act following receipt of a notification from the NSW Ombudsman on 23 March 2015 regarding allegations that the Defendant sexually abused four of his biological children between 2009 and 2011.
On 6 October 2015, an Interim Bar was placed on the Defendant's WWCC application given the likelihood of risk to the safety of children should he engage in child-related work pending the outcome of his risk assessment. During the risk assessment process, the Defendant provided a statutory declaration and written submissions. This information was deemed not to address sufficiently the risks identified during the risk assessment.
On 15 December 2015, the Defendant was issued with a s 23 Notice of cancellation of the Clearance. The risks identified pursuant to s 15(4) were: a. the seriousness of the matter; b. the period of the time since the matter occurred; c. the ages and vulnerabilities of the complainants; d. the differences in ages between the Defendant and the complainants; e. the Defendant knew that the complainants were children; f. the likelihood of any repetition by the Defendant of the alleged conduct and the impact on children of any such repetition.
The Defendant appealed to NCAT pursuant to s 27 of the WWC Act and the matter was heard in the Administrative and Equal Opportunity Division on 15 August 2016. The decision of the Tribunal given on 4 January 2017 was this: (1) The decision of the respondent dated 15 December 2015 to refuse to grant the applicant a clearance is set aside. (2) In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance.

The appeal

The Children's Guardian, by Summons filed 1 February 2017 and amended on 15 June 2017, seeks orders that the orders made by the Tribunal on 4 January 2017 be set aside, that the decision of the Children's Guardian to cancel the Clerance be affirmed and, in the alternative, that the matter be remitted to the Tribunal constituted by different personnel to be dealt with according to law.
The grounds of appeal are these: (1) The Tribunal erred in law in that it misconstrued or misapplied s 23(1) of the Child Protection (Working with Children) Act 2012 (the WWC Act), and thereby failed to discharge the statutory functions and duties conferred or imposed by Part 4 of the WWC Act and s. 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), in that it: (a) On finding that some suspicion remains that some of the behaviour alleged against the applicant may have occurred, it impermissibly put aside those allegations in determining whether the applicant posed a risk to the safety of children; and (b) On finding that some suspicion remains that some of the behaviour alleged against the applicant may have occurred, it failed to apply the appropriate test to determine risk as set out in the decision of Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) in that it did not consider all of the facts and circumstances. (2) The Tribunal failed to have regard to a mandatory consideration imposed by s. 30(l)(a) of the WWC Act, in that it put aside the allegations made against the applicant when it considered whether the applicant posed a risk to the safety of children in circumstances where it found that some suspicion remained that some of the behaviour alleged against the applicant may have occurred. (3) The Tribunal erred at law by not giving adequate reasons for its decision.
The appeal to this Court is on a question of law only: Civil and Administrative Tribunal Act 2013 (NSW): Sch 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. … 23 Cancellation of clearances (1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children. … 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. … Schedule 1 Assessment requirement triggers 2A Notification by Ombudsman (1) A person has been the subject of a notification of concern to the Children's Guardian by the Ombudsman that, on a risk assessment by the Children's Guardian, the Children's Guardian may be satisfied that the person poses a risk to the safety of children. (2) A notification of concern is a notification made by the Ombudsman as a result of concerns arising from the receipt of information by the Ombudsman in the course of exercising the Ombudsman's functions.

The decision of the Tribunal

The judgment set out the scheme of the WWC Act, the nature of the appeal to the Tribunal, the background to the appeal, a summary of the written and oral evidence and the submissions made by counsel at the hearing of the appeal.
By reason of the submissions made at the hearing before me it is then necessary to set out the remainder of the judgment: Section 30 (1) considerations (a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar. [78] The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the matters whereby the applicant is accused of sexually assaulting his youngest children. [79] The seriousness of the allegations is significant. As the father of the children such transgressions would indicate a significant breach of parental responsibility. [80] The Applicant denies the allegations. (b) The period of time since those offences or matters occurred and the conduct of the person since they occurred. [81] The allegations relate to matters said to have occurred between 2009 - 2011. There are no prior allegations or further allegations since that time from within that family unit, his current spouse and her children, the places of work or community. There is nothing adverse attaching to the applicant's conduct on the evidence and material before the Tribunal other than the allegations. (c) The age of the person at the time the offences or matters occurred. [82] The applicant was approximately 52 to 54 years of age at the time of the alleged conduct. (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. [83] The victims in the section 30(1)(a) allegations were approximately between 5-14 years and the children of the Applicant. They were all children and the applicant was in authority (as their father), in so far as if the allegations occurred, the victims would have been especially vulnerable. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person. [84] The difference in age between the applicant and the complainants / victims was approximately 40-48 years. The Applicant is the father of the children and was 40-48 years older than the children at the time of the allegations. (f) Whether the person knew or could reasonably have known, that the victim was a child. [85] The applicant is aware that the complainant's (sic) in the allegations were children. The Applicant was the father of the children. (g) The person's present age. [86] At the time of the hearing the applicant was 58 years of age. (h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred. [87] The applicant does not have a criminal record. There are no records of allegations or misconduct in the course of his employment. There are no other complaints of a sexual nature against the applicant from family, work or community. (i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. [88] The Applicant provided a psychological report in support of his application from a Forensic Psychologist. That report concluded that the applicant posed an overall low risk to the safety of children. The report was tested during the hearing. Dr Seidler's report set out the evidence leading to the conclusion that the applicant poses a low overall risk. The risk factors and protective factors are set out at paragraphs 75-76 of Dr Seidler's Report. [89] Dr Seidler gave evidence that she did not see factors evident to be significant risk and warrant intervention in either the work or community contexts. [90] Whilst there is another report before the Tribunal, that report is not in the context of the ultimate task for the Tribunal, a risk assessment. (j) Any information given by the applicant in, or in relation to, the application. [91] The applicant tendered a detailed affidavit and an expert report in support of his application, and was subject to extensive cross-examination at hearing. In addition the applicant tendered a significant number of witness affidavits supporting his application. [92] What was considered as a biting incident was considered an inappropriate abusive response. Dr Seidler gave evidence to say that it was questionable if it related to sexual abuse. Further it occurred in a familial environment. However the applicant clarified in re-examination that his actions occurred as beating his son on the leg rather than biting him. This clarification gives a different context to the behaviour. [93] In the work setting there was evidence of a long work history with no allegations. Likewise, over a more concentrated period in a community setting, there were no adverse allegations. [94] The applicant's detailed references are supportive of appropriate behaviour and interactions with the authors and their settings. It is noted that none of these witnesses were required for examination by the respondent or their evidence open to challenge. (k) Any other matters that the Children's Guardian considers necessary. [95] The respondent obtained a report of Dr Krabman which was prepared in the context of the Family Court proceedings. [96] With regard to Dr Krabman's report there were some aspects of its clarity and usefulness that were questioned by Dr Seidler. It was not directly tested in the hearing. (See paragraphs 68, 74 and 75 above) Consideration [97] In our view the applicant was consistent in his answers. The applicant's overall denials of the conduct were consistent and withstood cross examination. [98] The Supreme Court has recently revisited the correct approach that the Tribunal should take when making a finding on otherwise unproven allegations, and then moving to the substantive consideration of risk. [99] In the matter of Office of the Children's Guardian v CFW [2016] NSWSC Harrison J. observed the following concerning the approach arising from observations made in BKE. The statutory test [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. [100] The applicant's evidence in written and oral statements are that the matters alleged did not occur. The denials were consistent and the complainant's evidence was not tested and witnesses were not required by the respondent but rather the Tribunal was taken to the material provided by Police and the Department on behalf of the respondent. [101] In our view for the reasons set out above the report and evidence by Dr Seidler should be given a larger weighting. [102] The allegations were made in the context of an acrimonious breakdown of the marital relationship. Family Court Orders made without admissions. [103] The accuracy of the daughter's allegation was brought into question as the Emergency Department Records of 12/04/2011 indicate that the Applicant was at work on the day of the alleged sexually abusive incident regarding the daughter. As such, it would be difficult for us to find that this allegation is positively found. [104] We note that many of the allegations were not substantially tested at the hearing. It would therefore appear that on the balance of probabilities that a positive finding cannot be made with regard to the remainder of the sexual allegations. [105] We observe that although questions arise about the validity of a complaint to Police on 17/09/2012 by the mother about the Applicant attempting to take his daughter from school, the Police enquiry into this found that there were no concerns about an attempt to remove the daughter from school. In our view this potentially raises questions about the credibility of the mother and level of appropriate judgement regarding her willingness to report these matters to Police. (See pages 253-254 Respondents Exhibit 'R2'.) [106] If a finding needed to be made on that matter we would find that the allegation of an attempt to remove the daughter from school on 17/09/2012 does not stand or is not made out. [107] The significant allegations described by the three children to Police by interviews remain largely untested through a hearing process. That is not to say that those witnesses should have been called, but the significant concerns about their evidence (as set out by the DPP) lead the Tribunal to have significant difficulty in reaching any positive findings in respect of the allegations. [108] However due to the number of allegations by the children and the level of disclosure by them, some suspicion remains that some of the alleged behaviour may have occurred. [109] On this basis, we are not able, on the balance of probabilities, to make a positive finding that the alleged behaviours did not occur. Therefore on many of the issues we cannot make a positive finding that the alleged behaviours occurred or did not occur. [110] For these reasons we find that (consistent with the observations of Harrison J in Office of the Children's Guardian v CFW at paragraph 48) we have explored those matters to the extent available to us at the hearing. We have set out those matters relating to the mandatory considerations above. However we are unable to make a positive finding. [111] Notwithstanding that lack of a positive finding, on the evidence before us, we are not satisfied that the Applicant poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find. [112] In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision is to set aside the decision by the Children's Guardian and that the Respondent is to grant CKF a working with children check clearance. Conclusion [113] We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons. All material has been considered however the material of the expert witness was given significant weight, having regard to the fact that their (sic) evidence was scrutinised, and that they (sic) have provided expert evidence on the substantive consideration for the Tribunal, that is whether the applicant is a risk to the safety of children. In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons. [114] For the reasons set out above, we reach the following conclusion. [115] The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children. [116] The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children. [117] We note that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. [118] In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant does not pose a risk to the safety of children. [119] It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian. Orders (1) The decision of the Children's Guardian dated 15 December 2015 to refuse to grant the applicant a clearance is set aside. (2) The respondent is to grant the applicant a Working with Children Clearance.
It is clear from a reading of the whole of the Tribunal's judgment that the reference in [113] of the Tribunal's judgment above is a reference only to Dr Seidler.
In relation to the references in the Tribunal's judgment at paragraph [96] to paragraphs [68], [74] and [75], paragraph [68] would appear to be irrelevant to what was being discussed. Paragraphs [74] and [75] record submissions by the Defendant but it is appropriate to set those paragraphs out: 74. It was submitted that the most up to date expert evidence conformably supports the conclusion that the applicant poses a low risk. It was submitted that there were valid criticisms of Dr Krabman's report in that the recommendations in that report were premised on certain assumptions. 75. It was submitted that Dr Seidler's report is more recent, it has been tested and for those reasons it should be given greater weight than the Krabman report. It was submitted that the detailed paragraph 98 and paragraph 99 of the Krabman report were two sides of the same coin, attempting to reach both different and supporting conclusions.

Submissions

The Plaintiff submitted that the error in the first ground of appeal arose by reference to the Tribunal having found "some suspicion remains that some of the alleged behaviour may have occurred" and then making no reference to how that finding impacted on the assessment of risk. The Tribunal simply put those suspicions to one side and went on to express the final opinion as to risk.
The Plaintiff submitted that what the Tribunal was required to do, on finding the existence of a suspicion that some of the alleged behaviour may have occurred, was to consider questions of risk that may be indicated by all of the facts which inherently included that suspicion. In the absence of the assessment of the risk by reference to the existence of a suspicion, the Tribunal erred in that it failed properly to assess risk as the WWC Act required.
The Plaintiff submitted that, following the judgment of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406, the Tribunal should have determined that, even if not positively satisfied that the acts occurred on the balance of probabilities, if a lingering doubt or suspicion remained then that should count against the Defendant.
The Plaintiff submitted that the Tribunal's open conclusion on the allegations suggested that there remained at least some degree of suspicion or doubt as to whether the Defendant had engaged in criminal or inappropriate conduct. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the Defendant posed a risk to the safety of children.
The Plaintiff submitted that in failing to carry out that task the Tribunal failed properly to have regard to or assess those matters that it considered to be "open", in so doing it misapplied the statutory test in s 18(2) and thereby failed to discharge its statutory functions and duties under Part 4 of the WWC Act.
In relation to the second ground of appeal the Plaintiff submitted that the Tribunal failed to give consideration to the likelihood of repetition of the alleged offending and in that way failed to consider, pursuant to s 30(1)(a) "the seriousness of ... any matters that caused a refusal of a clearance". The Plaintiff submitted that each of the matters which the Tribunal should have considered but failed to consider bore directly upon the central question of risk to the safety of children.
In relation to the third ground of appeal the Plaintiff drew attention to what was said by McHugh JA and Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The Plaintiff submitted that the findings identified at paragraphs [115], [116] and [118] of the judgment of the Tribunal were made in the absence of any further consideration of the relevance of the remaining suspicions to the assessment of risk. In that way, the failure to reference any aspect of that assessment resulted in there being no means to expose the logic for the ultimate findings the Tribunal made. In that way the reasons were inadequate.
The Defendant submitted that the Tribunal's observation that "some suspicion remains that some of the alleged behaviour may have occurred" read in context, conveyed no more than that the Tribunal on the basis of the documentary and oral evidence before it was unable to satisfy itself on the balance of probabilities that most of the allegations made against the Defendant either did not or did occur. The Defendant submitted that this was not a case where the Tribunal determined that the veracity of the allegations made against the Defendant remained open particularly when it rejected at least one of the allegations made against the Defendant at paragraph [106], emphasised the significant concerns of both the Police and the DPP in respect to the veracity of other allegations made by the children and the credibility of his former wife, and found that the Defendant was "consistent in his answers" meaning that he was a credible witness. The Defendant submitted that the circumstances in CFW differed significantly particularly because of the doubt cast on the Defendant's credibility in that matter.
The Defendant drew attention to Dr Seidler's opinion expressed on the basis that the allegations against the Defendant were made out. That position also contrasted with the position in CFW.
The Defendant submitted that unlike the Tribunal in CFW and contrary to the Plaintiff's submissions, the Tribunal in the present case did not put its suspicions to one side and express a final opinion as to the risk. In the present case the Tribunal expressly said it had regard to the observations in CFW and it also considered and accepted the evidence of Dr Seidler. In that way, the Tribunal did not misapply or misconstrue the test applicable under s 23(1) of the WWC Act.
The Defendant submitted in relation to ground 2 that the Plaintiff would need to succeed on ground 1 to be successful on ground 2. The Defendant submitted that the Tribunal did not fail to have regard to "the seriousness of ... matters that caused ... imposition of an interim bar" (s 30(l)(a) of the WWC Act). The Tribunal referred to these matters at paragraphs [9], [48], [50], [67]-[70] and [73], and considered them as part of its decision-making process at paragraphs [78] - [80], [83], [100], [102] - [109].
In any event, the Defendant submitted that if the Tribunal did fail to have regard to the seriousness of the matters that led to the Plaintiff imposing an interim bar on the Defendant, the Plaintiff's real complaint was that the Tribunal did not give adequate weight to the material before it. That raises a question of fact and not law.
In relation to ground 3 the Defendant submitted that the authorities referred to by the Plaintiff were not apposite to administrative decision-makers because they concerned the obligation of curial decision-makers to give adequate reasons for judgment. The Tribunal's obligation to give reasons is contained in s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW). Under that section the Tribunal's obligation is to set out the findings on material questions of fact that it considers to be material and its obligation to set out the reasoning processes that led it to the conclusions it made is not an obligation to provide reasons in detail with respect to each and every argument advanced by a party.
Finally, the Defendant submitted that if there was a breach of the Tribunal's obligations under s 62(3) of that Act that would not be an adequate basis to set aside the decision. Rather, an order should be made requiring the Tribunal to comply with its obligations under s 62(3). Reference was made to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [33], [41] and [57]; and Repatriation Commission v O'Brien (1985) 155 CLR 422 at 445-446.
In reply the Plaintiff submitted that ground 1 gave rise to a question of law because, in putting aside the finding of risk, the Tribunal did not apply the correct test. Where the Tribunal did not make a positive finding that an act did not occur it was required to assess the likelihood or possibility of similar events occurring, and in failing to do so it misapplied the test.
In relation to ground 2 the Plaintiff submitted that even if the Court was not satisfied that the Tribunal made an open finding the Tribunal was required to consider the level of seriousness of the allegations to comply with s 30(1) of the WWC Act.
In relation to ground 3 the Plaintiff submitted that s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) required the Tribunal to go beyond simply setting out the findings it considered to be material. The Tribunal was required to provide its reasoning process that led to the ultimate conclusion. In that way a review court could see what the Tribunal took into account.

Consideration

It is convenient to deal with all of the grounds together because of the interrelationship between them. In my opinion, none of the grounds is made out because a careful examination of the reasons of the Tribunal demonstrates that the Tribunal has not applied the wrong test, it has not put aside allegations and its reasons are not inadequate.
Guidance is obtained from a number of cases where the reasons of administrative decision-makers and inferior tribunals are being considered.
In Politis v Commissioner of Taxation (1988) 16 ALD 707; (1988) 88 ATC 5029; (1988) 20 ATR 108 Lockhart J said: I have observed a distinct and growing tendency in this court when appeals are brought from administrative tribunals including appeals on a question of law from the Administrative Appeals Tribunal under s 44(1) of the Administrative Appeals Tribunal Act, for the court to be asked to construe the Tribunal's reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error. The Administrative Appeals Tribunal is required by s 43(2b) of the Administrative Appeals Tribunal Act to include in its written reasons for decision "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". I repeat what has been said by other members of this court in the cases mentioned below and by myself on more than one occasion, that when this court hears appeals from administrative tribunals - which are the bodies entrusted by parliament with the task of reviewing decisions of a particular administrative character - the court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole. I agree with the view expressed by Fisher J in Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) (1980) 3 ALD 38 at 49 with respect to a decision of the Administrative Appeals Tribunal relating to the Customs Tariff:
Politis was approved by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [291]. In addition, the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ said at [31] that: the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed, and that the appeal court must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Gleeson CJ said: [14] Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. …
In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Basten JA (Beazley and Macfarlan JJA agreeing) said: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. Although that case involved an appeal from a judge, the principle is consistent with what was said in the earlier cases referred to. In any event, the authorities tend to show that more is expected of judicial officers than of tribunals and administrative decision makers.
The Plaintiff makes particular criticism of the fact that the Tribunal determined at [109] that it was not able to make a positive finding that the alleged behaviours did not occur and then went on to say in [111] that, notwithstanding that lack of a positive finding, the Tribunal was not satisfied that the Applicant posed a real and appreciable risk to children. The Plaintiff submits that in reaching that conclusion the Tribunal did not apply the appropriate test in CFW and put aside the allegations made against the Defendant in reaching that conclusion. Further, the Plaintiff submitted that there was no adequate reasoning for the conclusion expressed at paragraph [111].
In my opinion, that overlooks the fact that the Tribunal had earlier set out in some detail the Defendant's evidence ([43]-[57]) and its findings in relation to his evidence (at [91] and [97]), which indicated fairly clearly that the Tribunal accepted his evidence. The Tribunal's discussion of the circumstances of the making of the allegations at [102], as well as the conclusions expressed at [103] (the doubt about the daughter's allegation) and [106] (the allegation of the removal of the daughter from school), no doubt helped the Tribunal to reach the positive view that it formed of the Defendant's evidence.
The Plaintiff's approach also overlooks the fact that the Tribunal had earlier set out the expert evidence from Dr Seidler (at [58]-[63]), concluding that the Defendant posed an overall low risk, and later (at [88]-[90] and [92]-[93]) discussed the report in the context of any likely repetition of the alleged behaviour. The oral evidence of Dr Seidler made clear that, for the purposes of making her risk assessment, she assumed that the allegations against the Defendant were true. Her risk assessment, therefore, excluded the possibility that the Defendant did not do the acts alleged. That is a significant matter.
Significantly, the Plaintiff overlooked paragraph [113] where the Tribunal said that it had regard to all of the evidence and the submissions "even if we do not refer to all of that information specifically in these reasons". It then went on to say that all material had been considered "however the material of the expert witness was given significant weight, having regard to the fact that their (sic) evidence was scrutinised, and that they (sic) have provided expert evidence on the substantive consideration for the Tribunal, that is whether the applicant is a risk to the safety of children".
It is also of significance that in the paragraph which intervened between [109] and [111] the Tribunal specifically referred to the judgment of Harrison J in CFW. Earlier the Tribunal had in its reasons set out that portion of Harrison J's judgment that dealt with the statutory test at [13]-[17] of CFW. At this point the Tribunal referred to Harrison J's judgment at [48] of CFW where his Honour discussed the need to weigh all reasonable suspicion in the process of determining what might happen in the future. That is a strong indication that the Tribunal did not put aside the allegations in determining whether the applicant posed a risk to children. It is also difficult to see how it can be said that the Tribunal failed to apply the appropriate test where, in the paragraph immediately preceding its conclusion that the Defendant did not pose a real and appreciable risk to children, the Tribunal had referred to the very case which elaborated on the statutory test.
What the Tribunal said in [113] shows that the Tribunal was alive to the correct test that it had to apply when it said: In particular the applicant's evidence and the expert evidence were considered to a significant extent in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.
It is apparent from that passage also that the basis for the Tribunal's conclusion, set out somewhat repetitively in [115], [116] and [118] of its judgment, was the evidence of the Defendant and the evidence of Dr Seidler.
One final point should be made about whether the Tribunal applied the correct test. In CFW Harrison J said: [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]. (emphasis added)
The notion that the "lingering doubt or suspicion" should be counted against the defendant seems first to have been identified by the Tribunal in BSR v Office of the Children's Guardian [2015] NSWCATAD 264 where the Principal Member said at [41]: If a lingering doubt or suspicion remains, as it does, that counts against BSR: see M v M at [21]; BKE at [33].
The reference to M v M is to the decision of the High Court at (1988) 166 CLR 69; [1988] HCA 68 and the reference to BKE is to the decision of Beech-Jones J in BKE v Office of Children's Guardian & Anor [2015] NSWSC 523. The problem is that neither of those cases said or implied that it counted against the defendant if a lingering doubt or suspicion remained. It is necessary to set out not only the paragraph in M v M identified by the Tribunal in BSR but also the subsequent paragraphs to demonstrate that there is no basis for the gloss added by the Tribunal: [21] Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. [22] In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. 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. [23] 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. [24] 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 assessing 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. [25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M [1986] FamCA 62; (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) [1986] FamCA 52; (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Similarly, in BKE Beech-Jones J set out most of what appears above from M v M and said at [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.
With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or "a lingering doubt or suspicion" counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.
As is clear from paragraphs [78]-[80] of the judgment, the Tribunal did not ignore s 30(1)(a) of the WWC Act. The Tribunal said that the seriousness of the allegations was significant but noted that the applicant denied the allegations. As noted earlier, it is clear that the Tribunal accepted the Defendant's denials and considered that his evidence, along with the expert evidence, was significant in coming to a view about the major issue for determination. The risks of any repetition were discussed at paragraphs [63], [88]-[90] and [93].
The Tribunal did not put aside the allegations made against the applicant. Having determined that a positive finding either way could not be made the Tribunal thereafter indicated that when it considered all of the evidence particularly the evidence of the Defendant and Dr Seidler, and giving significant weight to Dr Seidler, it determined that the evidence did not establish that the Defendant posed a real and appreciable risk to the safety of children.
Section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) provides: 62 Tribunal to give notice of decision and provide written reasons on request (1) … (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
I do not consider that there can be any serious doubt that the Tribunal has complied with paragraphs (a) and (b) of s 62(3). Although the Plaintiff submitted that the Tribunal failed to apply the appropriate test, the judgment demonstrates from the setting out of the extract from CFW and from its approach to s 30 of the WWC Act that it understood the applicable law. I have earlier explained why I consider that the Tribunal did not misapply that law.
On the other hand, I can accept that the manner in which the Tribunal expressed its reasons might cause the reader, when reading those reasons quickly, to conclude that the requirements of s 62(3)(c) had not been followed. There is, for example, a fairly rapid progression from the open finding on the allegations at [109] to the conclusion on the central issue at [111].
Two points should be made. First, it is important to bear in mind what Basten JA said (Ward JA and Bergin CJ in Eq agreeing) in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46]: Generally, the concept of "reasons" requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. What the Tribunal was deciding here was an evaluative judgment, namely, whether the Defendant poses a risk to children in the way "risk" is understood from Commission for Children and Young People v V [2002] NSWSC 949. I accept that a detailed articulation was not possible.
The second matter is, and one not unrelated to the first point, that a careful reading of the reasons demonstrates that the Tribunal has properly had regard to the evidence by identifying the matters which led it to the conclusion it ultimately reached. The key to that understanding is the summary provided at [113] which takes the reader back to the earlier discussion of the evidence of the Defendant and particularly Dr Seidler on whose evidence the Tribunal expressly placed considerable weight. In that way the Tribunal's reasoning processes are adequately set out. As Basten JA said in Resource Pacific, it is not the place of an appellate court to set standards for the level of detail to be provided in the judgment under review. Nor, I would add, in the light of what Gleeson CJ said in Applicant S20/2002, is it the place of the appellate court to say how the tribunal or court below should order those reasons provided the reasoning process can be discerned.

Conclusion

The Tribunal mistakenly thought that it was dealing with an appeal from a refusal of the Children's Guardian to grant a clearance under s 18 of the WWC Act rather than an appeal from a cancellation of a clearance pursuant to s 23 of the Act. It is not suggested that this error vitiated the Tribunal's decision if error was not demonstrated in the ways claimed in the Notice of Appeal. That was because the test for the ultimate determination of risk was the same. However, the orders made by the Tribunal are inappropriate for the appeal which the Tribunal determined in substance in favour of the Defendant. The Tribunal should have set aside the cancellation of the clearance. It may have made an ancillary order directing the Children's Guardian to issue or restore the clearance.
Accordingly, the orders that I make are these: 1. Vary the orders made by the Tribunal on 4 January 2017 so that they provide: 1. Set aside the decision of the respondent dated 15 December 2015 cancelling the applicant's Working with Children Check clearance; 2. Order that the respondent issue to the applicant a Working with Children Check clearance. 1. The Summons is otherwise dismissed. 2. The Plaintiff is to pay the Defendant's costs.

Amendments 07 July 2017 - Publication restriction lifted 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: 07 July 2017

(1987) 11 Fam LR 765

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