CGB v Children’s Guardian

1. [1]

   HER HONOUR: This is a review of a decision of the NSW Civil and Administrative Tribunal (“the Tribunal”) dated 9 June 2017 in CGB v Children’s Guardian [2017] NSWCATAD 182.

2. [2]

   CGB appeals to this Court pursuant to Schedule 3, s 17(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The appeal is limited to a question of law.

3. [3]

   By amended summons filed 1 December 2017, CGB seeks orders that firstly, the appeal be allowed; secondly, that the decision of the NSW Civil and Administrative Tribunal (“NCAT”) be set aside; thirdly, that the matter be remitted to the NCAT, to be heard and determined by a differently constituted Tribunal; and finally, that the defendant pay the plaintiff’s costs. The plaintiff relied upon the affidavit of his solicitor, Matthew Lawrence Butt, dated 29 September 2017, which annexed the transcript of proceedings before NCAT and NCAT’s decision.

4. [4]

   At the commencement of the hearing, by consent, the defendant’s name was amended to the Children’s Guardian.

5. [5]

   The plaintiff in these proceedings is CGB who was also the plaintiff in the NCAT proceedings. The defendant is the Children’s Guardian who was also the defendant in the NCAT proceedings. For convenience, I shall refer to the parties by name.

6. [6]

   Also at the commencement of the hearing in this Court, by consent, I made orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the grounds specified in s 8(1)(e) of the Act, that the name and address of CGB and any child referred to in the evidence before this Court or in the NCAT proceedings; and the name and address of any other person whose publication would identify their names and addresses, not be published without the leave of the Court.

7. [7]

   In the NCAT proceedings, the Tribunal affirmed the decision of the Children’s Guardian to refuse CGB’s application for a working with children check clearance.

Background

1. [8]

   CGB is presently 63 years old. He has been in a relationship with AB since 1989. CGB and AB have had four children together. AB also has nine children from prior relationships, including child A and child B. (Plaintiff’s Submissions, [22]).

2. [9]

   In June 1999, child A (then aged 16) alleged that CGB had sexually assaulted her from mid 1998 to May 1999. This was said to have occurred in the home she shared with CGB, her mother and her siblings. The abuse allegedly occurred on a weekly basis in a back room of the house. (Plaintiff’s Submissions, [23]-[24]).

3. [10]

   In January 2000, CGB was charged with two offences of aggravated sexual assault of child A pursuant to s 61J of the Crimes Act 1900 (NSW). Child A was cross examined at a committal hearing in the Local Court by CBG’s then counsel and CGB was committed for trial. (Defendant’s Submissions, [4]). In April 2001, he was acquitted by a jury. (Plaintiff’s Submissions, [25]).

4. [11]

   In December 2000, child B (then aged about 13 or 14 years) alleged that CGB had indecently assaulted her on one occasion in the laundry of their home earlier that year. Her brother, child OB, also alleged to police in December 2000 that he had witnessed CGB committing a suspected indecent assault on child B in that laundry. (Plaintiff’s Submissions, [26]).

5. [12]

   In July 2001, CGB was charged with one count of indecent assault pursuant to s 62 of the Crimes Act. This charge was later withdrawn by the Director of Public Prosecutions. The reason for doing so was that child B did not want to continue with the matter, and without her evidence, there was no reasonable prospect of conviction. (Defendant’s Submissions, [7]).

6. [13]

   CGB has always denied all the allegations of sexual assault. (Plaintiff’s Submissions, [27]).

7. [14]

   There is evidence that child A and child B had been in contact with CGB and AB in recent years, including a period of time when child B and her daughter lived with them. (Plaintiff’s Submissions, [28]).

8. [15]

   CGB acknowledged to the Tribunal that he had a past history of alcohol abuse and had previously committed assaults upon AB (his partner) when he was intoxicated. (Plaintiff’s Submissions, [29]).

9. [16]

   Since about January 2013, CGB and AB had been caring for their grandson, GA. In December 2014, GA was subject to care orders in the Children’s Court of New South Wales allocating shared parental responsibility for GA to GA’s father and AB. (Plaintiff’s Submissions, [30]).

10. [17]

    At the time of the care orders were made, Community Services and the Children’s Court of New South Wales were aware of the fact that GA would be living with his father, AB and CGB in CGB’s home. They were also aware of the allegations made by child A and child B. (Plaintiff’s Submissions, [31]).

11. [18]

    As at December 2016, Community Services had not received any report outlining concern in relation to the care that GA was receiving at CGB’s home. (Plaintiff’s Submissions, [31]).

12. [19]

    On 26 August 2014, CGB applied to the Children’s Guardian for a working with children’s check clearance as AB was an authorised carer of GA. (Plaintiff’s Submissions, [32]). Section 10(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) requires persons residing in the same property as an authorised carer must hold a clearance under that Act.

13. [20]

    On 13 October 2015, following a risk assessment of CGB, the Children’s Guardian refused to grant him a working with children’s check clearance pursuant to s 18(2) of the WWC Act. (Defendant’s Submissions, [10]).

The working with children statutory regime

1. [21]

   It is necessary to briefly refer to the relevant provisions of the WWC Act.

2. [22]

   The Tribunal referred to the relevant provisions of the WWC Act in its reasons for decision at [7]-[20] as follows:

3. [23]

   It is helpful here to add ss 27, 28 and 30 of the WWC Act. These read:

The decision of the Civil and Administrative Tribunal of New South Wales (NCAT)

1. [24]

   The Tribunal comprised of S Higgins, a Principal Member, and R Royer, a General Member (“the Tribunal”).

2. [25]

   CGB sought an administrative review of a decision of the Children’s Guardian to refuse his application for a working with children check clearance (a clearance): see (WWC Act) s 18(2) and s 27(1). The Children’s Guardian, through her delegate, determined to refuse CGB’s application for a clearance in October 2015, as Children’s Guardian was satisfied, after conducting a “risk assessment” in accordance with ss 14 and 15 of the WWC Act, that CGB posed a risk to the safety of children: WWC Act, s 18(2).

3. [26]

   The Tribunal accepted that the word “risk”, in the context of the WWC Act, should be given the same meaning as it was given in Commission for Children and Young People v V [2002] NSWSC 949, where Young CJ at [42] stated:

4. [27]

   The reason CGB had made an application for a clearance was because AB, is the carer (authorised under s 137 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)) of their grandson AB, who is the son of their second eldest son: see WWC Act, s 10(1) which requires persons residing on the same property as an authorised carer must hold a clearance under that Act.

5. [28]

   Children’s Guardian was required to undertake a risk assessment because a number of “trigger events” prescribed in Schedule 1 of the WWC Act applied to the applicant. These “trigger events” are the events described in [9]-[11] of this judgment.

6. [29]

   The Tribunal stated that the primary issue for it to determine was whether, as at the date of hearing, NCAT could be satisfied CGB posed a risk (ie, a real and appreciable risk) to children if he were granted a clearance to work in child related-work, which is broadly defined in ss 6 and 7 of the WWC Act. The Tribunal affirmed the decision of the Children’s Guardian.

7. [30]

   In the Tribunal proceedings, CGB and AB swore affidavits, gave evidence and were cross examined. CGB also relied upon a report of Dr Christopher Lennings, a forensic psychologist.

8. [31]

   Children’s Guardian relied upon a large volume of material. This included CGB’s criminal history, the risk assessment which was conducted of him and material which related to the charges in respect of child A and child B, as well as the police facts concerning a charge laid against CGB in 2003 for assaulting AB.

9. [32]

   The Tribunal in its decision set out the applicable legal principles at [55]-[58]:

10. [33]

    The Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111 (“FZ”); Roberts v Balencio (1987) 8 NSWLR 436.

11. [34]

    The Tribunal then addressed each of the matters set out in s 30(1) of the WWC Act. In respect of subparagraph (a) “seriousness of the matters that caused a refusal of the applicant’s application for a clearance”, the Tribunal made the following observations at [61]-[65] and [71]-[72]:

12. [35]

    After the Tribunal addressed the material before it, including the sworn evidence given by CGB and AB concerning their interactions with child A and child B, it reached the following conclusions at [81]-[84]:

13. [36]

    In respect of s 30(1)(b) “the period of time since those offences or matters occurred and the conduct of the person since they occurred”, and subparagraphs (c)-(e) the vulnerability of the victims and the age difference between the victims and CGB, the Tribunal at [85]-[88] made the following observations:

14. [37]

    The Tribunal referred to subparagraph (h) “the seriousness of the applicant’s total criminal record” in the following terms at [94]-[97]:

15. [38]

    The Tribunal turned to consider subparagraph (i) “the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition”. On this topic, CGB relied heavily upon the opinions expressed by Dr Lennings in his report. The Tribunal summarised Dr Lennings’ report and set out parts of the risk assessment that Dr Lennings had undertaken in respect of CGB. In particular, it had regard to Dr Lennings’ conclusion that CGB posed a low risk to children, including his view that it was difficult to believe that child A and child B would relocate to the parental home if they genuinely had been abused in the way they described ([104]).

16. [39]

    The Tribunal also observed at [105]:

17. [40]

    Finally, in respect of Dr Lennings’ evidence, the Tribunal stated at [111]-[112]:

18. [41]

    Having reviewed all the material, the Tribunal arrived at the following conclusions at [116]-[124]:

19. [42]

    The Tribunal determined that the decision of the Children’s Guardian was the correct and preferable decision and should be affirmed.

Grounds of appeal

1. [43]

   The grounds of appeal as ultimately argued were as follows:

   1. (1)

      The Tribunal erred in the use it made of evidence of prior representations that had been admitted for a non-hearsay purpose only;

   2. (2)

      Alternatively, or further to ground 1, the Tribunal erred by failing to consider the information given by CGB in, or in relation to, the application as required by s 30(1)(j) of the WWC Act; and

   3. (3)

      The Tribunal erred in failing to give sufficient reasons as to:

2. [44]

   I shall deal with the main ground of appeal, ground 1, followed by ground 3 and finally ground 2. Ground 3 sets out the framework as to what constitutes sufficient reasons for NCAT and that follows on to ground 2.

Ground 1 – Did the Tribunal err in the use it made of evidence of prior representations that had been admitted for a non-hearsay purpose only?

1. [45]

   To place this submission in context it is important to observe the basis upon which the Tribunal decided to use the material before it in relation to the allegations of sexual abuse. The Tribunal at [32] stated:

2. [46]

   In his submissions, CGB referred to the procedural history of the matter before the Tribunal. It is not necessary to further consider this material as CGB, while objecting to the admission of that evidence for a hearsay purpose, did not object to its admission for a non hearsay purpose.

3. [47]

   At the outset of his oral submissions in this Court, counsel for CGB indicated that his principal focus of the appeal would be directed to this ground (T4.1). His starting point was the oft quoted passage from the High Court of Australia’s decision M v M (1988) 166 CLR 69; [1988] HCA 68 (“M v M”). M v M concerned an appeal to the High Court on the basis that a father had allegedly sexually abused his child and that the child’s welfare would be put at further risk by allowing the father access to the child. Counsel referred to the following passage of M v M at [23] where the High Court stated at [23]:

4. [48]

   Although not referred to by counsel, the High Court in M v M also observed at [21]-[22] and [24]-25]:

5. [49]

   Counsel for both parties referred to BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 (“BKE”), where Beech-Jones J considered an application for an enabling order pursuant to s 28 of the WWC Act. For any application made under s 28 of the Act, the applicant for the enabling order bears the onus of proving that they are not a risk to the safety of children, it being a presumption that the applicant in such cases does pose a risk to the safety of children: s 28(1) of the WWC Act. While his Honour was considering an application under s 28 of the WWC Act, his observations are nonetheless pertinent to the case before this Court.

6. [50]

   Beech-Jones J at [33] stated:

7. [51]

   Counsel for the Children’s Guardian asserted that the following propositions may be distilled from BKE:

8. [52]

   Counsel for CGB referred to the decision of Harrison J in Office of the Children’s Guardian v CFW [2016] NSWSC 1406 (“CFW”) (under s 27 of the Act, the same position as the one in this current appeal) to support the contention that the assessment of risk that emerged from the decision in M v M involved a “two stage process”. In CFW, Harrison J stated at [14]-[17]:

9. [53]

   In Children’s Guardian v CKF [2017] NSWSC 893, Davies J disagreed with what Harrison J said in CFW at [16]. Davies J at [56] stated:

10. [54]

    I agree and prefer the comments of Davies J in relation to [16] of the decision in CFW.

11. [55]

    In written submissions, counsel for CGB described the Tribunal’s task as follows:

    1. (1)

       The Tribunal begins by determining whether the existence of particular facts has been proven or disproven. The Tribunal may not be satisfied that the existence of particular facts (ie, acts of abuse) has been proven. At the same time, the Tribunal may not be satisfied that their existence has been disproven. Either way, both types of findings concern the existence or possible existence of facts. (Plaintiff’s Submissions, [63]).

    2. (2)

       The Tribunal then conducts a risk assessment taking into account the findings of fact it has made. The assessment of risk goes to the future likelihood of a person committing future acts (or by omission) that would put the safety of a child at risk. That assessment may also take into account other matters; such as the length of time that has passed since the alleged acts were committed, and whether a person has engaged in relevant therapy (such that the risk of a repetition of abuse has lowered). (Plaintiff’s Submissions. [64]).

    3. (3)

       In some instances the Tribunal may be satisfied that an “existence of a risk” has not been disproven. That is distinct to a finding that the existence of a particular fact has not been disproven. In some cases the former finding may follow from a finding of the latter, but they nonetheless concern different stages in the assessment process. (Plaintiff’s Submissions, [65]).

    4. (4)

       Counsel for CGB described the manner in which the Tribunal had made impermissible use of the non hearsay evidence as follows:

12. [56]

    Notwithstanding the clear statement at [32] of its decision reproduced earlier in this judgment where the Tribunal said that it would not be relying on the contentious evidence “as to the truth of their content”, counsel for CGB contended that that is precisely how it approached the matter.

Conclusion

1. [57]

   Hearsay evidence is defined in s 59 of the Evidence Act 1995 (NSW). It relevantly reads:

2. [58]

   After the Tribunal listed the material tendered by the Children’s Guardian at the commencement of the hearing, the solicitor for the CGB again raised the issue as to the admissibility of the statements and records of interview of child A, child B and the older brother of child B. The Children’s Guardian had failed to make these persons available for cross examination. The Tribunal accepted the material into evidence, on the basis they evidenced the allegations that were made and not as to the truth of their content [32]: see CAT Act, s 38(2); Children’s Guardian v BRL [2016] NSWSC 1206 (“BRL”) and BKE.

3. [59]

   In its reasons, the Tribunal at [64] referred to BRL. In BRL, the complainant had been called in the Crown case. However, she refused to continue giving evidence with the consequence that there was no case for that applicant to answer. Before the Tribunal in BRL, statements from the complainant and her siblings were admitted but only to prove that the allegations were made. No enquiry had been made in that case as to the availability of the makers of those statements, nor was a transcript of the complainant’s evidence available at the hearing. The Children’s Guardian asserted that the Tribunal had made an error of law by excluding the above statements as documentary hearsay evidence.

4. [60]

   In BRL, Fagan J in considering an application under s 27 of the WWC Act (the same section as in this appeal) made the following observations about admitting statements. His Honour stated at [29]-[31]:

5. [61]

   The factual situation in BRL is similar to that in this present appeal. The Tribunal here made a similar finding. That is the Tribunal made no finding that the events as alleged by child A, child B and child OB did in fact occur. It was nevertheless satisfied on the material before it that the fact that allegations of the kind asserted by child A, child B and child OB had been made, was a relevant factor to be taken into account for the purpose of assessing whether CGB poses a real and appreciable risk to the safety of children. The Tribunal were not satisfied with the explanations of CGB and AB, that the allegations were a fabrication. ([64] and [84]).

6. [62]

   CGB placed considerable emphasis upon the Tribunal’s conclusions at [64] and [84] of its reasons and in particular drew this Court’s attention to the last sentence of [64] namely “we are not be satisfied that the events as alleged by child A, child B and child OB are a fabrication (and) should be discarded”. According to CGB, the Tribunal by making that finding was essentially asking itself whether the existence of the facts asserted had been disproven and this involved the use of prior representations for a hearsay purpose.

7. [63]

   However, this sentence cannot be read in isolation. This Court “should not read the reasons of the decision maker with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291).

8. [64]

   CGB relied upon his and AB’s evidence that the sexual assaults were fabrications. In these circumstances, the Tribunal was obliged to consider whether they were satisfied that the allegations of sexual assault were a fabrication. Despite the fact that no positive finding could be made, the Tribunal found it could not determine that it was satisfied that the events as alleged by child A, child B and child OB were a fabrication and therefore should be discarded.

9. [65]

   The Tribunal stated that in its opinion, in the absence of child A, child B and child OB being available for cross examination on their respective accounts of the alleged events, it could make no finding that it was more probable than not that the alleged events did occur. The Tribunal at [84] of its reasons made it clear that it considered the allegations of sexual abuse as “a relevant factor” to be taken into account for the purpose of assessing whether CGB posed a real and appreciable risk to the safety of children. It was not satisfied with the explanations of CGB and AB that the allegations were a fabrication. That conclusion was repeated at [117].

10. [66]

    When fairly analysed, none of the reasons identified by the Tribunal were made based upon the impermissible use of evidence of prior representations. In other words, the Tribunal did not rely upon the documents for any hearsay purpose. In any event, having considered the other mandatory statutory factors in s 30(1) of the WWC Act, the Tribunal was obliged to consider other aspects of CGB’s past conduct relying on his and AB’s evidence, including the assaults upon AB and his history of excessive alcohol consumption. It was in that context and against the background of the objectives of the Act that the Tribunal reached the conclusions at paragraphs [116]-[124] reproduced earlier in this judgment.

11. [67]

    A fair reading of the entirety of the Tribunal’s reasons and in particularly its findings at [64] and [84], suggests its decision is consistent with the principles identified in BRL. The Tribunal at [81]-[83] set out how it dealt with the approach to its analysis of the evidence.

12. [68]

    This ground of appeal discloses no error of law.

Ground 3 – Did the Tribunal provide sufficient reasons?

1. [69]

   CGB acknowledged in oral submissions that there was considerable overlap between appeal grounds 2 and 3 (T4.2). CGB raised two issues under ground 3.

2. [70]

   Ground 3 asserts that the Tribunal failed to give sufficient reasons as to the weight to be attributed to the evidence of prior representations concerning the allegations of abuse, and/or its determination that CGB poses a risk to the safety of children taking into account the information and submissions put forward by CGB. CGB asserted that the Tribunal should have given the allegations of sexual assault negligible weight.

3. [71]

   Section 62(3) of the CAT Act sets out that the Tribunal has an obligation to provide a written statement of reasons for its decision. The Tribunal’s written statement of reasons must set out (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made. (s 62(3)).

4. [72]

   The Children’s Guardian referred to BVT v Office of Children’s Guardian [2017] NSWSC 1763 (“BVT”), where Beech-Jones J made the following observations in relation to the limits of the statutory obligation to provide reasons at [99]-[101]:

5. [73]

   In Thang Van Pham v NRMA Insurance Limited (2014) 66 MVR 152, which involved a claim’s assessor’s determination on economic loss, Leeming JA stated at [29]:

6. [74]

   It is not necessary for the Tribunal to make findings with respect to each piece of that evidence. The failure of the Tribunal to refer to each piece of evidence, does not, in and of itself, constitute a legal error: Applicant A169/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [28]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]; and Collins v Urban [2014] NSWCATAP 17.

7. [75]

   The main thrust of the first issue raised by CGB in respect of sub ground 3(a) is that “negligible weight” should have been attributed to the allegations of abuse on the basis that they had not been tested in cross examination and in the absence of an explanation as to why those witnesses were not available to be called before the Tribunal. It was also contended that the Tribunal erred in not giving sufficient reasons as to the weight it gave to that evidence: see BRL at [31], [45] & [49].

8. [76]

   The Children’s Guardian submitted that because the evidence was only admitted to establish the fact that the allegations were made and not as evidence of the truth or content of the allegations, the question of weight did not properly arise and therefore there was no error disclosed by the Tribunal. For the reasons given, the Tribunal was unable to set aside the allegations as ‘fabrications’. That being the case, the Tribunal proceeded to consider matters pertinent to the quality of the evidence (BRL, [30]), including CGB’s evidence, AB’s evidence, the responses of CGB and AB at both the time the allegations were made and at the time of the Tribunal hearing, and the consistency as between the respective makers of statements (in particular child OB and child B)).

9. [77]

   CGB referred to BRL, where Fagan J stated at [31]:

10. [78]

    To understand his Honour’s explanation in paragraph [31], it is necessary to read the preceding paragraph [30]. His Honour was not saying in [31] that the Court should give negligible weight to representations which are adduced as evidence that allegations were made. To the contrary, his Honour said that such statements would be of some relevance in determining the more limited question of whether there was a real risk that the offences had occurred. This is a distinct question from proving the truth of the allegations that the offences actually took place. When statements are received on the more limited basis of proving representations were made, these can be looked at for internal consistency, consistency between the respective makers of statements, inherent probability or otherwise. Examination of the evidence of the allegations on this basis would, together with other evidence, be a foundation for the Tribunal to decide whether there was a risk that the allegations were true.

11. [79]

    As previously stated, the Tribunal in circumstances where it was dealing with allegations of sexual abuse, stated that they had not been tested in cross examination and there was an absence of explanation as to why those witnesses were not called to give evidence, and made a ruling as to the admissibility of that evidence in accordance with the decision in BRL. There was no obligation on the “Tribunal to reach the conclusion that the evidence was of “negligible weight”. Accordingly, there is no error of law.

12. [80]

    Sub ground (3)(b) of the appeal is that the Tribunal failed to give sufficient reasons as to its determination that CGB poses a risk to the safety of children, taking into account the information and submissions put forward by CGB. CGB again reiterated parts of the evidence of AB in support of what was alleged to be the implausibility of the accounts given by child A, child B and child OB. Specifically, counsel for CGB submitted that beyond [72] and [81] of the Tribunal’s reasons, the Tribunal did not go on to deal with the evidence of AB in relation to the layout of the house and plausibility of the events occurring. CGB maintained that if this evidence was not to be given any weight, then he was entitled to an explanation of reasons as to why that part of his case was not successful.

13. [81]

    CGB also relied upon the evidence of Dr Lennings and contended that insufficient weight had been given to his evidence as to the risk that CGB posed to the safety of children. For example, according to CGB, the conclusions reached by the Tribunal as to Dr Lennings’ evidence do not adequately explain what it made of that evidence other than its remarks at [124]. This was described by CGB as not doing justice to the totality of his evidence concerning the risk he posed to the safety of children.

14. [82]

    CGB also maintained that the Tribunal’s observations at [122] of the reasons did not adequately explain what they meant by “… we are concerned about the applicant’s ongoing response to the allegations” and its reasons for concluding that they had concerns about his insight into child protection issues that may arise in a child related working environment.

15. [83]

    Counsel for the Children’s Guardian submitted that the Tribunal was not required to address the question of what weight ought to be attributed to the contents of the allegations of abuse because the statements and records of interview were not admitted to prove the truth of the allegations. Accordingly, the Tribunal was not required to provide reasons on this topic.

16. [84]

    For the reasons given by the Tribunal, it was unable to set aside the allegations as “fabrications”. That being the case, the Tribunal proceeded to consider matters pertinent to the quality of the evidence (BRL, [30]). The Tribunal was not required to identify the particular weight it would attribute to the allegations as a separate finding. As explained earlier, the Tribunal is not obliged to refer to each piece of evidence and the weight to be given to it, particularly where it involves an evaluative judgment.

17. [85]

    Overall, the Tribunal explained in its reasons the path of reasoning by which it arrived at the opinion formed. CGB’s complaints concerning ground 3 do not involve any error of law.

Ground 2 – Did the Tribunal erred in its application of s 30(1)(j) of the WWC Act

1. [86]

   Ground 2 of the amended summons is in the alternative to Ground 1.

2. [87]

   Section 30(1)(j) of the WWC Act requires the Tribunal to consider “any information given by the applicant in, or in relation to, the application”.

3. [88]

   Counsel for CGB submitted that the statute requires the Tribunal to consider information which is provided by an applicant. Reference was made to BKE, where Beech-Jones J stated at [94]:

4. [89]

   CGB relied upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] (“Dranichnikov”) in support of its contention that a Tribunal may breach its procedural fairness obligations if it fails to “respond to a substantial, clearly articulated argument relying on established facts”.

5. [90]

   Additionally, counsel for CGB referred to Norvill v Barton; Tickner v Chapman and Tickner v Barton (1995) 57 FCR 451; (1995) 133 ALR 226 at 270 (“Barton”), where Burchett J (with Black CJ and Kiefel J agreeing) stated:

6. [91]

   In written submissions, CGB referred to a number of matters relating to the allegations concerning child A and child B that went to the likelihood of the possible existence of the alleged abuse. CGB submitted that the Tribunal were asked to take these matters into account, but the Tribunal did not consider this material information.

7. [92]

   At the hearing before this Court, counsel for CGB advanced two specific concerns in relation to appeal ground 2. First, he asserted that although the Tribunal referred to Dr Lennings’ evidence at [99]-[112] and [124] of its reasons, those reasons did not adequately or meaningfully consider the evidence of Dr Lennings.

8. [93]

   Dr Lennings gave the following evidence in cross examination before the Tribunal (T119.11-20):

9. [94]

   Second, counsel for CGB asserted that the Tribunal failed to consider the evidence of AB who said she did not see child A being dragged from the lounge room to the backroom. Additionally, CGB submitted that AB’s evidence relating to the layout of the house and the implausibility of the alleged sexual assaults on child A occurring on a weekly basis and going undetected for 11 months, was not adequately considered by the Tribunal and, beyond the remarks at [72] of its reasons, it is not apparent what the Tribunal made of that evidence.

10. [95]

    The Children’s Guardian submitted that CGB’s complaints constituted an impermissible attempt to invoke the intervention of this Court to find that the Tribunal erred not making findings with respect to each piece of evidence given by CGB, AB and Dr Lennings. Counsel for the Children’s Guardian says that the Tribunal examined the consistency of statements made by child B and child OB and the evidence of CGB and AB in considerable detail. However, the Tribunal did not expressly consider the plausibility of the particular abuse alleged by child A. Nor did it expressly consider the evidence of AB to the extent that her evidence related to the plausibility of the abuse alleged by child A. Given that the Tribunal had admitted the statements and records of interview for a limited purpose, it was not appropriate to consider the contents of the alleged abuse.

11. [96]

    Counsel for the Children’s Guardian also submitted that the Tribunal had considered in detail the contents of Dr Lennings’ report including how genuine child A and child B’s allegations were and the risk posed by CGB to his grandson.

12. [97]

    In written submissions, CGB referred to various aspects of the evidence of AB that went to the issue of whether the alleged abuse had taken place. CGB submitted that “(a)lthough the Tribunal referred to some but not all of the above matters, it did not meaningfully engage or consider this information” other than reach the conclusions referred to at [81]-[83] of the its reasons. Reference was also made to the expert opinion of Dr Lennings and his oral evidence before the Tribunal. CGB submitted that “the Tribunal did not meaningfully engage with or consider” those opinions.

13. [98]

    It is worth noting that in addition to the paragraphs reproduced earlier in this judgment, the Tribunal made the following findings:

14. [99]

    The Tribunal concluded that the decision of the Children’s Guardian was the correct and preferable decision and should be affirmed.

15. [100]

    It can be seen from the extracts set out above that the Tribunal dealt in a comprehensive fashion with the evidence before it, and in detail the evidence adduced by and on behalf of CGB which bore upon the contentious issues that were before it.

16. [101]

    It is my view that the Tribunal took into account each of the considerations set out in s 30(1) of the WWC Act, particularly s 30(1)(j), and found that the material before the Tribunal, including CGB’s evidence and that of AB and Dr Lennings, established on the balance of probabilities that CGB poses a real and appreciable risk of harm to children (at [6] and [123]).

17. [102]

    There was no failure by the Tribunal to take into account relevant considerations. Nor was there a constructive failure to exercise jurisdiction. The Tribunal adequately complied with its statutory obligation set out in s 30(1)(j) of the WWC Act. In these circumstances, CGB was afforded procedural fairness. There is no error of law.

18. [103]

    The result is that the appeal is dismissed. The summons dated 1 December 2017 is dismissed.

19. [104]

    Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.

    1. (1)

       The appeal is dismissed.