DGS v Office of the Children's Guardian

Supreme Court of NSW|2019-08-22|Before: Fullerton J

Background to the risk assessment by the Children's Guardian in December 2016 and the review proceedings before the Tribunal in July-August 2018

The complaint of child sexual assault

The child participated in an interview with members of the Joint Investigation Response Team ("JIRT") on 19 June 2013 after a Report of Serious Harm, prepared by FACS pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW), was apparently forwarded for their attention after the child disclosed to her grandmother on 11 June 2013 that the plaintiff had removed her underwear and rubbed his fingers in her for vagina whilst simultaneously putting his hand in his underwear and rubbing his penis. These allegations were reported as "substantiated" by FACS although they were not repeated by the child when she was interviewed by JIRT and not particularised as the conduct the subject of the charges prosecuted at trial.
In the course of the JIRT interview on 19 June 2013, the child gave an account of the plaintiff having touched her on her vagina, under her "undies", on two occasions during two different play episodes, one of which involved playing "ice creams" and one of which involved "sea creatures". That account was accompanied by a physical demonstration of the alleged touching where she pointed to her genital area. As noted above, that aspect of the complaint, where the plaintiff put his hand on his penis, said to have been made to the grandmother and repeated by the grandmother to a child care centre worker, was not repeated in the interview. The child did tell the investigating officers that she had told her grandmother about the plaintiff touching her. She could not be specific as to the occasion she was touched although she said it happened on "Monday". At the conclusion of the interview, when she was asked whether she had told the truth in her conversation with police she said, "I think so, but I don't remember if it's true". When asked why she did not remember if it was true she said, "Because I think it was a bit, because it's a long, long time ago".

The plaintiff's criminal trial

The child gave evidence at the applicant's trial on 8 October 2015 having turned six years of age on 6 June 2015. In answer to questions asked of her by the Crown referable to what she had disclosed in the JIRT interview, she gave evidence that her father touched her on the inside of her vagina when she was playing "ice creams" with her brother while her mother was cooking lunch. (The suggestion that her mother was in the house when she was touched was volunteered for the first time in her evidence in chief.) She said that she did not tell her mother about the touching that day but told her grandmother about it "the day after". In cross-examination she gave details of the "ice cream" game in the course of which she confirmed that the plaintiff touched her on the vagina on the inside of her underpants and, although she did not see her father touch her and it was "very quick", she could still feel it "a teeny bit".
She confirmed that she told her grandmother that the plaintiff had touched her on the vagina and that she told her mother about it the following day. She gave the following evidence about the circumstances in which she complained to her grandmother: Q. … before you told grandma about daddy touching you, had she asked you any questions about daddy touching you? A. No, because she didn't know and then I told her. Q. Did you have an itchy vagina just around the time of your birthday? A. Yes. Q. Had it been itchy for a while? A. A couple of days and then it was gone. Q. It wasn't a bit longer, it wasn't for a couple of months maybe, that you had an itchy vagina? A. I don't - I don't know. Q. Did grandma ever say to you not to touch your vagina because you can get germs? A. Yes Q. Is that something that mummy and daddy had also said, not to touch your vagina because you can get germs? A. I can't remember. All I remember that grandma said it. Q. When grandma said it, don't touch your vagina because you might get germs, did you say anything to her then about daddy? A. Yes. Q. Was that the day you said something about daddy? A. Yes. Q. What did you say to grandma after she said don't do that, you can get germs? A. I said daddy made my vagina be itchy.
When she was asked why she told the interviewing officer at the conclusion of the first interview that she could not remember if "it" (the complaint of touching) was true, she said: Q. Was that the case, that you couldn't remember if it was true? A. I just said what I thought it was, cause I was very, very, very sure that it was, so I just said it. Q. Was it the case that you didn't remember if it was true? A. No, not completely. Q. What do you mean by not completely? A. Because I didn't completely know if it was true, or not true, but I was very, very sure that it was true.
The Crown adduced complaint evidence from the child's grandmother to the effect that the child told her that the plaintiff put his hands and fingers "inside [her] knickers" and that, later that evening, she told her daughter (the plaintiff's wife) what the child had said.
In summing up the evidence in the trial, the trial judge warned the jury, in conventional terms, that where the only direct evidence of the alleged offending was from a child they needed to be satisfied it occurred beyond reasonable doubt. He also directed the jury as to how they should approach the evidence of complaint and the evidence adduced by the plaintiff of his denials and his reliance on evidence of his good character.
The jury retired to consider its verdict at 12:48pm on 12 October 2015 and returned with verdicts of not guilty on all counts at 3:17pm the same day.

The Family Court proceedings

In proceedings in the Family Court of Australia in July 2016, the sexual assault allegations were raised in the course of a custody dispute in which the plaintiff's wife sought to deny the plaintiff access to his children. The plaintiff's wife filed affidavit evidence, as did her mother. It appears, however, that the allegation of sexual interference was not maintained. The proceedings settled on the second day of the hearing with the plaintiff's wife agreeing to a custody and access regime, allowing the plaintiff to spend time with his children under supervision for a period of months and with unsupervised access to commence in January 2017. Full custody of both children remained with the plaintiff's wife.
In preparing the assessment report for the purpose of the Family Court proceedings, Dr Lennings interviewed the plaintiff, his wife and both of their children. He also had access to the transcript of the criminal trial. It will be necessary to refer later in this judgment to the opinions ultimately expressed by Dr Lennings and the extent to which they were relied upon by the Tribunal in confirming the decision of the Children's Guardian to refuse to grant the plaintiff a Working With Children Check clearance.
In his affidavit filed in the proceedings before the Tribunal, the plaintiff annexed his wife's affidavit, filed in support of the consent orders issued in the Family Court proceedings, where she stated that she did not consider either of her children were at any risk of being "subjected to or exposed to abuse, neglect or family violence" or that she was at risk of being subjected to "family violence", and that she considered that there were appropriate and sufficient safeguards in the proposed parenting orders to provide for the best interests of the children consistent with her parenting obligations and those of the plaintiff. The orders included provision for the plaintiff and his wife to attend parenting courses. That regime was endorsed by the Family Court.

Application to the Children's Guardian

On 20 December 2016, the plaintiff applied to the Children's Guardian for a clearance under s 13 of the CPWC Act permitting him to work with children in the education child-related employment sector. It was a requirement of his continued full-time employment as a Course Information Coordinator with TAFE NSW that he hold such a clearance. Sections 6(2)(f) and (g) and s 8(1) of the CPWC Act and cl 10 of the Child Protection (Working with Children) Regulations 2013 (NSW) prohibit a person from engaging in child-related work unless that person holds a clearance or has made an application for the issue of a clearance. A breach of s 8(1) of the CPWC Act is a criminal offence.
The plaintiff was subject to a risk assessment by reason of ss 14 and 15(1) and Sch 1 cl 1(1)(b) and Sch 2 cll 1(1)(e) and 1(1)(h) of the CPWC Act because of the criminal charges laid in 2013 and prosecuted in 2015.
On 7 February 2017, the Children's Guardian imposed an interim bar on the plaintiff under s 17 of the CPWC Act, making it an offence for him to engage in any child-related role, whether paid or voluntary. He was invited to provide additional information in support of his application for a clearance. He submitted a signed letter from his wife dated 1 April 2017 in support of his application. That letter stated that the plaintiff's wife believed he was not a risk to their children or any other children and that the allegations against him with regard to the child complainant "have been proven to be unfounded". In further information requested by the Children's Guardian, she stated that although she had signed the letter, she had not written it. She stated that "if [she] was another mother, [she] wouldn't want [the plaintiff] to be around [her] children]". She told the Children's Guardian that she "didn't think it would be appropriate for [the plaintiff] to be around minors".
The Children's Guardian was satisfied that the further information: … negates the written reference [provided by the plaintiff's wife] and weighs against a finding in favour of [the plaintiff], and raises concerns in relation to [his] suitability to engage in child related work.
The Children's Guardian also considered a reference from the plaintiff's employer, Hugh Greenough, of 23 February 2017, in which the plaintiff was described as "a trustworthy and valued employee". On the basis of a subsequent letter from Susie George (from TAFE NSW) indicating that the reference was "not authorised nor written on behalf of TAFE NSW", the Children's Guardian regarded Mr Greenough's letter as a "character reference only".
On 22 September 2017, the plaintiff was notified by letter that the Children's Guardian had completed the risk assessment and that it proposed to refuse his application for a clearance. The plaintiff was invited to provide the Children's Guardian with further information in support of his application before a final determination was made.

The decision of the Children's Guardian

By letter dated 19 October 2017, the Children's Guardian informed the plaintiff that she had refused to grant him a clearance, being satisfied that he posed a risk to the safety of children, as provided for in s 18(2) of the CPWC Act. The reasons for that determination were included in that correspondence, referable to the discretionary factors provided for in ss 15(4) and 15(4A) of that Act. (These reflect the mandatory consideration in s 30(1) considered by the Tribunal in the review proceedings (see later at [53]-[54]).
The effect of the decision of the Children's Guardian is that the plaintiff is prevented from working in "child-related work" (ss 6(2)(f), 6(2)(g) and 8 of the CPWC Act; cl 10 of the Child Protection (Working with Children) Regulation 2013).
In refusing the application for a clearance, the Children's Guardian noted that the plaintiff had not furnished a statement outlining his version of events in response to the allegations of sexual abuse against his daughter, referring instead (via his solicitor) to the outcome of the criminal proceedings and the Family Court proceedings. The Children's Guardian also afforded "considerable weight" to the report by FACS on 27 June 2013 that followed the JIRT investigation on 19 June 2013 "substantiating" the allegation. The Children's Guardian reasoned as follows: The FACS material includes a detailed interview record of the alleged victim's JIRT interview, as well as witness statements and a copy of [the plaintiff's] ERISP transcript. Therefore, the Children's Guardian is privy to the evidence upon which FACS relied to substantiate the allegation, utilising the same (civil) standard of proof as the Children's Guardian. There is no available evidence to refute the finding made by FACS, and as such, [the plaintiff's] status as a Person Causing Harm means he may pose a risk to the safety of children.
That reasoning would appear to have been adopted by the Tribunal. It was the subject of Ground 6 of the appeal to this Court, as to which see later at [98]-[117].
The Children's Guardian reasoned further that because of what she described as the "recency" of the allegations of abuse, and that the plaintiff had only recently been permitted unsupervised access to his children, that: … there is a limited amount of time in which [the plaintiff] has been able to demonstrate good conduct around children without being subject to allegations. [The plaintiff's] employer reference indicates he has not had contact with children as part of his employment since 2013, when the allegations were made. With this in mind, the Children's Guardian cannot be satisfied that the behaviour outlined in the records will not reoccur.

The application for review by the Tribunal

On 15 November 2017, the plaintiff filed an application under s 27 of the CPWC Act in the Tribunal for review of the decision of the Children's Guardian.
The matter was heard on 23 July 2018. Further written submissions were filed after the hearing by both parties. Final submissions were filed by the Children's Guardian on 7 August 2018.
On 2 January 2019, the Tribunal affirmed the decision of the Children's Guardian and published reasons for its decision.

The Tribunal's decision

The Senior Member correctly identified the issue for determination as an inquiry into whether, having regard to the material tendered in the proceedings, including material not before the Children's Guardian, "the correct and preferable decision" is that the applicant be granted a Working With Children Check clearance. The Senior Member identified s 27(1) of the CPWC Act as the source of the Tribunal's jurisdiction. He also acknowledged that the jurisdiction exercised by the Tribunal is protective and not punitive (see Commission for Children and Young People v FZ [2011] NSWCCA 11 per Young J at [61]).
The Senior Member confirmed that in the review proceedings neither party had an onus of proof, that is, the Children's Guardian, as respondent to the review application was not obliged to prove the plaintiff posed a risk to the safety of children and the plaintiff was not obliged to prove he did not pose a risk of that kind. Despite the Senior Member's detailed consideration of the authorities that mandate that approach at [26]-[34] of his reasons for decision, it is the plaintiff's case that he misdirected himself at [190] by inverting the onus in such a way as to constitute an error of law (see the discussion in support of Ground 10 below).
The Senior Member confirmed that the factual findings which underpinned his reasons for decision were made referable to the evidence tendered or adduced in the hearing according to the civil standard of proof. He also acknowledged that procedural fairness and principles of natural justice apply to review proceedings and that the Tribunal has a discretion to act on material which it considers is rationally probative (Commission for Children and Young People v FZ).
The Senior Member referred to a number of decisions of this Court in guiding the approach he was obliged to follow in the exercise of the jurisdiction of the Tribunal to review the decision of the Children's Guardian.
It is unnecessary to set out the legislative provisions according to which the Tribunal reached its decision, save as to note that the paramount consideration in s 4 of the CPWC Act concerns the safety, welfare and well-being of children, in particular protecting children from "child abuse".
As to that issue, the Senior Member noted at [177] as follows: The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
As the Senior Member correctly observed, in determining an application for review under s 27 of the CPWC Act the Tribunal is obliged to consider the factors set out in s 30(1) as follows: 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 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 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 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.
The Senior Member considered the evidence referable to each of the statutory factors in s 30(a)-(k) above in [87]-[148] of the reasons for decision. He also noted that in the event that the Tribunal is satisfied that the applicant does not pose a risk to children, it is required by s 30(1A) of the Act not to make an order which has the effect of enabling a person (or the affected person) to work with children unless the Tribunal is satisfied: (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.
Having concluded that the applicant does pose a risk to the safety of children, the Senior Member noted, correctly, that s 30(1A) had no application. However, in the event that the Tribunal was found to be in error concerning its assessment of risk, the Senior Member regarded it as appropriate to give consideration to s 30(1A)(a). In that regard, particular reliance was placed upon the plaintiff's daughter having, in the view of the Senior Member, consistently maintained that she had been touched on the genitals by the plaintiff, including digital penetration. He went on to find: [179] ... There is a belief by the daughter that in fact she was sexually abused by her father. The applicant admits bathing naked with his daughter which at the very least constitutes boundary violations as said by Dr Lennings and with which the Tribunal concurs. [180] The applicant has exposed his children to domestic violence and Dr Lennings formed the view that the applicant and his former wife had a very conflictual relationship. The applicant appeared to Dr Lennings to lack emotional regulation skills. The applicant did not participate in therapy with Dr Milic with any focus on anger management or emotional regulation, according to Dr Lennings perusal of the notes produced by Dr Milic, and this accords with the Tribunal's perusal of the notes produced and the reports of Dr Milic. [181] The applicant's former wife "overall feeling was that something did happen" [to her daughter] based on her disclosures, and she did not think it was appropriate for the applicant to be around minors if there was no one else there and she would still be worried. The wife was cross-examined in the Tribunal and was a credible witness. The wife expressed herself carefully. 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 the Tribunal has referred to, would consider that the applicant poses a degree of physical and psychological risk which is unacceptable to that person. [182] This determination is consistent with the objects of the Act and takes into account the variety of the forms of abuse contemplated in the offence creating provision in section 227 of the Children and Young Persons (Care and Protection) Act 1998. [183] Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have 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. It is thus not necessary to consider the application of s 30(1A)(b).
These findings were the subject of the plaintiff's eighth ground of appeal. The plaintiff's counsel sought to agitate that ground of appeal only in the event that the Court did not find error in the Tribunal's primary findings.
After detailing the allegations of sexual abuse, the nature and extent to which they had been investigated by other agencies and the results of those investigations, and before dealing with each of the mandatory considerations, including the fact of the plaintiff's acquittal at trial, the Senior Member summarised the allegations of family violence which surfaced in the reports to FACS and NSW Police between May and September 2012 when the child made a complaint of sexual assault in June 2013. He also referred to the Department of Education Investigation report in [83] as follows: (1) That there was family violence in the relationship between the applicant and his former wife reported to either Family and Community Services and/or the NSW police between May and September 2012. (a) The applicant was verbally abusive towards his former wife in front of the children. (b) The applicant punched his former wife in the arm. (c) The applicant swore at his daughter and slapped her across the face. (d) The applicant pinched his daughter on the vagina or bottom. (e) The applicant frequently bit or pinched the children. (f) The applicant assaulted his former wife in front of the children, including a report that the daughter was so traumatised from witnessing domestic violence that she was imitating the applicant's violent behaviour towards her toys. (g) The applicant smacked his daughter across the back of the head after she rocked a chair over her brother's foot. (h) The applicant kissed the children whilst he had herpes. (i) The daughter described her father as "angry" and said in her interview with the police "he just gets angry and tells mummy what to do and what he wants her to do." (j) The daughter told Dr Lennings in 2016 that if the applicant did not like what her mother cooked he would throw the plate at her mother. (k) The daughter told Dr Lennings in 2016 that the applicant "pinched her and made bruises on her mum and wasn't nice to the cat." (l) The daughter told Dr Lennings in 2016 that she knew these things took place because her mother and grandfather told her, however the daughter as recorded by Dr Lennings "was able to recall a direct memory of her father pinching her, but she was unable to recall any other context about that." (m) The applicant's son told Dr Lennings in 2016 as recorded by him that his father was mean and punches a lot, but said that his mother, and grandparents told him this. (n) The observations of the children during contact with the applicant identified instances of the applicant's son being physically violent towards the applicant and the applicant's daughter and swearing at them. It was noted in a supervised contact visit report in 2016 that the applicant's daughter disclosed that her brother hits her and scratches her, and that the applicant's son said "when I get angry I hit and scratch [my sister]. I hit her a lot." It is alleged that the children have modelled this behaviour and that this is a result of exposure to domestic violence. (2) The Department of Education investigation report concluded that there was insufficient evidence to sustain allegations that the applicant had pinched his daughter on the vagina in 2012 or slapped his daughter on the face as she was jumping on his son on a later date in 2012. However, the report concluded that there was sufficient evidence to find the following allegations sustained, although the first two did not meet the threshold for misconduct. (a) The applicant hit his daughter on the back of the head when she told her mother he had pinched his daughter on the vagina. (b) The applicant hit his daughter across the back of the head after she rocked a chair over the applicant's son's ankle, or she was about to do that. (c) The investigation report concluded that there was sufficient evidence to find that the allegation that the applicant put his finger inside his daughter's vagina sustained, which met the threshold for misconduct. However, the ultimate decision maker concluded that there was insufficient evidence to sustain any allegation, although the basis of the departure by the decision maker from the recommendations in the investigation report is not made clear.
After noting the plaintiff had been acquitted at trial of the allegations of sexual abuse of his daughter, the Senior Member observed: [86] The daughter gave evidence in the District Court criminal trial and was cross-examined. The transcript of the 5 days of the District Court trial is contained within Exhibit 6. The daughter maintained that the applicant had touched her vagina on the inside: Exhibit 6 pages 187-208. The barrister appearing for the applicant cross-examined the daughter and challenged the allegation that the applicant had touched her on the vagina. The daughter responded to the challenge by insisting that he did touch her on the vagina. The later acquittal by the jury is consistent with the evidence not attaining the criminal standard of proof beyond reasonable doubt. The evidence of the daughter was not undermined by cross examination but she was very young when the events are alleged to have occurred.
For the purposes of the proceedings in this Court, it is not necessary to set out each of the findings made by the Tribunal referable to the mandatory considerations in s 30 of the Act. What follows are the Senior Member's principal factual findings.

The seriousness of the matters which caused the Children's Guardian to refuse a Working With Children Check clearance

The nature of the allegations which were said to be productive of the risk of harm, including the exposure of both children of the marriage to domestic violence, were described by the Senior Member as objectively serious, with the allegations of a penetrative sexual act described as "very serious" and the allegations of domestic violence and the exposure of the plaintiff's children to that violence were also described as "serious".

The period of time that has elapsed since those matters occurred and the conduct of the plaintiff since that time, including the age of the plaintiff at that time

The Senior Member noted that the plaintiff was aged between 38 and 39 years at the time the allegations of sexual abuse and domestic violence were made and aged 45 at the time of the hearing. He also noted the terms of the parenting orders made by consent in the Family Court and that the unsupervised contact the plaintiff has had with his two children since January 2017 has not been accompanied by any allegation of abuse or violence of any kind.
The Senior Member noted and accepted that these are factors which favoured the plaintiff's application for a Working With Children Check clearance. He also noted and accepted that without a clearance the plaintiff's financial position would be adversely affected which would impact upon his capacity to provide financial support to his children and to secure appropriate housing to enable him to have access to his children overnight.

The age of the plaintiff's children at the time of the allegations, their conduct at the time of the allegations and any matters relating to their vulnerability

The Senior Member noted the plaintiff's daughter was aged three to four years when the allegations of sexual abuse were made, with his younger child aged 18 months. The Senior Member considered the plaintiff was alleged to have engaged in behaviour which relied upon his dominance over both his children and his wife with his children being vulnerable witnesses to marital conflict and domestic violence.
While noting Dr Lennings' assessment that even if the alleged sexual abuse had occurred "there does not appear to have been any significant psychological impact on [the daughter] of such abuse", the Senior Member considered that the JIRT interviews contain "clear and resolute statements from the daughter as to the alleged abuse". He regarded the child as "unshakeable" in her conviction that the abuse occurred and considered that despite Dr Lennings' opinion that "confidence in a comment is not an indicator of its accuracy at [the child's] age", she was able to tell Dr Lennings that she knew the events occurred because her grandmother had told her that they did.
From this evidence the Senior Member reasoned at [105] as follows: It would therefore appear probable that the daughter will continue to believe that she was sexually abused by her father even if that abuse did not truly occur. The effect upon the daughter of that unshakeable belief is likely to cause her some psychological impact during her maturation.
This finding was the subject of Grounds 4 and 5 of the appeal, it being submitted by the plaintiff that it was a finding without evidential support and contradicted by the expert evidence of Dr Lennings.

The likelihood of any repetition of the conduct alleged and the impact on children of any such repetition

The Senior Member noted that the Children's Guardian did not submit that the evidence supported a positive finding that the disputed allegation of sexual abuse in fact occurred but, rather, that the Tribunal would "at the least hold a lingering doubt as to whether the [plaintiff] perpetrated at least some of the conduct alleged against him".
The plaintiff, on the other hand, invited the Tribunal to find the allegations of sexual abuse groundless. He relied upon his acquittal at trial, and the fact that the orders were made by consent in the Family Court, to argue against any finding on the probabilities that he poses any appreciable or real risk to the safety of children. The plaintiff gave evidence before the Tribunal that an application by police to extend the ADVO was withdrawn and dismissed on 26 November 2016. He also gave evidence that he had been reunited with his children after three years of separation from them between June 2013 and July 2016 and had, at the time of the hearing, enjoyed more than a year of unsupervised access with both children on a weekly basis.
The plaintiff went further in filed submissions and invited the Tribunal to find that his mother-in-law had coached his daughter to make false allegations about him and that the evidence of his former wife was biased and unreliable when she claimed an "overall feeling that something did happen to her daughter" given her evidence under cross-examination in the Family Court where she gave evidence that she found the allegations "hard to believe".
In circumstances where the plaintiff did not require the attendance of his mother-in-law for cross-examination, the Senior Member declined to make a finding adverse to her. Later in the reasons for decision, he expressly adopted a submission by the Children's Guardian that there was no evidence supporting the suggestion that the allegations of sexual abuse were initiated by the plaintiff's mother-in-law and motivated by malice; neither was the timeline of complaint supportive of fabrication or malice ([150]).
The plaintiff also relied upon the report of Dr Milic, a clinical and forensic psychologist, that he could find no indication that the plaintiff poses a risk to others, including his own children. The Senior Member noted that this opinion was not based upon any actuarial risk assessment or other structured risk assessment. He made no other reference to the content of Dr Milic's report.
The Senior Member also regarded the plaintiff's wife as a credible witness who expressed herself carefully, including under cross-examination. He dealt with the plaintiff's wife's evidence in some detail: [133] The applicant's former wife was questioned in person in these proceedings. Both parties had the opportunity to test her evidence. The applicant conceded that he prepared a letter signed by her sent to the Children's Guardian dated April 2017: Exhibit 5 volume 1 page 394. In that letter it is stated: "… 1. I believe that my ex-husband is not a risk to our children or any other children; and 2. Allegations against him with regards to our daughter… have been proven to be unfounded. I am aware that he runs a risk of losing his job if he is not given a working with children clearance and ask that you consider the above in providing him with the same." [134] The applicant's former wife also affirmed an affidavit in the Family Court in which she stated that the children "are not at risk of being subjected to or exposed to abuse, neglect or family violence" and that she did not consider that she was at risk of being subjected to family violence: Exhibit 5 pages 382-385. This affidavit addressed the issues of risk which were raised in the Family Court evidence so that consent orders could be made. [135] The applicant's former wife was telephoned in August 2017 by a Risk Assessment Officer employed by the Children's Guardian to discuss the letter dated April 2017 written to the Children's Guardian. As a result of that conversation the officer made filenotes. Those filenotes were raised with the applicant's former wife in the Tribunal hearing: Exhibit 5 volume 1 page 430-432. In her oral evidence the applicant's former wife agreed with the content of the filenotes which were made by the officer. The applicant's former wife wasn't confident in signing the letter due to the lengthy court processes and said that she "wouldn't have used the word 'unfounded'" to describe the allegations. The applicant's former wife said that she didn't think the applicant would do anything inappropriate with their children but "if she was another mother and knew that the applicant was charged with such offences, she wouldn't be happy for her children to have contact with him." The applicant's former wife stated that her "overall feeling was that something did happen" [to her daughter] based on her disclosures, and she did not think it was appropriate for the applicant to be around minors if there was no one else there. The applicant's former wife stated that she was of the view that it was "highly unlikely" that he would do anything else but she would still be worried. The applicant's former wife also stated that she doesn't think the applicant would do anything "physically" in a public place. This evidence is consistent with the oral evidence given to the Tribunal. [136] The applicant submitted that the Tribunal should not give weight to the non-expert assessment by the applicant's former wife. The applicant also submitted that the former wife did not see the alleged conduct but relied upon what the child said. It was the applicant who sought to rely upon his former wife's opinion by providing the letter in the first place. There is some incongruity between that position and in the criticisms which have been levelled at the credibility and veracity of the former wife's evidence. There is no reason arising from the circumstances in which it was placed before the Tribunal why her opinion should be discounted. The applicant's former wife "overall feeling was that something did happen" [to her daughter] based on her disclosures, and she did not think it was appropriate for the applicant to be around minors if there was no one else there and she would still be worried.
The Tribunal's treatment of the evidence of the plaintiff's wife was the subject of the third ground of appeal.
While emphasising it was for the Tribunal to form its own opinion about the likelihood of any repetition of abusive conduct by the plaintiff, or the risk of that occurring, independent of any expert evidence on that issue, the Senior Member did consider that the views of Dr Lennings in the assessment report prepared by him for the purpose of the Family Court proceedings in 2016 were instructive: [122] The applicant denied the allegations that he had touched his daughter's vagina or digitally penetrated her but he was aware that his daughter was touching herself (in that part of her body) and was concerned about it. Dr Lennings observed that the JIRT interviews with the daughter obtained a clear and resolute statement from her about which she was not shaken. It is also said by Dr Lennings that the daughter's sexualised behaviours at school and at home were "age normative", with elements of "self-soothing", which became a persistent habit possibly due to observing and reacting to parental conflict and the level of distress in the family: Exhibit 8 [152]. [123] Importantly, Dr Lennings noted that the applicant accepted that he had played a game in the bath with his daughter when they were both naked, although he denied that his daughter sat on his genitals, asserting that she sat on his tummy. The daughter referred to this game as 'playing boats with her Dad'. Dr Lennings expressed an opinion, "[t]his probably reflects issues around boundaries but not necessarily a sexual deviation if his account is accepted." Exhibit 8 [54]. [124] Dr Lennings stated: "…the allegation of child abuse is terribly fraught, and at a lower, civil standard, it is possible that a finding might occur that [the daughter] could be at risk." Exhibit 8 [159]. [125] It is this statement which refers the difference between the civil standard of proof and the criminal standard. It also conveys the inference that even though the abuse may not be established to either standard there is a possibility that there 'could be' a risk. This is the type of finding which the Supreme Court referred in BKE v Office of the Children's Guardian [2015] NSWSC 523, per Beech-Jones J, at [30]-[33], in relation to an application under section 28 of the Act for an enabling order: "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." [126] As previously stated, it is not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J. [127] In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17], His Honour considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts. [128] Here there is little possibility of making a finding that the abuse actually occurred for various reasons. Indeed, the submissions of the Children's Guardian did not advocate for a finding of actual abuse. But the Tribunal cannot on the available evidence reject the allegation as groundless, especially if Dr Lennings evidence is given the weight it should be given. [129] … [130] The applicant generally denied domestic violence in the relationship but did say to Dr Lennings that there were two occasions when he physically touched his wife. The first of those occasions was when he pushed his wife and the second occasion was when he "touched" her cheek or tapped her on the face with two fingers which he demonstrated to Dr Lennings: Exhibit 8 [13], [78]. The applicant also described to Dr Lennings that he touched his daughter's face with his finger: Exhibit 8 [13], [108]. The applicant also described to Dr Lennings an incident where the applicant grabbed the younger child and his daughter fell off his lap when there was some concern about her behaviour towards the younger child. The applicant states to Dr Lennings that he believed there was an overreaction on the part of the other parties to this incident: Exhibit 8 [87]. [131] The applicant told Dr Lennings that there were arguments in his marital relationship. In fact, Dr Lennings stated that there was a stream of verbal abuse and at least some physical abuse occurring in 2012. It is also stated by Dr Lennings that the history, including an incident in 1997 when the applicant threatened to kill himself and his then girlfriend without any ADVO being issued, suggests that the applicant is an emotional man who can be prone to "mouth off" at times but his violence propensity in general remains low: Exhibit 8 [153]. Dr Lennings formed the view that the applicant and his former wife had a very conflictual relationship. Both parties appeared to Dr Lennings to lack some emotional regulation skills: Exhibit 8 [25], [26]. The applicant did not participate in therapy with Dr Milic with any focus on anger management, according to Dr Lennings perusal of the notes produced by Dr Milic: Exhibit 8 [153]. Dr Lennings was not required for cross-examination on his report provided to the Family Court either in those proceedings, or in this application. The opinion is not to be discounted because it appears soundly based upon the admissions of the applicant and is a balanced observation of the relationship which existed between the applicant and his wife.
Insofar as concerns that aspect of Dr Lennings' report where he noted that the plaintiff acknowledged that he played a game in the bath with his daughter when they were both naked, with the plaintiff maintaining his denial that his daughter sat on his genitals, in Dr Lennings' view bathing with his daughter was likely to reflect "issues around boundaries but not necessarily a sexual deviation if [the plaintiff's] account is accepted". It was this state of affairs that was relied upon in the submissions of the Children's Guardian as supporting a finding that the plaintiff poses a continuing risk to the safety of children, it being submitted that the plaintiff had not addressed the boundary violations identified by Dr Lennings and had not dealt with the issues of domestic violence. Neither had he demonstrated any insight or understanding of the effects that witnessing domestic violence can have on children. At [165] (extracted in this judgment at [82]), the Senior Member expressly accepted the submission of the Children's Guardian as concerns the issue of boundary violations on the ultimate question whether he was satisfied that the plaintiff poses an unacceptable risk of harm to children.
That finding was the subject of the second ground of appeal, it being submitted that the Tribunal had failed to take into consideration the plaintiff's evidence in the Tribunal where he expressly addressed the issue of his insight into the boundary violation identified by Dr Lennings.
The Senior Member's ultimate finding as to whether the abuse allegations were established to the civil standard, expressed in the following paragraphs, places weight upon what he treated as the "substantiation of allegations" by others: [171] The Tribunal is not in a position to find to the relevant standard that the factual matters behind the allegations of sexual abuse actually occurred. There is, however, no persuasive reason to discount the finding made by others that the allegations were substantiated and they cannot be discounted as groundless. [172] Having regard to all of the matters referred to previously in these reasons it is the Tribunal's determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independently of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children's Guardian v CFW [2016] NSWSC 1406. [173] The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
The Tribunal's reliance upon what are described as the "substantial" allegations in [171] and at [173] as "tip[ping] the balance slightly in favour of a finding which does not support the applicant's denial of [the] allegations" was the subject of the plaintiff's first ground of appeal.

Ground 1: The Tribunal erred in that it disregarded critical items of information supplied by the plaintiff (in his evidence before the Tribunal) contrary to the mandatory obligation imposed by s 30(1)(j) of Child Protection (Working with Children) Act 2012

Section 30(1)(j) is in the following terms: The Tribunal must consider the following in determining an application under this Part - … (j) any information given by the applicant in, or in relation to, the application.
The "critical items of information" said by the plaintiff to have been disregarded by the Tribunal (whether deliberately or through inadvertence) were particularised in the plaintiff's submissions to include the plaintiff's evidence before the Tribunal where, under cross-examination by counsel for the Children's Guardian, he confirmed that he had gained insight concerning appropriate boundaries in the bathing and showering of his children, and confirmed the steps he had taken over the intervening year to address any risk of repetition of the conflict with his wife when he was residing with her and their children, including his attempts to diffuse any conflict and to ensure that the children are not exposed to family violence.
The following extracts from the plaintiff's evidence detail the extent to which both issues were explored in cross-examination: FRASER: And you are aware that Dr Lennings consider that [bathing naked with his daughter] to be his, he termed it a 'boundary violation' or a 'violation of appropriate boundaries'? PLAINTIFF: I came to know them yes. … FRASER: And, reflecting back now being aware of that, is that something you concede? PLAINTIFF: Well, yes. FRASER: Alright, and is that something you would now consider appropriate or inappropriate? PLAINTIFF: Appropriate. FRASER: Appropriate. PLAINTIFF: I mean to have the boundaries, yes. FRASER: To have the boundaries. I see. And how would you see what would appropriate boundaries be in this case now in that circumstance? PLAINTIFF: Well, at the time as a parent, you think of safety, you do not, I didn't even have the understanding of these violation of any sort. And so is my wife, we did what exactly she did, I did, [inaudible] the bath tub is quite deep and it goes quite high and we were concerned about the safety and so we never even thought of, on those lines. However, now that I have done parenting classes and it has been pointed to me by Dr Lennings, I do understand. … FRASER: Okay, certainly. And how would you deal with that kind of situation now? PLAINTIFF: As I am doing currently now, I have, however, my kids have grown now, my daughter is 9, my boy is 7, so I don't need to. I just need to make sure they're safe. They can do themselves, absolutely. FRASER: Now, I just want to move now to deal with various allegations of domestic violence, which you will be aware have been made at various times and this isn't dealt with in your affidavit so have to just go through them I'm afraid. … There was firstly an allegation that in relation to your daughter …, that in around April 2012, you pinched her on the vagina and hit her on the back of the head and when she told her mother. Do you remember, firstly, not asking if you agree with it being true, that there was such an allegation made? PLAINTIFF: Yes, allegations were made. FRASER: And what do you say about that? PLAINTIFF: It's totally untrue. FRASER: Alright, was there ever an instance where you recollect [your daughter] telling your ex-wife that she had pinched you on the vagina? PLAINTIFF: No. FRASER: None of it is true? PLAINTIFF: Absolutely not. FRASER: Next was an allegation made in May that you slapped [your daughter] on the face leaving a red mark? You recollect the allegation, is that right? PLAINTIFF: Yes. FRASER: You deny it. PLAINTIFF: Absolutely. FRASER: And you were aware that at various times there were a photograph tendered which were said to show a red mark. You remember that photograph? PLAINTIFF: Yes I do remember. FRASER: Do you deny that's what it showed. PLAINTIFF: Absolutely, yes. It was probably that she was teething, I don't know what was the reason. But it is definitely not ever me touching or hitting her. FRASER: Have you ever slapped [your daughter]? PLAINTIFF: No.
At [165]-[166] of the Tribunal's reasons for decision, extracted below, he dealt with the issue of boundary violations and the issue of domestic violence (both issues treated by him as material to the assessment of risk) by what appears to be an importation into the reasons for decision of the submissions of the Children's Guardian (also extracted below), filed before the hearing (and therefore before the plaintiff gave evidence). [165] The applicant accepted [in his consultation with Dr Lennings] that he had played a game in the bath with his daughter when they were both naked, although he denied that his daughter sat on his genitals, asserting that she sat on his tummy. The daughter referred to this game as 'playing boats with her Dad'. Dr Lennings expressed an opinion, "[t]his probably reflects issues around boundaries but not necessarily a sexual deviation if his account is accepted." The Children's Guardian submits that this evidence shows that the applicant poses a risk to the safety of children. This is a submission which is accepted as accurate. (Emphasis added.) [166] The respondent submitted that the applicant has not addressed the boundary violations outlined by Dr Lennings and has not adverted in his evidence to the issues of domestic violence. It was also submitted that the applicant has not demonstrated any insight or understanding of the effects that witnessing domestic violence can have on children. Indeed, the effect of the applicant's evidence is to minimise those events and does not evidence an understanding of the impact domestic violence has on children.
The submissions of the Children's Guardian read as follows: [91] It is submitted that in light of the alleged conduct there is evidence that the Applicant poses a risk to the safety of children. [92] It is important in this regard to note that the Applicant has accepted bathing naked with his daughter. In Dr Lennings' opinion, this at the least amounts to a boundary violation. This in itself also amounts to evidence that the Applicant poses a risk to the safety of children. [93] It is submitted that the material filed by the Applicant does not mitigate this risk. In particular, in his evidence the Applicant has not addressed the boundary violations outlined by Dr Lennings, and has not averted at all to issues of domestic violence. Neither has the Applicant demonstrated any insight or understanding of the effects that witnessing domestic violence can have on children.
The plaintiff's further submissions filed after the evidence dealt expressly with the plaintiff's evidence: [9] Both [the plaintiff and his wife] confirm that they have participated in parenting programs. [The plaintiff] also conceded that he has subsequently learnt from persons such as Dr Lennings that behavioural boundaries with regards to bathing or showering with young children should be observed and concedes that having baths with children and playing bath games may not be appropriate. However, he was only thinking of the children's safety when accompanying them at the time the allegation was made. Further, he did not think such conduct was a violation of such boundaries at that time, and would take a different approach in the future (noting that the children were somewhat older now and not requiring such close supervision when showering/bathing). … [15] [The plaintiff] confirms that he understands that a volatile relationship has a negative effect on the behaviour of children and notes that he learned better ways of communicating with [his wife] and from his perspective that they were trying their best to make the marriage work prior to the allegations being made. Allegations, which he maintains were initiated by his mother-in-law (a view which is rational and consistent with the evidence as it emerged from the Family Law proceedings).
The Children's Guardian's further submissions addressed the issues in the following way: [17] The Applicant accepted bathing with his daughter, although he states that he did not appreciate any issue of risk in that regard at the time. Dr Lennings classified this as a boundary violation. [18] The Applicant also accepts three instances of domestic violence. In relation to one of those he accepted putting two fingers on his daughter's cheek. In relation to [his wife], he accepted pushing her on the arm, leaving a bruise. The Applicant also accepted putting two fingers on [his wife's] cheek on a separate occasion. In submissions, he suggests that any family violence on his part was "explicably in response to the volatile nature" of the relationship between him and [his wife]. Such a submission seeks to minimise the seriousness of family violence. It also overlooks the deleterious effects that such violence has on children. … [20] In relation to the risk, the Respondent submits that an open finding regarding the disputed allegations that the applicant sexually abused [his daughter], along with the accepted boundary violations in relation to bathing with [his daughter], accepted instances of domestic violence, and reports to FACS regarding recent sexualised behaviour displayed by [his daughter] and her brother during contact visits, would lead the Tribunal to conclude that the Applicant poses a risk to the safety of children.
At [142] of the reasons for decision, when referring expressly to the obligation under s 30(1)(j) of the CPWC Act to take into account information provided by the plaintiff, he notes, correctly, that the plaintiff did not refer to the allegations of domestic violence in his filed affidavit. However, the Senior Member made no mention of the fact that the issue had been extensively canvassed with the plaintiff in cross-examination in the proceedings.
On the appeal the plaintiff submitted that in circumstances where the Tribunal accepted that it could not make a finding on the balance of probabilities that the events foundational to the abuse allegations that were made in 2013 occurred or, conversely, could not make a finding that they were unfounded, the ultimate issue for the Tribunal was whether, on the available evidence, it was open to find that the plaintiff posed a risk of harm to children, independent of any finding that the alleged offending occurred or probably occurred (see BKE v Office of Children's Guardian [2015] NSWSC 523 per Beech-Jones J at [30-[33]; Office of the Children's Guardian v CFW [2016] NSWSC 1406 per Harrison J at [14]-[17]).
In the plaintiff's submission, in undertaking that exercise it is apparent that the Tribunal placed considerable reliance on the issue of boundary violations and the issue of domestic or family violence and what the Senior Member seemed to treat as the plaintiff's failure to have insight into either issue (including what was said to be his minimisation of the effects of family violence witnessed by his children when they were living as a family) in reasoning to the ultimate conclusion that he continues to pose a risk of harm to children. The plaintiff submitted that his reasoning that way, without either referring to the plaintiff's evidence where he expressly addressed both issues or undertaking any analysis of the plaintiff's evidence for credibility purposes, amounted to legal error.
In BKE, Beech-Jones J applied what Basten JA had stated in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 at [10], namely that: "[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence. In either case, if it were a mandatory consideration, there would be an error of law."
In BKE, at [95], the Tribunal had omitted the plaintiff's explanation of an important event from its narrative of the plaintiff's evidence and then acted on the correctness of its omission to make a critical finding against him. It is the plaintiff's case that the Tribunal has done precisely that in the present case in making the ultimate finding that the plaintiff poses an unacceptable risk of harm to children.
In the submissions filed by the Children's Guardian on the appeal, it was conceded that the Tribunal did not make explicit reference to the plaintiff's evidence concerning either the issue of boundary violations or his evidence concerning domestic violence in the home at a time when the plaintiff and his wife were cohabiting with the children. It was also conceded that the Tribunal was required to have regard to that evidence. However, the Children's Guardian submitted that the plaintiff's evidence on both issues did not differ in any significant respect from the account he gave to Dr Lennings in preparation of his report in 2016 and, since the content of Dr Lennings' report was referred to by the Senior Member in the reasons for decision in some detail, no error of the kind contended for by the plaintiff has been made out.
The difficulty with that submission is that it diverts focus from what I am satisfied is a failure on the part of the Senior Member to aver at all to the evidence given by the plaintiff where he was specifically asked by counsel for the Children's Guardian to address his attitude to what had been identified by Dr Lennings in 2016 as a boundary violation involving bathing naked with his daughter sometime before June 2013, when she was aged three or four, and his attitude to what Dr Lennings described as a highly conflicted marital relationship with his former wife where both parties appeared to Dr Lennings to lack emotional regulation skills, an observation by Dr Lennings which the Senior Member treated at [131] as "balanced".
It is no answer to the error of law contended for by the plaintiff for counsel for the Children's Guardian to invite this Court to take into account on the question whether legal error has been made out that the Senior Member noted at [22] of his reasons that he had read the dissenting reasons of the General Member, which included a reference to the plaintiff's evidence under cross-examination and her finding that he was a "reliable and credible witness", in circumstances where the Senior Member said expressly at [22] that the General Member's reasons for her dissenting decision had not caused him to alter his views on the ultimate issue.
The resolution of the question whether the error contended for under this ground of appeal has been made out may have been different were the Senior Member to have made a different assessment of the plaintiff's credibility and reliability as a witness in the proceedings to that of the General Member or even a qualified adverse credit finding. However, he did not undertake that exercise. He limited his express finding that the plaintiff had minimised the extent of family violence to what the plaintiff had described to Dr Lennings in 2016 (see [158]) by his apparent acceptance of the submission of the Children's Guardian at [166] (set out at [82] above), without having made any reference to, or any assessment of, the plaintiff's evidence in cross-examination. Furthermore, the weight the Senior Member gave to what Dr Lennings had identified as a boundary violation many years earlier in the assessment of risk in concluding at [165] (also set out at [82] above) that he accepted the submission of the Children's Guardian that the fact of a boundary violation "shows the applicant poses a risk to the safety of children", without having undertaken any assessment of the plaintiff's evidence concerning that issue, particularly where his children are now above the age where they would be bathed by either parent, constitutes, in my view, a clear failure to take into account a critical aspect of the plaintiff's evidence.
Finally, I accept the submission by the plaintiff's counsel that CPD v Office of the Children's Guardian [2019] NSWSC 8 does not assist in the resolution of the question raised by the first ground of appeal. In that case, McCallum J (as her Honour then was) dismissed a ground of appeal which asserted that the Tribunal had failed to consider the plaintiff's oral evidence in breach of the mandatory obligation in s 30(1)(j) of the Act. In that case, however, unlike this case, the central issue before the Tribunal was whether it could make a positive finding, as urged upon it by the Children's Guardian, that CPD had in fact engaged in the impugned conduct, despite being acquitted at trial, by undertaking a retrospective analysis of the evidence adduced at his trial. That being the case, the almost exclusive focus of the submissions of both parties before the Tribunal was upon alleged inconsistencies in the complainant's evidence at trial. As her Honour noted at [47], the plaintiff himself made no submissions at all directed to his evidence before the Tribunal when he maintained his denials of abuse, and where that evidence, as her Honour noted at [48], did not take the matter any further than his sworn evidence in the criminal trial to which the Senior Member had expressly referred.
By contrast, in the instant case, the Children's Guardian did not invite the Tribunal to make a finding that the plaintiff had probably abused his daughter, but to make an "open finding" on that question leaving it open for the Tribunal, at the urging of the Children's Guardian, to conclude that because of boundary violations in relation to bathing the child when she was very young and instances of domestic violence in the family home prior to June 2013, the plaintiff continued to pose a risk in 2018 to the safety of children. To have failed to consider the plaintiff's detailed evidence bearing upon both of those issues and by failing to make any assessment at all of the plaintiff's credibility or reliability in light of that evidence was an error of law.
I am satisfied that the first ground of appeal is made out.

Ground 6

The sixth ground of appeal, fully particularised in the amended Summons but not repeated here, asserts that the Tribunal took into account an irrelevant consideration in the risk assessment it was obliged to make by according weight to the fact that, in its risk assessment report of July 2013, FACS had "substantiated" the complaint by the child of sexual abuse.
This issue attracted considerable oral argument at the hearing of the appeal.
The Senior Member refers to the findings contained within the FACS report tendered in the proceedings on a number of occasions in his reasons for decision.
Those references are set out in full below: [161] Family and Community Services "substantiated" the allegation of sexual abuse and identified the applicant as a person causing harm. There were subsequent reports made to Family and Community Services about disclosures said to have been made by the daughter. In addition to the allegations that the applicant had touched and penetrated the vagina, the daughter alleged that he had bathed with her naked, and a played game in the bath in which he sat her on top of his genitals in the bath whilst he was naked. The fact of substantiated allegations is evidence that Family and Community Services considered the allegations are established to the civil standard of proof. Dr Lennings previously quoted comments contemplate the possibility that a finding that the child is at risk could legitimately be made on the balance of probabilities. It is the Tribunal's view that the finding by Family and Community Services is persuasive evidence of the existence of risk but not evidence that could support a finding that abuse actually occurred in all the circumstances referred to previously. … [168] The dismissal of the criminal proceedings was a jury verdict in which it was not accepted that the evidence had established beyond reasonable doubt that the events had occurred as alleged. In the Family Court proceedings there was no determination as to the truth or accuracy of the sexual abuse allegations. The substantiation of the allegations by Family and Community Services tips the balance slightly in favour of a finding which does not support the applicant's denial of those allegations. … [171] The Tribunal is not in a position to find to the relevant standard that the factual matters behind the allegations of sexual abuse actually occurred. There is, however, no persuasive reason to discount the finding made by others that the allegations were substantiated and they cannot be discounted as groundless. (Emphasis added.)
Precisely what the Senior Member meant when utilising the concept of a "substantiated allegation" or the allegations having been "substantiated" is not clear. What that concept meant or how it should be taken into account, if at all, in the risk assessment with which the Tribunal was concerned was not the subject of submission by the plaintiff or the Children's Guardian at the hearing. The only reference to the FACS report by the parties was in the written submissions of the Children's Guardian, filed before the hearing, where the fact that FACS had "substantiated" the allegation of sexual abuse and identified the plaintiff as the person causing harm was noted. Although the Senior Member at [161] treated the fact of "substantiated allegations" as evidence that FACS treated the allegations as established to the civil standard of proof, a finding which he regarded as persuasive evidence of the existence of risk for the purposes of the risk assessment the Tribunal was undertaking, he did not make clear the basis upon which he took that approach; neither did he seek submissions from the parties as to whether that was an approach that was open to him as a matter of law.
It appears (and on the appeal the parties accepted) that a "substantiated allegation" is a term that found its way into the evidence before the Tribunal having been utilised by the author of the pro forma FACS report dated 16 July 2013 headed "Secondary Assessment Stage 2", prepared for the purposes of the Children and Young Persons (Care and Protection) Act and tendered in evidence.
The report is not signed and the assessor is not identified other than being a person within the "business process" of the Parramatta JIRT. It is in a pro forma format of seven pages which includes various subheadings as follows: 1. Pre-Assessment consultation - the location of the pre-assessment consultation and the parties present were identified by a range of acronyms not identified in the evidence. They included people by name but not as holding any particular office or having any particular expertise. 2. Assessment consultation - this field indicated that the children would be interviewed and a full assessment made of the circumstances of the complaint by JIRT. Counsel for the Children's Guardian submitted in these proceedings that the person who prepared the report must have had access to the JIRT interview because in a later field entitled "Information gathering" there is a reference to attachments described as a "SDM risk assessment narrative template", a document which was dated 28 June 2013 and which included a narrative summary of the child's first interview, together with a narrative summary of the complaint. The people to whom the complaint was made and who later reported the matter to FACS were anonymised. 3. Risk of Harm - a subheading of "Risk of Harm Analysis" providing fields for an assessment of the "Severity of Harm", "Risk of Harm" and the "Likelihood of Harm or Risk Continuing" were not completed at all. 4. Judgments and Decisions for [the child] - in fields providing for "Harm Consequence", "concerning" was recorded; in "Harm Probability", "unlikely" was recorded and then the following statement is recorded: "Risk of harm to [the child] has been substantiated" (emphasis added). 5. Person Causing Harm - under this subheading the evidence relied upon to establish "a person is causing harm" is identified as "witness statement/child statement", after which the following statement is recorded: "Actual harm has been substantiated under section 23" (emphasis added). The harm type is identified as sexual abuse.
Section 23 of the Children and Young Persons (Care and Protection) Act provides, relevantly for present purposes, that a report (defined as a report to the Secretary of the Department) under Parts 2 and 3 of the Act (including mandatory reporting) is to be made by a person who has "reasonable grounds to suspect that a child is at risk of significant harm". A "risk of significant harm" is defined as where "current concerns exist" for the "safety, welfare or well-being" of a child because of "the presence, to a significant extent", of any one or more of a range of statutory circumstances set out in ss 23(a)-(f), including s 23(c) where the child "has been, or is at risk of being, physically or sexually abused or ill-treated".
Section 30 of that Act then provides that on receipt of a report under Part 2 the Secretary is to make such investigations and assessments as the Secretary considers necessary to determine whether the child "is at risk of significant harm", with s 248 expressly providing that the Secretary may direct certain agencies, including the New South Wales police force, to furnish the Secretary with information concerning the "safety, welfare and well-being of a particular child".
The question raised by the plaintiff's sixth ground of appeal is whether, where the concept of a "substantiated allegation" of abuse in a report furnished under the Children and Young Persons (Care and Protection) Act does not find expression in that Act or in the CPWC Act, and where there is no other legislative basis for the Tribunal to equate a Report of Harm furnished under the Act for internal purposes to a finding that the underlying facts were established by FACS to the civil standard of proof, and where the Tribunal has made that finding and taken it into account in its assessment of risk, it has taken into account in an irrelevant consideration amounting to an error of law.
In the plaintiff's submission, where there was nothing advanced by way of evidence or argument as to the reasoning processes actually undertaken by the person who prepared the FACS report, and neither evidence nor argument directed to the standards employed by that person when completing the report, the finding that the risk of harm and/or actual harm (to the child) had been "substantiated" had no probative value in the risk assessment exercise in which the Tribunal was engaged and, that being the case, it was taken into account by the Tribunal as an irrelevant consideration. Re Benji and Perry [2018] NSWSC 1750 was cited as authority for that proposition.
Re Benji and Perry was decided under this Court's parens patriae jurisdiction to prevent orders made in the Children's Court being implemented. In that case, the Secretary of FACS sought to establish that there was a risk to the safety of two children, Benji and Perry, on the basis that they had been or may have been sexually abused by Mr and Mrs Thompson. The Secretary sought to rely on a decision by a FACS officer that the allegations of a third child that she had been sexually abused by the same people had been "substantiated" and that, in one way or another, Benji and Perry had been implicated in that abuse, in support of the findings sought by FACS. The countervailing evidence was from a psychologist who diagnosed the third child with a disorder, one manifestation of which was the making of false allegations of abuse against adults. It was the psychologist's opinion that the allegations were attributable to that disorder. There was therefore an issue in the proceedings as to the basis of the risk assessment by FACS as it related to the subject children and the evidence of the psychologist. In the course of the proceedings, McDougall J referred to the Department having "substantiated" the complaints of abuse by the children as to which he referred, with approval, to what was said by the Children's Magistrate in the following passage: [15] … The Department investigated, and found that the complaints were "substantiated". The learned Children's Magistrate, his Honour Magistrate Williams, described, in a way that does not appear to be controversial, what was meant by saying that the complaints were "substantiated": At this point it is appropriate that I make some comment on the notion that the abuse allegations have been "substantiated". At its highest, "substantiation" is an indication that some person, upon reviewing all the unavailable evidence, has reached a determination that the allegations were true. I have not been told whether any particular process, expertise, or standard of proof was employed in that process. It must certainly have been the case that the person who substantiated the allegations did so without having been informed of [the psychologist's] competing hypothesis. Substantiation is nothing more than a value judgment made by another person who, in this case, did not have all of the evidence that the Court has heard. It is not something which renders an allegation into fact or binds any subsequent fact-finder.
The plaintiff submitted that on this analysis it was an error for the Tribunal to have placed any weight at all upon the "substantiation" of an allegation in a report furnished for the statutory purposes comprehended by the Children and Young Persons (Care and Protection) Act, much less to take the fact that the allegations were "substantiated" on the balance of probabilities into account as a factor "tipping the balance" in favour of a finding adverse to the plaintiff by treating the allegation (said to have been "substantiated by FACS") as a fact capable of contradicting the plaintiff's denials in his evidence that the sexual offending occurred.
Counsel for the Children's Guardian submitted that although there was nothing in the evidence before the Tribunal to support the proposition that the "substantiation" of the allegation of sexual abuse by FACS amounted to a finding by them that the allegations were established to the civil standard of proof, and no submission advanced by counsel to that effect, the fact remains that the author of the FACS report did report that both the risk of harm and actual harm had been "substantiated". That is, the author of the report must, at the very least, be taken to have based that finding on the fact that she had reasonable grounds to suspect that the child was at risk of significant harm because of the risk of sexual abuse being present "to a significant extent" - the test under s 23 of the Children and Young Persons (Care and Protection) Act. Counsel submitted, on that analysis, a finding that the allegations were established on the probabilities was, or might have been, open to the Tribunal.
Counsel for the Children's Guardian further submitted that by the Senior Member taking the findings of FACS into account as one of a number of factors in the assessment of risk, the Senior Member has not taken into account an irrelevant consideration despite the fact that he used the concept of a "substantiated allegation" as a factual finding established to the civil standard without any statutory basis for treating it that way. Moreover, counsel submitted that by the Senior Member regarding the substantiated FACS allegation as evidence that "tips the balance slightly in favour of an adverse finding" suggests that only slight weight was accorded to it.
Counsel for the Children's Guardian submitted that unlike the case of Re Benji, in this case the material available to the person who prepared the report was set out in detail. Further, unlike the position in Re Benji, no subsequent expert evidence was adduced on the question whether the allegation of abuse was false. It was on that analysis that the Children's Guardian sought to distinguish Re Benji. I do not consider the decision to be so readily distinguishable.
While the factual context in Re Benji was different to the context in which the issue of a complaint or allegation of sexual abuse reported as "substantiated" arose in the proceedings before the Tribunal, I see no reason to treat the FACS risk assessment report tendered in the Tribunal proceedings any differently from the way in which McDougall J treated a report of "substantiated abuse allegations" in the proceedings with which his Honour was concerned, namely as a value judgment made at a particular point in time by a person, based on the information available to that person, which not only does not bind any subsequent fact finder, and where the probative value of the fact that an allegation of abuse was "substantiated" diminishes where there is no evidence as to the expertise of the person undertaking that assessment or the standard of proof that was employed in that process.
I am satisfied it was an error for the Tribunal to have treated what the author of the FACS report reported as a "substantiated allegation" as evidence that FACS considered the allegation established to the civil standard of proof. There was nothing in the legislation under which that report was prepared which permitted him to take that approach.
That is not to say that the FACS report ought not to have been tendered in the proceedings. The error is in the way in which the Tribunal dealt with it. At its highest, in my view, the report was nothing more than an indication that the author of the report, upon his or her review of the available material as at 16 July 2013, had formed the view that there was a reasonable basis for suspecting that the child was at risk of significant harm because of the risk of sexual abuse being present "to a significant degree". In my view, a report prepared under the Children and Young Persons (Care and Protection) Act in accordance with the specific statutory objects in that Act cannot equate with a finding of fact that the allegation of sexual abuse has been established to the civil standard of proof in review proceedings. Despite the fact that the Tribunal limited its reliance on the "substantiated allegations" as persuasive evidence of the existence of risk, as distinct from it supporting a finding that abuse actually occurred, by treating the "substantiated" allegations as evidence of an allegation being established to the civil standard of proof on the question of the existence of risk such as to "tip the balance" against a favourable finding, was to take into account an irrelevant consideration.
The sixth ground of appeal has been made out.

Ground 4: The Tribunal erred in finding that Dr Lennings observed the child to be adamant in maintaining the allegation of sexual abuse and in acting upon that erroneous finding such as to cause the exercise of its function to miscarry

Ground 5: The Tribunal erred in making findings contrary to the expert evidence and findings not available on the evidence without giving the plaintiff an opportunity to be heard resulting in a breach of procedural fairness

Ground 7: The Tribunal erred in finding that the child believed she was sexually assaulted by her father in circumstances where there was no evidence to support that finding or, alternatively, that it was taken into account as an irrelevant consideration

At the hearing of the appeal and to an extent in the written submissions filed by the parties in advance of the hearing, these three grounds of appeal were treated as overlapping, in the sense that they concern the content of aspects of Dr Lennings' report of 13 March 2016 and the findings made by Tribunal said to be based on that report which were either erroneous or inaccurate, or factual findings for which there was no evidence or which were contrary to the evidence.
Dr Lennings' report was lengthy and detailed, extending over 60 pages. As noted earlier it was prepared for the purposes of the Family Court proceedings.
In support of the fourth ground of appeal the plaintiff submitted that the Tribunal's attribution to Dr Lennings at [121] of an observation that the "child was adamant in her allegations about her father" was wrong given that Dr Lennings had reported that the child had no independent recollection of ever having been sexually touched by the plaintiff but that she "knew" she had been touched because she had been told by others that it had occurred. The plaintiff submitted that given the Tribunal had also specifically noted other aspects of Dr Lennings' report where he observed that the child had, in his view, "come to strongly support and repeat the notion that her father has touched her on the vagina" but that "confidence of a disclosure is no guide to accuracy in a four-year-old child if they have been exposed to suggestible questioning as she was then" (apparently a reference back to the circumstances in which the complaint was made in June 2013), the Tribunal's attribution to Dr Lennings of an observation that the child was adamant in her allegation was impossible to reconcile with other evidence on the issue.
The Children's Guardian submitted that on a fair reading of the Tribunal's analysis of the various views expressed by Dr Lennings throughout the body of his report, including an additional passage where he noted that the child was resistant to any suggestion that the event did not happen and that he obtained what he described as a "clear and resolute statement from her about which she was not shaken", the complaint the subject of the fourth ground of appeal is not made out. I accept that submission.
I also accept the submission of the Children's Guardian that the plaintiff's complaint the subject of the seventh ground of appeal is not made out. In advancing that ground of appeal the plaintiff contended there was no evidence to support the Tribunal's finding at [179] (extracted in this judgment at [55]) that the child believed (or that she was of the belief) that she was in fact sexually abused by her father, given that, as Dr Lennings makes clear in his report, her belief was not based upon any actual recollection or memory of the event but upon what others had told her, despite being unshakeable in her conviction that she was abused. With Dr Lennings' analysis of the child's state of mind or belief as to whether she was assaulted qualified in that way, I consider it was open to the Tribunal to make the observation that the child maintained her belief that she was assaulted.
It was further submitted by the plaintiff in support of the seventh ground of appeal that the child's state of mind in 2016 (as to whether she was sexually abused by her father and the basis for that belief) was, in any event, irrelevant to the question with which the Tribunal was concerned, namely whether it was satisfied by the evidence assembled for the hearing in July 2018 that the plaintiff posed a risk of harm to children. I am satisfied that the child's state of mind was taken into account by the Tribunal permissibly in the sense that although the Children's Guardian did not press for a finding on the balance of probabilities that the abuse occurred, the fact that she remained adamant that the abuse did occur, however heavily qualified that statement was, still bore relevantly upon the issue agitated by the plaintiff in the proceedings, namely that the abuse allegation was groundless.
The fifth ground of appeal as particularised and as developed in the plaintiff's written submissions is directed to the way in which the Tribunal dealt with the particular aspect of Dr Lennings' report at [162]: Dr Lennings assessed in his report to the Family Court that even if sexual abuse had occurred, "there does not appear to have been any significant psychological impact on [the daughter] of such abuse." The occurrence of self-soothing behaviours in this context is not consistent with there being no impact on the daughter. The qualification of "significant psychological impact" is relative and hopefully there remains minimal impact upon the child. It is probable, however, that the daughter will continue to believe that she was sexually abused by her father even if that abuse did not truly occur. The effect upon the daughter of that unshakeable belief is likely to cause her some adverse psychological impact during her progress to adulthood. (Emphasis added.)
The plaintiff submitted that those parts of [162] emphasised in bold, expressed as positive factual findings, are both contradicted by the expert opinion of Dr Lennings that the self-soothing behaviour was the result of observing and reacting to parental conflict and that he could discern no indication of trauma in the child's presentation at interview, and made without evidential support. It was further submitted that, to the extent the Tribunal proposed to substitute its own views for that of the expert evidence, or to reject some aspect of the expert evidence that the parties had not put in contest, procedural fairness dictated that the plaintiff be given an opportunity to be heard on that question, including an opportunity to put a position contrary to the approach the Tribunal proposed to take.
On the hearing of the appeal, the Children's Guardian submitted that even were the Tribunal to be found to be in error in the approach taken to the factual findings that are impugned under the plaintiff's seventh ground of appeal, including the plaintiff's submission that the findings were made without a proper evidentiary basis, those particular findings were wholly immaterial to the Tribunal's statutory task, being an assessment of the risk to children posed by the plaintiff, which involved an assessment of the allegations of abuse themselves but not the effect of the allegations on the subject child. That being the case, although the Children's Guardian accepted that the impugned passages were irrelevant, it was not a matter that impacted materially on the Tribunal's determination that the plaintiff poses a continuing risk of harm to children and for that reason would not, of itself, justify the relief the plaintiff seeks.
Given that I am satisfied that the plaintiff has demonstrated legal error the subject of Grounds 1 and 6, and that the appropriate order is that the matter be remitted to the Tribunal, differently constituted for rehearing, it is unnecessary for me to consider whether the error the subject of Ground 5, standing alone, would have justified the relief the plaintiff seeks.

The remaining grounds of appeal

It is also unnecessary to engage in a detailed analysis of the remaining grounds of appeal, including Grounds 2 and 3, each of which are said to reflect a failure on the part of the Senior Member to consider the evidence in its full and proper context for the purposes of a consideration of the mandatory factors in s 30(1) of the CPWC Act and the discretionary consideration of the test in s 30(1A). It is also unnecessary to engage in a detailed analysis of Ground 8 which is a complaint that the Senior Member's assessment of the evidence of the plaintiff's former wife to the effect that she had "an overall feeling that something had happened [to the child]" and her further expressed view that, although she did not think the plaintiff would do anything inappropriate with their children, if another parent knew that her husband had been charged with sexual offences she would expect that person would not be "happy for any child to have contact with him" (on the basis of which the Tribunal concluded that s 30(1A) had been invoked to refuse the plaintiff a Working With Children Check clearance) was irrational and against the preponderance of the evidence, or Ground 9 which complains that the combination of both legal and factual errors the subject of preceding grounds of appeal are such that the decision of the Tribunal to refuse a clearance was irrational or unreasonable.
In circumstances where, error having been found, the matter is to be remitted to the Tribunal for a fresh review of the decision of the Children's Guardian in 2016 to refuse the plaintiff a Working With Children Check clearance, and where I have no doubt the Children's Guardian as respondent to that review will give fresh consideration to the attitude it takes to the plaintiff's application for a clearance permitting him to engage in meaningful employment in an educational setting where adolescents and young adults are to be educated, in particular where the Children's Guardian does not seek a finding that the allegations of abuse which were raised in 2013 occurred on the balance of probabilities, it is inappropriate to comment upon whether a reasonable decision-maker would conclude that the plaintiff no longer poses a real and appreciable risk to children.
In addition, although Ground 10 of the plaintiff's amended Summons contends the Tribunal applied the wrong legal test in determining the ultimate question, namely whether it was satisfied that the correct and preferable decision, having regard to all of the evidence, was to confirm the decision of the Children's Guardian by inverting the onus of proof, in the plaintiff's submissions in reply that complaint was diluted. That is not to say that the plaintiff abandoned Ground 10. However, where I am satisfied a number of legal errors have been demonstrated such as to warrant the decision of the Tribunal being overturned, it is unnecessary to consider further the finally posed arguments of the parties advanced in support of Ground 10.

Orders

I make the following orders: 1. Leave granted to extend the time for filing the amended Summons. 2. Appeal allowed. 3. The decision of the Civil and Administrative Tribunal of 2 January 2019 be set aside. 4. The plaintiff's application for a review of the refusal by the Children's Guardian to grant him a Working With Children Check clearance be remitted to a differently constituted Tribunal for determination in accordance with law. 5. The defendant is to pay the plaintiff'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: 26 February 2020

Child Protection (Working with Children) Regulations 2013(NSW)

Solicitors: The Law Shoppe (Plaintiff) Crown Solicitor of NSW (Defendant) File Number(s): 2019/111711 Decision under appeal Court or tribunal: Civil and Administrative Tribunal (NSW) Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 302 Date of Decision: 2 January 2019 Before: M Anderson, Senior MemberE Hayes, General Member File Number(s): 201700345435

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Judgment (20 paragraphs)

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Legislation Cited (5)

Cases Cited (8)