CCW v Children’s Guardian

1. [1]

   The Plaintiff, who was born in 1957, applied for a Working with Children Check Clearance (“the Clearance”) from the Defendant, the Children’s Guardian. That application was refused by the Children’s Guardian on 13 July 2015.

2. [2]

   He appealed to the New South Wales Civil and Administrative Tribunal. On 25 November 2016 the Tribunal confirmed the decision of the Children’s Guardian to refuse to grant the Clearance to the Plaintiff. The Plaintiff now appeals to this Court against the Tribunal’s decision.

Background

1. [3]

   In September 1994 the Plaintiff was tried for the offences of aggravated sexual intercourse (contrary to s 61J of the Crimes Act 1900 (NSW)), two counts of aggravated indecent assault (contrary to s 61M of the Crimes Act) and an act of indecency with a person under the age of 16 years (contrary to s 61O of the Crimes Act). The Tribunal referred to those matters in its Reasons as the “trigger matters” and for ease of reference I shall maintain that description.

2. [4]

   The jury was unable to reach a verdict and the charges were relisted for trial in October 1996. However, prior to that trial the Director for Public Prosecutions withdrew the matters on discretionary grounds. That appears to have occurred because the complainant informed the DPP that he no longer wished to proceed on the basis that any further participation would be emotionally damaging.

3. [5]

   The complainant was the stepson of the Plaintiff. At the time the allegations were made he was aged 11 years but he said that the abuse began when he was seven or eight years old.

4. [6]

   The Tribunal summarised the facts of the trigger matters from the police facts sheet as follows:

5. [7]

   In 2004 the Plaintiff swore an affidavit which annexed a statutory declaration made by the complainant. That statutory declaration was also annexed to an affidavit by a child protection case worker with Family and Community Services sworn in family law proceedings in 2010. The Tribunal noted that the statutory declaration appeared to be incomplete but the part of it that was annexed to the affidavits said this:

6. [8]

   There were suggestions in the evidence, particularly from the Plaintiff and his wife (the mother of the complainant) that the allegations may have first been made because of difficulties between the complainant on the one hand and the Plaintiff and his wife on the other in an effort by the complainant to go to live with his natural father. There is other evidence noted by the Tribunal that in November 2011 the counsellor of the complainant said that the complainant had disclosed in counselling sessions that he had been sexually abused and was having ongoing counselling to address sexual abuse by the Plaintiff.

7. [9]

   The Children’s Guardian also took into account an allegation made in 2000, and later retracted, by the Plaintiff’s daughter (described in the Tribunal’s judgment as daughter X) alleging that the Plaintiff had sexually assaulted her for a number of years (the 2000 allegations). It is fair to say that daughter X is and has been a fairly troubled person who not long after she made the allegations told a FACS officer on 20 December 2000 that she had made up the allegations at the suggestion of her boyfriend for the purpose of being able to do what she wished as a teenager and not to abide by her parents’ wishes.

8. [10]

   The evidence available to the Tribunal demonstrated that subsequently daughter X had again made the allegations and again subsequently withdrew them. At least part of the explanation for her inconsistencies was the situation involving the care and control of daughter X’s own children who at various times have lived with and been cared for by the Plaintiff and his wife.

9. [11]

   On 21 June 2011 a consent order was approved in the Family Court giving the Plaintiff and his wife sole responsibility for the three eldest children of daughter X born respectively in 2004, 2009 and 2010. The Plaintiff said that Family and Community Services was a party to those proceedings and did not oppose the making of that order. The Tribunal nowhere found that FACS did not oppose that order nor consented to it, but I am prepared to assume that the Plaintiff’s assertion in that regard is correct.

10. [12]

    Other matters which should be noted are these. First, the Plaintiff has a significant criminal record between 1969 and 1999 involving property offences, driving offences including PCA offences, fraud, drug offences and offences of person violence. It should be said that the offending generally involves offences at the lower end of the criminal calendar and he has had no convictions since 1999.

11. [13]

    Secondly, in 2009 the Plaintiff and his brother-in-law were reported to have made threats to shoot each other. Thirdly, in 2010 the Plaintiff expressed the intention of packing a baton into the school bag of his son as a response to alleged bullying. Fourthly, in 2010 the Plaintiff was alleged to have made a threat that included the death of a school principal. Although the Plaintiff denied that the words were directed to the principal the FACS officer was sufficiently concerned to advise the principal to go home and police took out a provisional apprehended violence order, although that order was not ultimately pursued.

12. [14]

    Fifthly, a police incident report in 2012 said that the Plaintiff attended the house of his daughter X uninvited and armed himself with a shifter and chrome jack as protection in an altercation that then ensued with daughter X’s partner. Finally, the Plaintiff was for some years (probably in the late 1980s into the 1990s) a member of an outlaw motorcycle gang.

13. [15]

    Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW)(the WCA) lists as an assessment requirement trigger the position where proceedings have been commenced against a person for any sexual offence committed against, with or in the presence of a child whatever the outcome of those proceedings. Whilst the commencement of proceedings in respect of the trigger matters does not disqualify the Plaintiff from holding a clearance it does result in the requirement for the Children’s Guardian to conduct a risk assessment in respect of the application. Section 18(2) of the WCA provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

Decision of the Children’s Guardian

1. [16]

   In a letter dated 13 July 2015 addressed to the Plaintiff, the Children’s Guardian advises that it had decided to refuse to grant the Clearance by reference to the matters set out in subsection 15(4) of the Child Protection (Working with Children) Act and in particular:

2. [17]

   The Children’s Guardian concluded that the Plaintiff posed a risk to children because of “the seriousness of the alleged sexual abuse, the fact that two separate complainants made clear disclosures, and the age difference and power imbalance” between the complainants and the Plaintiff.

The decision of the Tribunal

1. [18]

   The decision of the Tribunal is a lengthy one extending to 191 paragraphs. It is not necessary to set out all of the judgment but, to understand the submissions made, I shall set out the important passages.

2. [19]

   The Tribunal dealt first with the statutory power and the legal principles involved in making decisions under the WCA (paragraphs [1] to [36]). It summarised the matters taken into account by the Children’s Guardian (paragraphs [38]–[39]). It summarised the background to the appeal including the trigger matters and the 2000 allegations, making detailed reference to many documents produced in evidence whilst assessing the matters to be taken into account under s 30 of the WCA (paragraphs [40]-[106]). The Plaintiff relied on a report from a psychologist, Dr Katie Seidler dated 8 March 2016. The Tribunal discussed that report and Dr Seidler’s oral evidence (paragraphs [107]-[114]). It discussed the information provided by the Plaintiff (paragraphs [115]-[120]) and the submissions made to the extent they are not identified at other places in the judgment (paragraphs [121]-[128]).

3. [20]

   In a section headed “Conclusions regarding the matters considered” the Tribunal said this:

4. [21]

   The Tribunal then made reference to what Beech-Jones J said in BKE v Office of the Children’s Guardian [2015] NSWSC 523 where the Tribunal may not be satisfied that allegations of abuse are made out but nevertheless conclude that there remains a risk to children. Thereafter, the Tribunal considered again Dr Seidler’s assessment concluding as follows:

5. [22]

   The Tribunal then commented on the Plaintiff’s care for his grandchildren as follows:

6. [23]

   The Tribunal seemingly accepted (at [169]) that the Plaintiff and his wife were honest witnesses and commented on two references provided for him. The Tribunal’s overall conclusions were these:

Grounds of appeal

1. [24]

   The grounds of appeal set out in the summons filed 22 December 2016 are as follows:

2. [25]

   The appeal to this Court is on a question of law only: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 3, clauses 15(b) and 17(a).

Legislative provisions

1. [26]

   Relevant portions of the WWC Act are as follows:

Application to lead further evidence

1. [27]

   At the outset of the hearing the Plaintiff by Notice of Motion filed 12 July 2017 sought leave to adduce further evidence in the form of a clinician’s report prepared for the NSW Children’s Court by Thomas Schick, clinical and counselling psychologist. It was prepared in circumstances where the Children’s Court was considering the three youngest children of the Plaintiff’s daughter, daughter X, and where they should be placed. The three older children were living with the Plaintiff and his wife pursuant to orders in the Family Court that the Plaintiff and his wife have parental responsibility for them.

2. [28]

   Counsel for the Plaintiff sought to have this Court review the report of Mr Schick when considering the judgment of the Tribunal. The Plaintiff sought to justify the admission of the further evidence on the basis of r 50.16 Uniform Civil Procedure Rules 2005 (NSW) which relevantly provides:

3. [29]

   Rule 50.16 does not apply to all appeals to the Court. If an appeal is in the nature of a strict appeal the sole duty of the Court is to determine whether error has been shown on the part of the Court below. In such circumstances the appeal court is not engaged in a re-hearing and the Court’s task is not to decide where the truth lies as between the competing versions of the parties: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [32]; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [17]-[19], [68], [111]-[112] and [290]. The position is a fortiori where the appeal is on a question of law alone. The appeal to this Court from the Tribunal is an appeal on a question of law only. A consideration of fresh evidence would involve this Court making a merits review of the Tribunal’s decision and dealing with questions of fact.

4. [30]

   Leave to adduce fresh evidence should be refused.

Submissions

1. [31]

   The Applicant grouped various grounds of appeal together and I shall adopt a similar course.

2. [32]

   In relation to grounds 1 and 3, the Plaintiff placed considerable emphasis on what was said to be the inconsistency between the Tribunal’s findings at [149] where it was not satisfied that the trigger matters and the 2000 matters did take place and at [151] where it was not satisfied that they did not take place. The Plaintiff submitted also that the conclusion reached by the Tribunal at [164] is flawed because it failed to provide any reasons how it reached that conclusion. To the extent that it reached that conclusion based on the matters in paragraphs [127]-[143], those matters are inconsistent with the finding at [164] and the finding is inconsistent with the determination in [133]. The Plaintiff submitted that for the Tribunal to have taken into consideration the matters raised at [175] it must follow that the Tribunal accepted the matters contained within [151] and [153] as having occurred on the balance of probabilities. The Plaintiff submitted that the consideration at [177(1)] presupposed that the Plaintiff was causative of the matters contained therein especially in circumstances of the conflict between the findings at [149] and [151].

3. [33]

   In relation to grounds 2 and 6, the Plaintiff in his written submissions said that the Tribunal failed to place sufficient weight on the orders made by the Family Court on 21 June 2011. The Plaintiff submitted that because the Family Court of Australia had to have regard to the best interests of the children it must have taken into account the exposure of the children, inter alia, to family violence. The Plaintiff submitted that it was not open to the Tribunal to decide that the making of the consent orders in the Family Court was not determinative of the issue that the Plaintiff should not be considered to pose a risk to children. Further, the Tribunal placed little, if any, weight on the fact that the Department of Family and Community Services consented to the orders where the Minister knew or was aware of the trigger matters and the 2000 matters.

4. [34]

   In relation to grounds 4, 5, 7 and 8 the Plaintiff submitted that in finding that the Plaintiff posed a risk to children that is greater than that of other persons the Tribunal made an error and misapplied s 18(2) of the Act. Somewhat inconsistently with his submissions in relation to grounds 1 and 3, the Plaintiff submitted that even if no such positive finding could be made that the trigger matters and the 2000 allegations occurred, the Tribunal was still obliged to consider questions of risks that might be indicated by all of the facts. The Plaintiff then submitted that the Tribunal placed too much weight on the statement of Dr Seidler that if the allegations against him were true then children being in his care was a risk factor. Further submissions made by the Plaintiff in relation to these grounds concerned how much weight the Tribunal gave to various matters.

5. [35]

   The Plaintiff submitted that the Tribunal did not provide adequate reasons and that there was nothing in its reasons to indicate that it approached the task in the manner identified in M v M (1988) 166 CLR 69; [1988] HCA 68 and in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523.

6. [36]

   The Plaintiff submitted that the Tribunal applied a test of “reasonable suspicion” and arbitrarily created a bar that was too high and unreasonable for the Plaintiff to meet. The Plaintiff submitted that there were no reasons nor any conclusions to demonstrate that the Tribunal had embarked on a process to determine whether it weighed all or any reasonable suspicions in the process of determining what might happen in the future. Finally, the Plaintiff submitted that although the Tribunal said at [178] that the matter was a finely balanced one and that it weighed up the various factors, the Tribunal did not say how it weighed up those factors.

7. [37]

   The Defendant submitted in relation to ground 1 that it would have to be found that the decision was so unreasonable that no reasonable Tribunal could have made it. The Defendant submitted that there were no inconsistent findings. Rather, the tribunal had correctly applied M v M and BKE.

8. [38]

   The Defendant submitted that most of the grounds dealt with errors of fact and not law. The question of weight was one of fact. The Defendant submitted that the tribunal provided adequate reasons, and that the Plaintiff’s approach was to examine particular paragraphs in isolation from the whole judgment.

Determination

1. [39]

   The Plaintiff’s complaint about inconsistent findings made in both his written and oral submissions appears to misunderstand the task required of the Tribunal. In BKE, Beech-Jones J said:

2. [40]

   In Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Harrison J said:

3. [41]

   For the reasons I gave in Children’s Guardian v CKF [2017] NSWSC 893 at [52] – [56] I respectfully disagree with Harrison J’s assertion at [16] of CFW that “a lingering doubt or suspicion” should count against the defendant as a starting point. For present purposes that approach can only favour the Plaintiff. It does not otherwise detract from the approach Harrison J explains must take place in assessing risk.

4. [42]

   There was no inconsistency in the findings of the Tribunal in the present case at [149] and [151]. They were unable to be satisfied positively that the trigger matters and the 2000 allegations occurred or did not occur. They were left with a doubt or suspicion. The obligation was then on the Tribunal to assess all the evidence to decide if there was a real and appreciable risk as was explained in Commission for Children and Young People v V [2002] NSWSC 949, that is, a risk that is greater than the risk of any adult preying on a child.

5. [43]

   Nor was there any inconsistency, as the Plaintiff alleges, between what appears from paragraphs [127] to [143] and the conclusion expressed at paragraph [164]. It should first be noted that paragraphs [127] and [128] record the submissions of the Children’s Guardian. Similarly, paragraph [133] is not a determination as the Plaintiff asserts but a record of a submission made by the Plaintiff with, perhaps, a limited agreement by the Tribunal. However, the Tribunal thereafter discussed matters which suggested the contrary of what the Plaintiff submitted at paragraph [133].

6. [44]

   There is no basis for concluding, as the Plaintiff submitted, that by raising the matters at paragraph [175] the Tribunal must have found on the balance of probabilities that the matters it identified at paragraphs [151] and [153] occurred. There is much force in the Defendant’s submission that the Plaintiff has focused on individual paragraphs in the judgment for criticism without having regard to the whole of the judgment.

7. [45]

   To the extent that it is alleged that the finding of the Tribunal was unreasonable or cannot be supported by the evidence, it is apparent from the careful judgment of the Tribunal that there were a number of matters capable of supporting the ultimate conclusion to which the Tribunal came. It is sufficient to refer [175]-[177] of the Tribunal’s reasons to demonstrate that there was evidence capable of supporting the Tribunal’s conclusion. In that way it cannot be said that the decision made was so unreasonable that no reasonable tribunal could have made it.

8. [46]

   As far as ground 3 is concerned, I asked counsel for the Plaintiff in what way he submitted the Tribunal misdirected themselves and he said that the heart of the ground was not necessarily that the Tribunal misdirected themselves but, rather, that it provided inconsistent reasoning in its findings in [149] and [151]. Further, it is apparent from the wording of ground 3 alone that the real challenge to the Tribunal’s conclusion relates to the weight that was to be given to particular aspects of the evidence. What weight a tribunal gives to evidence is not a question of law but a question of fact. This difficulty was at the heart of most of the grounds of appeal in the matter.

9. [47]

   In R L & D Investments P/L v Bisby & Anor [2002] NSWSC 1082; (2002) 37 MVR 479 Kirby J said:

10. [48]

    In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Kirby P, having considered a number of English and Australian authorities, said (at 151):

11. [49]

    Justice Glass (with whom Samuels JA agreed) said (at 155-156):

12. [50]

    In C v W [2015] NSWSC 1774 at [49] Lindsay J endorsed the following non-exhaustive list of what amounts to a question of law taken from the Appeal Panel’s decision in John Prendergast and Vanessa Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]:

13. [51]

    There was evidence to support the Tribunal’s finding. The weight to be given to any aspect of the evidence was a matter for the Tribunal. No error of law is demonstrated.

14. [52]

    I would reject grounds 1 and 3.

15. [53]

    Although ground 2 expressly says that the Tribunal erred in failing to be satisfied that the Family Court order was determinative of whether the Plaintiff posed a risk to children, counsel for the Plaintiff drew back from that position during oral argument by saying that placing too much weight on the orders of the Family Court would be inconsistent with what is required under s 30 of the Act. That concession was properly made. For the Tribunal to regard an order of the Family as determinative would be to misunderstand its own jurisdiction. The Tribunal’s obligation is to consider the matters in s 30 of WCA. Although the touchstone for the Family Court is the paramount interest of the child, the Family Court is not obliged to have regard to all of the s 30 matters. Moreover, the Family Court may, as in the present case concerning the children of daughter X, have limited options amongst which it can choose.

16. [54]

    What the judgment of the Tribunal in the present case makes clear is that it had regard to the orders of the Family Court but said that it had no access to the assessment report provided to the Family Court. That assessment report was not put in evidence before the Tribunal, seemingly, by reason of a mistaken view that s 121 of the Family Law Act 1975 (Cth) prevented that course when s 121(9) provided a relevant exception. However, although such a report may have clarified why the Family Court made the decision it did, the Family Court order was one matter of many to be taken into account. The Tribunal took it into account in the Plaintiff’s favour.

17. [55]

    What is clear, however, from the remainder of the matters referred to in grounds 2 and 6, that the real challenge is to the weight or emphasis placed on matters associated with the making of the Family Court order. For reasons earlier given, no error of law in that way is demonstrated.

18. [56]

    The main criticism that the Plaintiff directs at the Tribunal in relation to these grounds is that it said at [152] and [154] that there was sufficient weight on which to base a reasonable suspicion that the trigger events and the 2000 allegations occurred. This was said to have arbitrarily created a bar that was too high and unreasonable for the applicant to meet.

19. [57]

    The Tribunal set out at [35] what Harrison J said in CFW at [23]-[24] and [48] and returned to what Harrison J said in the specific context of discussing the evidence of those events at [152]-[155]. It is clear that all that is being said in those paragraphs is, because the material taken as a whole left a reasonable suspicion that the events occurred, the Tribunal was not able to reach a positive conclusion that they did not occur. In that way, no bar was set which the Plaintiff had to meet. The Tribunal correctly applied what Harrison J said in CFW when coming to that view that it could not be so satisfied.

20. [58]

    The Plaintiff does not establish that the Tribunal misapplied the reasoning of the High Court in M v M by making reference to “reasonable suspicion” in that context. No other way was suggested that the Tribunal had misapplied that decision.

21. [59]

    Grounds 4, 7 and 8 deal with the weight that was placed on various aspects of the evidence. They do not in any sense identify an error of law in what the Tribunal did.

22. [60]

    A reading of the Tribunal’s judgment demonstrates very clearly that the matter was a finely balanced one as the Tribunal asserted in [178]. The Tribunal reviewed all of the evidence in a fair and balanced way and summarised matters that favoured the Plaintiff’s position (such as at [166], [167] and [173]). Ultimately, because of the other factors which told against the Plaintiff the Tribunal could not be satisfied that the factors in favour of the Plaintiff’s position was sufficient to outweigh a conclusion that the Plaintiff posed a risk to children that is greater than any adult.

23. [61]

    The criticism that the Tribunal did not say how it weighed up matters that led to its conclusion at [180] must be rejected. Ultimately, an evaluative decision had to be reached. The weighing up of factors for and against a position ultimately reaches the point where for a decision maker the matter ultimately becomes (to borrow an expression form the criminal law) one of instinctive synthesis. To challenge that as a matter of law it is necessary to demonstrate that there was no evidence upon which the decision maker could have reached his or its evaluation. In the present case there was a considerable body of evidence.

24. [62]

    I reject these grounds.

Conclusion

1. [63]

   For the reasons given, I make the following orders:

   1. (1)

      Summons dismissed.

   2. (2)

      The Plaintiff is to pay the Defendant’s costs.