DAR v Children's Guardian

Supreme Court of NSW|2018-06-19|Before: Adamson J

Solicitors: Legal Aid NSW (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2018/00034527

Introduction

The plaintiff, DAR (a pseudonym), was charged with an offence of aggravated sexual intercourse with a person greater than 10 years and less than 14 years old in December 2009 contrary to s 66C(2) of the Crimes Act 1900 (NSW). The alleged victim was one of his daughters who was, in December 2009 when the offence was said to have occurred, 11 years old (the complainant). The jury by which the plaintiff was tried returned a verdict of not guilty on 1 June 2016, following a trial which had run from 24 to 31 May 2016.
The legislation principally relevant to these proceedings is the Child Protection (Working With Children) Act 2012 (NSW). All references to legislation in these reasons are, unless otherwise indicated, references to this legislation.
Having been charged with such an offence, the plaintiff was obliged to undertake a risk assessment conducted by the Children's Guardian (the defendant or the Guardian). On 17 August 2016 the plaintiff applied to the Guardian for a working with children check clearance (a clearance). On 14 March 2017 the Guardian notified the plaintiff of its decision to refuse him a working with children clearance. The plaintiff applied, pursuant to s 27, to the Civil and Administrative Tribunal (the Tribunal) for administrative review of the refusal. On 4 January 2018, the Tribunal also refused the clearance, following a 2-day hearing on 27 October 2017 and 29 November 2017. By amended summons filed on 17 April 2018 the plaintiff challenged the Tribunal's decision. There was no issue that the original summons, which was dated 1 February 2018, had been filed within time.

Child Protection (Working with Children) Act 2012 (NSW)

Section 8 prohibits a worker from engaging in child-related work without a clearance. Section 10 requires those working in certain home-based education and care services to hold a clearance. Section 14, when read with Sch 1, provides that a person who has ever been charged, as an adult, with an offence such as an offence against s 66C(2) of the Crimes Act is subject to an "assessment requirement". By reason of having been charged with this offence, the plaintiff became subject to an assessment requirement. When the plaintiff applied for a clearance under s 13(1), the Guardian was obliged to conduct a risk assessment of the plaintiff under s 15, which relevantly provides: "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. . . . (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 criminal history 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, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination. . . ."
Section 18 relevantly provides "(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children."
Section 27(1) provides that, if such an application is refused then the applicant may apply to the Tribunal for an administrative review of the decision.
Section 30 relevantly provides: "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, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. . . ."

Other relevant statutory provisions

Section 63(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) required the Tribunal to "decide what the correct and preferable decision is having regard to the material then before it". Section 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal's written statement of reasons 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."
Pursuant to cl 17 of Sch 3 to the Civil and Administrative Tribunal Act the plaintiff is entitled to appeal to this Court on a question of law.

Factual background

For present purposes, the relevant facts can be shortly summarised. The plaintiff had previously worked as a youth worker in the community services sector. He applied for a clearance on 17 August 2016. The Guardian carried out a risk assessment. On 14 March 2017, the Guardian notified the plaintiff of its decision to refuse him a clearance "because [the Guardian] is satisfied that you pose a risk to the safety of children." On 12 April 2017, the plaintiff applied to the Tribunal for a review of this decision as he wanted to resume employment in a child-related area.

The hearing before the Tribunal

The evidence before the Tribunal included the evidence at the plaintiff's criminal trial and the transcript of the criminal proceedings. Of present relevance the transcript included the plaintiff's evidence at the trial in which he said that there was no heater in his room or the complainant's room; and that he had two knee reconstructions in 2007 which made it difficult for him to kneel. These matters were significant because the complainant's evidence at trial was that there was a heater on in the room where the assault occurred in December 2009 and that the plaintiff kneeled on the bed before he sexually assaulted her. The complainant did not give evidence before the Tribunal although the transcripts of her evidence at the trial were tendered.
The Guardian also tendered a document created by "Senior Constable B", who was the police officer attached to the Child Abuse Squad and the officer in charge of the criminal investigation into the complainant's allegations. In the document Senior Constable B expressed a view about the strength of the prosecution case and his concerns about the applicant being granted a clearance to work with children. His conclusion included a statement to the effect that Family and Community Service (FACS) had substantiated that the plaintiff sexually assaulted a child and, as a result, the plaintiff should not be permitted to work with children in the future. Counsel for the plaintiff objected to the admission of this opinion on the basis that it expressed a view on the ultimate question. The Tribunal overruled the objection and admitted the document, including the opinion, for the reasons which are extracted below.
The evidence before the Tribunal also included the plaintiff's statement dated 1 August 2017. He deposed to the commencement of his relationship with the complainant's mother who, when they met, had five children already from two separate fathers. The plaintiff and the complainant's mother subsequently had three daughters: the first, the complainant, was born in 1998; the second was born in 1999; and a third was born in 2001. According to the plaintiff, he and the complainant's mother separated in December 2004. The plaintiff deposed in his statement that in January 2011, some time after he had separated from the complainant's mother, the complainant stopped coming to visit him. Subsequently, in 2013, according to the plaintiff, the complainant was cutting her arms. Later she accused him of raping her in a telephone recording which was lawfully intercepted for the purpose of obtaining admissions against him. The plaintiff was cross-examined in the Tribunal.
The plaintiff also read the affidavit of Jennifer Campbell, who gave character evidence in favour of the plaintiff and deposed that she had observed the plaintiff with his own children and was happy to leave her children in his care. Ms Campbell was cross-examined in the Tribunal proceedings. The plaintiff also relied on affidavit evidence from Rose Gow, with whom he had previously worked. Ms Gow was not cross-examined. The plaintiff relied on an expert report of Dr Christopher Lennings, psychologist. He assessed the plaintiff's risk as "quite low compared to other offenders."

The Tribunal's decision

In its decision, the Tribunal set out the relevant statutory provisions, its role and the applicable test, in a way which was not the subject of complaint. At [15] it adopted the description of the risk referred to in s 18(2) taken from the reasons of Young J in Commissioner for Children and Young People v V [2002] NSWSC 949 at [42]: namely, "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child."
In addressing its procedure, the Tribunal referred to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 before making a positive finding that the plaintiff had abused a child when he had not been found guilty of the offence with which he had been charged: [20]. The Tribunal cited the decision of Beech-Jones J in BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE) at [29]-[33] in which his Honour said that considerable guidance could be derived from the High Court's decision in M v M (1988) 166 CLR 69; [1988] HCA 68. The Tribunal set out the following passage from [33] of BKE: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
The Tribunal narrated the evidence before it under a heading to that effect. Of present relevance the Tribunal referred to the document created by "Senior Constable B which contained the opinion to which objection had been taken (referred to above). The Tribunal admitted the document, including the opinion, and noted that it was not bound by the laws of evidence. The Tribunal confirmed that, although a different approach had been taken earlier, the plaintiff's representative confirmed that Senior Constable B was not required for cross-examination. In its reasons the Tribunal said, at [30]: "The Tribunal considered that the evidence of Senior Constable B was both relevant and probative. Senior Constable B led the criminal investigation into the allegation and interviewed a number of witnesses including the victim and the applicant. He also gave evidence at the applicant's trial. It is apparent that Senior Constable B played an important role in the matter and had the opportunity to consider much of the evidence firsthand. The Tribunal formed the view that Senior Constable B's evidence was relevant to the matters being determined by the Tribunal and should be admitted. Of course, his evidence is not to be relied upon in isolation. Nor should such evidence be considered in any way to be determinative of the issues. Rather, it is a matter for the Tribunal to determine the strength or otherwise of the allegation based on all of the material before it, including all primary records. However, it should not be the case that the Tribunal is restricted from considering the evidence of a police officer who led an investigation into an allegation which is at the very core of the issue in dispute; and ultimately caused the refusal of the applicant's application for a clearance."
The Tribunal noted that the plaintiff's representative did not press for the complainant to be made available for cross-examination. The Tribunal rejected much of the summonsed material sought to be relied on by the plaintiff on the basis that it lack sufficient probative value: [37]-[38]. The Tribunal noted, at [38]: "Moreover, it was not in dispute that the victim's self-harming behaviours could have arisen as a result of factors other than the sexual abuse alleged by the victim."
The Tribunal, at [39] turned to address the "Section 30 factors" and began its consideration of the seriousness of the matters that caused a refusal of a clearance: s 30(a). The Tribunal set out, in a chronological sequence: the complainant's evidence of what occurred in December 2009; the complainant's attempt to discuss the event with the plaintiff; the cessation of the complainant's access visits to the plaintiff in 2011; the commencement of self-inflicted cuts on the complainant's arms in 2012 and the complainant telling three of her friends that she had been raped by her father; the complainant being admitted to hospital in June 2013 following an overdose of anti-depressant medication; and the complainant telling her older sister and her mother that the plaintiff had raped her, which led to a "risk of serious harm" report (ROSH) which led to an investigation. The Tribunal also set out the terms of the intercepted telephone conversation between the complainant and the plaintiff in October 2013, following which he was charged. The Tribunal said in its reasons: "[48] The applicant pleaded not guilty to the offence and the matter proceeded to trial, during which he was legally represented. Prior to the trial, a psychologist, Dr P, assessed the victim and opined that the victim's behaviour and presentation was consistent with the offence she alleged. [49] During the trial, the victim and a number of witnesses, including Miss S, Miss B, Miss V, the victim's sisters and mother, Dr P and another psychologist gave evidence and were cross examined. The applicant also gave evidence and was cross examined. By jury verdict, the applicant was found not guilty of the offence. [50] The applicant denies that he had sexual intercourse with his daughter. [51] The charge against the applicant was extremely serious involving the rape of a child by the child's father. It is, in the Tribunal's view, within the highest range of offences against children. The act as alleged by the child victim was violent and brutal. If it did occur as alleged, is likely to have caused the child serious psychological and emotional harm."
The Tribunal addressed the matters in s 30(b)-(h). It is not necessary to detail its consideration of these matters which was not the subject of challenge. As to the factor in s 30(i) the Tribunal said as follows: "(i) The likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition [62] The applicant relied upon the oral and written evidence of Dr Lennings, Clinical Psychologist. [63] Dr Lennings stated that the most likely diagnosis for the applicant is that of Major Depressive Disorder but that at the time of assessment the impairment was only mild. Dr Lennings also said that although no personality disorder diagnosis was indicated, there were some borderline personality traits noted in the applicant's presentation, which Dr Lennings suspects underpin the difficulties the applicant has had in sustaining appropriate relationships. [64] Dr Lennings conducted a risk assessment of the applicant using various tools. On the Static 99R, which measures the risk of the person being charged with a future sexual offence, the applicant scored -1. Dr Lennings stated that this score represents the second lowest category of risk; and is below that of the average offender. In terms of absolute risk, Dr Lennings stated that for every 100 offenders with the applicant's score, two might be expected to be charged with a risk offence in the next 5 years. Using a study that compares those convicted of a sexual offence against those strongly suspected but not convicted of such an offence, Dr Lennings estimated that the risk is even lower, with the applicant having about a1/6th the risk of reoffending as compared to the average offender. Dr Lennings stated that if the allegation is not true, the applicant poses no relevant risk. [65] In cross examination, Dr Lennings conceded that although he had read the trial transcript and the evidence of Dr P, Psychologist, he had not read Dr P's report of her assessment of the victim. Dr Lennings also conceded that it was not remarkable that the victim made her initial disclosures to her friends, rather than to her mother or through formal channels."
When the Tribunal came to consider s 30(j), "any information given by the applicant in, or in relation to, the application", it noted the plaintiff's denial of the allegation: [66]. The Tribunal referred to his evidence at the criminal trial ([67]) about the dynamic between himself and the complainant's mother and the access arrangements at the time of the alleged offence. It recounted the evidence the plaintiff gave in the criminal trial, including that: "[69] At his trial, the applicant's evidence was that he could not have raped his daughter in the manner in which she alleged as he had previously undergone two knee reconstructions and was unable to kneel as described by the victim. The applicant also disputed the victim's account of the circumstances leading up to the act, indicating that by December 2009 he had packed away the heaters (including the one in the victim's bedroom). The applicant gave evidence that he believed that Ms V exercised parental alienation (which he said he could not prove) and "indirectly put (the victim) up to it".
The Tribunal referred to the evidence of psychologists at the trial that the complainant's self-harming could have been caused by a variety of factors: [70]. At [71] the Tribunal referred to the reasons the plaintiff had given Dr Lennings for the allegation: first, that someone else had molested the complainant and she was "scapegoating" him; and, secondly, that sexual abuse ran in the complainant's mother's family and that she had planted the seeds in the complainant's head for the purposes of alienating the complainant from him. The Tribunal noted a third reason given by the plaintiff: namely, that the complainant had a "false memory": [73]. The Tribunal said that the plaintiff had accepted that all of these potential reasons were speculative. At [74], the Tribunal noted that at the time of the alleged offence, there was no significant family law dispute between the plaintiff and the complainant's mother; access arrangements had been agreed; and the complainant's mother, who had been diagnosed with cancer, had expressed a wish that, if anything happened to her, she would like the plaintiff to care for the children: [74]. The Tribunal referred to the plaintiff's affidavit in this context and said: "[75] In his affidavit prepared for the Tribunal hearing, the applicant described the problems within the household he shared with Ms V [the complainant's mother], including the problems associated with Ms A and the care of Ms A's baby, as well as the sexualised behaviours of Mr M and Ms B. It was submitted that the victim's exposure to the environment and those behaviours may have been factors in her self-harming conduct, which could not be solely as a result of the alleged sexual abuse.
At [76] the Tribunal referred to the evidence of Ms Gower and Ms Campbell referred to above. The Tribunal summarised their evidence as follows: "Ms G stated that the applicant was a skilled and experienced youth worker who was professional in his dealings with young people with challenging (including sexualised) behaviours. Ms C stated that the applicant babysat her now adult children over the years on about 8 or 10 occasions during which she had no concerns about leaving her children in the applicant's care."
At [77] the Tribunal referred to the plaintiff's qualifications, certificates and character references, including from a psychologist who treated him from 2013 to 2016. The Tribunal recorded the plaintiff's reason for wanting the clearance at [78] as follows: "Presently, the applicant is unemployed and in receipt of a Centrelink benefit. He does occasional volunteer work for an organisation supporting fathers. He is not in a relationship and has no contact with his daughters. He seeks a working with children check clearance to enable him to move on with his life and to be able to assist people in need."
At [79], the Tribunal summarised the plaintiff's case before it as follows: "Counsel for the applicant submitted that the whole case rests on the word of the victim who was an extremely disturbed girl, versus the word of the applicant, and that the Tribunal should have no difficulty in finding that the offence did not occur. Counsel further submitted that in the event that the Tribunal finds some basis to believe the offence might have occurred, then the Tribunal should have regard to the evidence of Ms G, Ms C and Dr Lennings, and take into account the 8 year period that has elapsed since the matter occurred and the low risk of recidivism."
At [81]-[82] the Tribunal summarised the submissions made by the Guardian as follows: "[81] The respondent opposes the applicant's application. The respondent submitted that there is insufficient evidence to support the suggestion that the victim had a false memory of the events in 2009, that there was an alternative perpetrator involved, or that the victim's mother had planted the seed in the victim as a means of parental alienation. The respondent submitted that it is available to the Tribunal to make a positive finding that the applicant engaged in sexual intercourse with the victim as alleged. [82] Counsel for the respondent also submitted that a reasonable person, having knowledge of the evidence, including the victim's disclosures, would be very concerned and would not want the applicant working unsupervised with his or her child."
Following [82], the heading "Conclusion" appears in the Tribunal's reasons. In the ensuing paragraphs, the Tribunal analysed the evidence and set out its conclusions. At [83], it distinguished between the finding of not guilty in the criminal trial and the task it was to perform, namely "to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and applicable law": [84].
At [90] the Tribunal found that the plaintiff had sexual intercourse with the complainant as alleged. Its reasons for this finding appear from the preceding paragraphs, which are set out below: "[86] The Tribunal had before it considerable documentary evidence, including records of interview, witness statements, and the transcript of the trial. The victim was cross examined across three days. The victim's mother and the three friends to whom the victim disclosed the allegation also gave evidence. [87] Having considered that material and all of the other evidence before it, the Tribunal finds that the victim has maintained a consistent account of the incident in 2009. The Tribunal acknowledges that the victim's disclosures to her friends, and/or their recall of those disclosures, contained some inconsistencies. However, the Tribunal finds that those differences were not so material that they suggested fabrication by the victim, but rather were generally consistent with the victim's complaint that she was raped by her father in his home. The victim's account to investigators and her evidence before the court were also consistent and, in the Tribunal's view, not diminished by cross examination. [88] The Tribunal accepts that the victim's self-harming behaviour cannot be linked exclusively to the alleged sexual abuse, and that there may be a multitude of reasons for the victim's behaviour. However, the Tribunal formed the view that the victim's account of the event in December 2009 was credible and was not significantly challenged. In the Tribunal's view, the applicant's contention that parental alienation exercised by the victim's mother contributed to the making of the victim's allegation was not borne out by the evidence. Whilst the mother may well have spoken badly of the applicant, there was limited evidence to suggest that this was done in order to effect parental alienation. And although it is apparent that the relationship between the applicant and the victim's mother was acrimonious and necessitated Family Court proceedings, the evidence indicates that agreement had been reached by the applicant and the victim's mother in relation to access to the children and the mother had expressed a wish that the children to be cared for by the applicant in the event that she was unable to do so. [89] In addition, the Tribunal notes that the victim had reached the age of 17 at the time of the trial, and had continued to maintain her account of what occurred over a period of 4 years. One may think that by the age of 17 the victim had considerably more authority to make her own decisions and choices about her relationship with her father, and her participation in criminal proceedings against him. Similarly, although not raised at his trial, the applicant's contention (which was not pursued during oral submissions in the Tribunal hearing) that there was an alternate perpetrator who committed the offence was not substantiated by the evidence. There was also a lack of evidence to indicate that the victim suffered from a false memory or factitious disorder. [90] Taking into account all of the material before it, on the balance of probabilities the Tribunal finds that the applicant had sexual intercourse with the victim as alleged." [Emphasis added.]
The Tribunal went on to say that, even had it not reached that state of satisfaction, it would be satisfied that "there is nonetheless an unacceptable risk of harm": [91]. It referred to BKE at [31]-[33].
At [93] the Tribunal referred to Dr Lennings evidence that, if the allegation was not true, there was no risk of harm and if it was true, there was only a low risk of re-offending. It continued: "However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children." At [94] the Tribunal noted the absence of any further similar conduct and the lack of criminal record (with minor exceptions). At [95] the Tribunal noted its concern about the plaintiff's apparent lack of "pro-social supports". The Tribunal referred to the plaintiff's sense of grievance as a consequence of the allegation and considered that he displayed limited insight into the seriousness of allegations of sexual abuse made by children.
At [97]-[98] the Tribunal concluded: "[97] Taking into account all of the evidence before it, the Tribunal could not be satisfied that the applicant, if working with children, would be in a position to respond and act appropriately in situations where there are signs or indicators of child abuse, and which would warrant the intervention of child protection authorities. Furthermore, the Tribunal could not be satisfied that if working with children, the applicant would be able to dispassionately and objectively manage situations and take appropriate protective steps in circumstances where a child is at risk. In coming to this conclusion, the Tribunal is mindful that the safety, welfare and well being of children and in particular protecting them from child abuse is the paramount consideration. [98] On the whole of the material before it, and taking into account the objects of the Act and section 4 of the Act, the Tribunal was satisfied that the applicant poses a risk to the safety of children and should not be granted a working with children check clearance."
The Tribunal turned to s 30(1A)(a) and concluded: "[99] Furthermore, pursuant to s 30(1A)(a), the Tribunal finds that even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant while the applicant was engaged in child-related work. This is because a reasonable person knowing the matters to which the Tribunal has referred would consider that the applicant poses a degree of risk which is unacceptable to that person in terms of sexual risk. [100] Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. In light of this determination, it is not necessary to consider the application of s 30(1A)(b). However, if required to do so, the Tribunal is also satisfied, for the reasons stated earlier and having regard to the objects of the Act and section 4 of the Act, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act."
At [101], the Tribunal made orders, which included the following: "The decision of the respondent dated 14 March 2017 to refuse to grant the applicant a working with children check clearance under the Child Protection (Working with Children) Act 2012 is affirmed."

The grounds of appeal

The amended summons (which was further amended in the course of the hearing) contained six grounds of appeal as follows: (1) The Tribunal erred at law by failing to comply with the process of decision-making requirements in s 63(1) of the ADR Act and failed to give reasons in accordance with s 62(3) of the [Civil and Administrative Tribunal Act]. PARTICULARS There is no finding as to credibility, veracity or reliability of evidence given by the plaintiff. There is no weighting or evaluation of conflicting evidence. Failing to find facts on the civil standard of proof by applying the Briginshaw standard. The process by which the Tribunal reached the conclusion that the plaintiff poses an unacceptable risk of harm in paragraphs [90]-[92] is based on erroneous reasoning. (2) The Tribunal erred in law by misconstruing a statutory phrase of "poses a risk to the safety of children" in s 18(2) of the Act by imposing on the plaintiff a more onerous test. PARTICULARS Paragraph [97] of the Decision does not reflect the correct meaning of "risk to the safety of children." The Decision does not exposure any analysis or evaluation of the risk posed by the plaintiff to children. (3) The Tribunal erred in law by failing to consider the evidence provided by the plaintiff pursuant to section 30(j) of the Act. PARTICULARS The plaintiff's medical condition as to his knees at [69] of the Decision. The evidence of Ms Gow as to risk to children. The evidence of Ms Campbell as to the plaintiffs risk to children. (4) The Tribunal erred in law by its failure to give reasons for not accepting the evidence of Dr Lennings. PARTICULARS That the plaintiff poses a low risk to the safety of children. That the plaintiffs impairment of a Major Depressive Disorder was only mild at [62] of the Decision. (5) The Tribunal erred in law by admitting and relying on certain documentary opinion evidence in [22]-[31] of the Decision. PARTICULARS The conclusion or opinion expressed in the NSW Police Force Information Report to the effect that FACS had substantiated that the plaintiff sexually assaulted a child and as a result, its opinion that the plaintiff should not be permitted to work with children in the future. The conclusion or opinion expressed in the FACS Report that the child was sexually abused by the plaintiff. (6) The Tribunal erred in its assessment of s30(1A)(a) and (b) of the Act as to public interest and that a reasonable person would not allow her or his child to have direct, unsupervised contact with the plaintiff if NCAT found that the sexual assault did not occur at [99]-[100] of the Decision.
Although there are six grounds of appeal, there is considerable overlap between the grounds. As Ms Andelman accepted, the first and third grounds were, in effect, two sides of the same coin. I propose to consider the grounds in sequence, except where there is overlap.

Grounds 1 and 3

The plaintiff submitted that the Tribunal's reasons were deficient in that it did not expressly reject his evidence; did not make findings about his credibility, veracity and reliability; and did not explain why it rejected his evidence and accepted the evidence the complainant had given at trial. Ms Alderman, who appeared on behalf of the plaintiff, submitted that the deficiency in the reasons was such as to require the decision to be set aside and remitted to the Tribunal for redetermination in accordance with law. Ms Alderman confirmed that she did not submit that it was not open to the Tribunal to find that the sexual intercourse had occurred as alleged but, rather, that the process of reasoning, and the lack of reasons were legally erroneous.
Before considering the merits of these grounds, it is important to note the nature of the allegation and the fact-finding process in which the Tribunal was required to engage before being satisfied to the requisite standard that the sexual intercourse had occurred as alleged. First, there were only two persons capable of giving direct evidence on the question: the plaintiff and the complainant. Although it was open to the Tribunal to accept the version of one and not the other or to reject the evidence of both, it was not open to the Tribunal to accept the versions of both since they were fundamentally inconsistent. Findings made in accordance with the version of the complainant, necessarily entailed a rejection, or non-acceptance, of the plaintiff's version. Thus, as a matter of substance, the Tribunal's finding that it accepted the complainant's version was tantamount to a finding that it rejected the plaintiff's version. In the circumstances of the present case, the reasons were tolerably clear: the Tribunal did not accept the plaintiff's version or his evidence, in so far as it was contradicted by the complainant's version.
The Tribunal gave detailed reasons for accepting the complainant's version, including the consistency of her complaints, their timing, the surrounding circumstances and acts that were consistent with (although not determinative of) the assault having occurred, such as the self-cutting and her refusal to see her father after about a year following the incident. The Tribunal also considered, as it was entitled to do, the various hypotheses advanced by the plaintiff as to why the complainant would make a false accusation against him. The Tribunal rejected each of these as being inconsistent with, or not supported by, the evidence. In these circumstances, all that the Tribunal failed to say expressly was that it rejected the plaintiff's version.
I am not persuaded that this omission affects either the sufficiency of the reasons or the legality of the Tribunal's reasoning process. First, the sequential expression of reasons does not precisely reflect reasoning process. It is plain that the Tribunal considered the evidence as a whole and expressly confirmed that this was what it was doing: see Re Minister for Immigration & Multicultural Affairs: ex parte Applicant S20/2002; S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 (S20) at [14] (Gleeson CJ). The evidence included the plaintiff's evidence. There were several references in the Tribunal's reasons to his evidence and its assessment of particular aspects of it. It was not necessary for the Tribunal to refer to each aspect of the plaintiff's evidence. All that was required was that it comply with the obligation in s 62(3) of the Civil and Administrative Tribunal Act which included an obligation to set out the actual path of its reasoning: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
The present case has some similarities with S20 in which the High Court considered a challenged to a decision of the Refugee Review Tribunal which had given no weight to evidence said to be corroborative of the appellant because it did not believe the appellant. In that case, the Tribunal's reasons had been expressed as follows at [47]: "In light of the Tribunal's grave adverse findings on the [appellant's] credibility in relation to his claims to be of interest to the Sri Lankan authorities for any Convention reason, and further, in light of the [appellant's] behaviour after his arrival in Australia, namely his procrastination in making an application for protection and his assorted [and unsatisfactory] explanations for this delay, the Tribunal cannot be satisfied that the [appellant] has been truthful about why he left Sri Lanka or why he does not wish to return. In light of the Tribunal's findings above that the [appellant] thoroughly lacks credibility, and its findings that the [appellant] has misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the [appellant's] witness, and gives no weight to this evidence." [Emphasis in High Court's reasons.]
At [49], McHugh and Gummow JJ said, of present relevance: "In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant."
This case is similar in the sense that a finding of credibility of one witness can lead inexorably to a finding of credibility, or lack of credit, of another. In the present case, the Tribunal can be taken to have disbelieved the plaintiff because it believed the complainant. Its reasons set out why it accepted the complainant's version. These were the self-same reasons for its rejection of the plaintiff's version. The present is not a case such as the one referred to in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 where a "superior court, considering the decision of an inferior tribunal [is] left to speculate from collateral observation as to the basis of a particular finding."
To the extent to which the Tribunal was required to address the plaintiff's version directly, it referred to it sufficiently in its narrative of the evidence and specifically addressed the plaintiff's hypotheses as to why the complainant would have made a false allegation. While it may have been preferable for the Tribunal to find expressly that it rejected the plaintiff's version, its reasons are not deficient because this finding was necessarily implied rather than express.
The further matters raised in the particulars to grounds 1 and 3 can be dealt with briefly. The Tribunal correctly stated that the principles in Briginshaw v Briginshaw applied by reason of the seriousness of the allegation to the question whether the sexual assault had occurred as alleged. It also referred to the authorities which had applied these principles in cases such as the present. There is no reason to suppose that the Tribunal did not apply those principles as set out in its reasons. I reject the plaintiff's submission that there was nothing in the reasons to demonstrate that the Tribunal applied this analysis to the disputed facts. The matters raised by the plaintiff in ground 3, the presence or absence of a heater in the room in question and his alleged incapacity to kneel were purely matters of fact. The Tribunal referred to the plaintiff's evidence as to each of these two matters at [69] of its reasons. The Tribunal was not required to say why it did not consider these matters to be sufficient to undermine proof of the complainant's version to the requisite standard. Such minute attention to factual questions is not required by the statutory obligation to give reasons imposed by s 62(3) of the Civil and Administrative Tribunal Act: see also, in a judicial context, Soulemezis v Dudley (Holdings) Pty Ltd at 259.
Nor was the Tribunal required to explain why it found the allegation proved notwithstanding the evidence of Ms Campbell and Ms Gow, to which it specifically referred in the reasons. The evidence of these witnesses was not inconsistent with the complainant's evidence in any event. It is a matter of common experience for offenders to adduce evidence of good character which does not undermine the reasonableness of a finding of guilt.
Grounds 1 and 3 have not been made out.

Ground 2

It was accepted by the plaintiff that it was open to the Tribunal to find that the plaintiff posed a risk to the safety of children within the meaning of s 18(2). The plaintiff submitted that in [97] of its reasons the Tribunal had posed a different test to the statutory test in s 18(2) of the Act. As can be seen from the wording of s 18(2), the legislature used the word "risk" without any qualifying words. As referred to above the word "risk" in the statutory predecessor to the Act was found to mean "real and appreciable risk". The plaintiff further submitted that the Tribunal's reasons did not expose any analysis or evaluation of the risk posed by the plaintiff to children.
In [97] the Tribunal referred to its concern that it could not be satisfied that the plaintiff would be able to act appropriately in situations where there were signs or indications of child abuse. These findings are additional to the principal finding regarding risk which follows the Tribunal's acceptance of the complainant's version. The Tribunal said in [91] that, even if the allegation had not been made out there would "nonetheless" be an unacceptable risk of harm. In my view, on a fair reading, this reflects the Tribunal's finding that there was plainly a risk of harm within the meaning of s 18(2) once it had found the complainant's version proved to the requisite standard, as was set out in [90].
A different Tribunal might have expressed the connection between the risk posed by the plaintiff and the fact of his having had his sexual intercourse with his 11-year old daughter more comprehensively. However, the Tribunal was entitled, once it had made that principal finding, to be relatively succinct in the subsequent finding because of the gravity of the conduct which it had found proved. Ms Andelman also submitted that the references in the Tribunal's reasons to "unacceptable risk" and "relevant risk" indicated that it failed to apply the statutory test which referred solely to "risk". She accepted that the word "risk" in this context meant, as Young J found, "real and appreciable risk". I do not consider there to be any error in the expression by the Tribunal of the risk. The word "relevant" does not qualify the nature of the risk; it merely confirms that the risk is to be considered in the circumstances of the case. That the Tribunal used the phrase "unacceptable risk" does not, in my view, mean that the Tribunal did not apply the Act in terms.
Ground 2 has not been made out.
I note that the parties devoted considerable time in their submissions to the alleged inconsistency between the decisions of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 and Davies J in Children's Guardian v CKF [2017] NSWSC 893. The question considered by their Honours concerned a situation where the allegation of misconduct had not been either proved to the requisite standard, or could be dismissed as groundless. No such question arises in the present case since the Tribunal was satisfied that the allegation had been proved to the requisite standard and no error has been shown in that conclusion. Although the Tribunal did express a view about what the outcome would have been had it not been satisfied that the unlawful sexual intercourse had occurred, this was an alternative finding, which did not reflect its actual path of reasoning. Its actual path of reasoning included the finding that the intercourse had occurred. I note for completeness that any apparent inconsistency between trial judges can only be resolved by a higher court.

Ground 4

Ground 4 is based on the assumption that the Tribunal did not accept the evidence of Dr Lennings. I do not discern any basis in the reasons of the Tribunal for that assumption. The Tribunal appeared to accept that Dr Lennings considered the plaintiff's risk of re-offending to be low if the allegation were made out because he belonged to a cohort of persons with a relatively low risk of re-offending compared with other offenders. This was largely because the victim was the plaintiff's own daughter, rather than a child who was a stranger. As to the extent of the plaintiff's depression and his mood generally, the Tribunal was entitled to take into account its own assessment of the plaintiff who gave evidence before it, as well as any other evidence, such as the opinion of Dr Lennings.
The terms of s 18(2) required the Tribunal, as part of its obligation to make the correct and preferable decision, to decide whether it was satisfied that the plaintiff posed a risk to the safety of children. It could not delegate the requirement for its satisfaction to an expert, or to anyone else. Once the plaintiff had applied to the Tribunal for review of the decision of the Guardian to refuse the clearance, it was for the Tribunal to determine its satisfaction of the matters under the Act. Section 18(2) put the ultimate issue in terms of the satisfaction of the Guardian, and, on review, the Tribunal, that the person (in this case, the plaintiff) posed a risk to the safety of children. The Tribunal was obliged, when addressing this issue, to consider all the evidence, including the opinion of Dr Lennings. It was not obliged to accept that Dr Lennings' assessment of risk, which was based on statistical data and expressed to be a "risk of re-offending" was equivalent to "no real or appreciable risk" within the meaning of s 18.

Ground 5

The plaintiff submitted that the Tribunal was not entitled to admit as evidence the opinion of Senior Constable B that the plaintiff sexually assaulted the complainant and ought not be permitted to work with children in the future, which was based in part on the FACS report which concluded that the complainant was sexually abused by the plaintiff.
While wrongful admission of evidence can amount to an error of law, it is difficult to see how it could amount to an error of law in proceedings to which the rules of evidence do not apply and where it was not suggested that there was any relevant statutory prohibition. It was not submitted (nor could it have been) that the Tribunal, in substance, accepted Senior Constable B's opinion without any independent analysis of the whole of the evidence or that the Tribunal simply accepted the FACS report. It was a matter for the Tribunal to determine what material it would accept from the parties. I am not persuaded that there was any error of law in the course which the Tribunal took.

Ground 6

In [99] of its decision, the Tribunal recorded its finding that it was not satisfied that a reasonable person would allow his or her child to have contact with the applicant. Accordingly, it found, in accordance with s 30(1A)(a), that it was precluded from making an order enabling the plaintiff to work with children. Its reasons were that a reasonable person "knowing the matters to which the Tribunal has referred would consider that the applicant [plaintiff] poses a degree of risk which is unacceptable to that person in terms of sexual risk". Ms Andelman submitted that the effect of the reasons was that anyone against whom an allegation of sexual abuse had been made would fail the tests in s 30(1A) and would, accordingly, be precluded from obtaining a clearance. I am not persuaded that the Tribunal's reasons can fairly be read in that way. What was to be attributed to the reasonable person was knowledge of the matters to which the Tribunal referred: in other words, the reasonable person would be privy to all the evidence that was before the Tribunal.
In my view, the Tribunal was saying no more than that a reasonable person, knowing all that the Tribunal knew, would be satisfied that the plaintiff had had sexual intercourse with his 11-year old daughter and that the reasonable person would not, as a consequence, allow his or her child to have unsupervised direct contact with the plaintiff. I do not discern anything surprising about that conclusion. Because of the gravity of the plaintiff's conduct, the reasonable person test did not pose a difficult question for the Tribunal to answer. Having found that the plaintiff posed a risk to the safety of children, the Tribunal was exempted from the obligation to grant a clearance to him pursuant to s 18(2). There was no error in the Tribunal considering s 30(1A), which, if it applied, as the Tribunal found it did, would have prohibited the Tribunal from granting a clearance to the plaintiff in any event. This ground has not been made out.

Conclusion

As none of the grounds has been made out, the further amended summons ought be dismissed. The parties agreed that it was appropriate that costs follow the event.

Orders

For the reasons set out above, I make the following orders: 1. Dismiss the further amended summons. 2. Order the plaintiff 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: 21 June 2018

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)

Cited By (8)