Children’s Guardian v CKF

1. [1]

   The Plaintiff appeals against the whole of the decision of the New South Wales Civil and Administrative Tribunal concerning the Plaintiff’s decision to cancel a Working with Children check clearance. The judgment of the Tribunal was given on 4 January 2017: CKF v Children’s Guardian [2017] NSWCATAD 6.

Background

1. [2]

   The Defendant is a qualified doctor who has worked extensively in Australia in emergency departments.

2. [3]

   The Defendant’s marriage of approximately 24 years ended in about April 2011. At that time the Defendant’s wife made allegations of domestic violence against him.

3. [4]

   The Defendant and his wife at that time had six children from the marriage. The four youngest children of the marriage made allegations of a sexual nature against the Defendant. Those disclosures were made in proximity to the marriage breakdown and close in time to the allegations made by the former wife.

4. [5]

   The following allegations were reported to the New South Wales Department of Family and Community Services in 2011 and 2012:

5. [6]

   Although the investigation by Liverpool JIRT found there was no physical evidence to suggest that sexual abuse had occurred, it substantiated the allegations in regard to the daughters, and named the Defendant as a Person Causing Harm. The allegations in regard to the sons were not substantiated by JIRT.

6. [7]

   No criminal charges were laid. An email from Detective Sergeant Natalie Lloyd of the Child Abuse Squad - Liverpool, dated 20 August 2013 stated:

7. [8]

   By application dated 4 September 2014, the Defendant applied for a Working with Children Check Clearance ("the Clearance") pursuant to s 13 of the Child Protection (Working with Children) Act 2012 (NSW) (the WWC Act).

8. [9]

   On 11 September 2014, the Defendant was granted the Clearance, as he had no records in his criminal history and the above allegations had not been disclosed in his application (noting that there was no obligation to disclose them).

9. [10]

   The Defendant's WWCC application was referred for risk assessment pursuant to s 15(3) of the WWC Act following receipt of a notification from the NSW Ombudsman on 23 March 2015 regarding allegations that the Defendant sexually abused four of his biological children between 2009 and 2011.

10. [11]

    On 6 October 2015, an Interim Bar was placed on the Defendant's WWCC application given the likelihood of risk to the safety of children should he engage in child-related work pending the outcome of his risk assessment. During the risk assessment process, the Defendant provided a statutory declaration and written submissions. This information was deemed not to address sufficiently the risks identified during the risk assessment.

11. [12]

    On 15 December 2015, the Defendant was issued with a s 23 Notice of cancellation of the Clearance. The risks identified pursuant to s 15(4) were:

12. [13]

    The Defendant appealed to NCAT pursuant to s 27 of the WWC Act and the matter was heard in the Administrative and Equal Opportunity Division on 15 August 2016. The decision of the Tribunal given on 4 January 2017 was this:

The appeal

1. [14]

   The Children’s Guardian, by Summons filed 1 February 2017 and amended on 15 June 2017, seeks orders that the orders made by the Tribunal on 4 January 2017 be set aside, that the decision of the Children’s Guardian to cancel the Clerance be affirmed and, in the alternative, that the matter be remitted to the Tribunal constituted by different personnel to be dealt with according to law.

2. [15]

   The grounds of appeal are these:

3. [16]

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

Legislative provisions

1. [17]

   Relevant portions of the WWC Act are as follows:

The decision of the Tribunal

1. [18]

   The judgment set out the scheme of the WWC Act, the nature of the appeal to the Tribunal, the background to the appeal, a summary of the written and oral evidence and the submissions made by counsel at the hearing of the appeal.

2. [19]

   By reason of the submissions made at the hearing before me it is then necessary to set out the remainder of the judgment:

3. [20]

   It is clear from a reading of the whole of the Tribunal’s judgment that the reference in [113] of the Tribunal’s judgment above is a reference only to Dr Seidler.

4. [21]

   In relation to the references in the Tribunal’s judgment at paragraph [96] to paragraphs [68], [74] and [75], paragraph [68] would appear to be irrelevant to what was being discussed. Paragraphs [74] and [75] record submissions by the Defendant but it is appropriate to set those paragraphs out:

Submissions

1. [22]

   The Plaintiff submitted that the error in the first ground of appeal arose by reference to the Tribunal having found “some suspicion remains that some of the alleged behaviour may have occurred” and then making no reference to how that finding impacted on the assessment of risk. The Tribunal simply put those suspicions to one side and went on to express the final opinion as to risk.

2. [23]

   The Plaintiff submitted that what the Tribunal was required to do, on finding the existence of a suspicion that some of the alleged behaviour may have occurred, was to consider questions of risk that may be indicated by all of the facts which inherently included that suspicion. In the absence of the assessment of the risk by reference to the existence of a suspicion, the Tribunal erred in that it failed properly to assess risk as the WWC Act required.

3. [24]

   The Plaintiff submitted that, following the judgment of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406, the Tribunal should have determined that, even if not positively satisfied that the acts occurred on the balance of probabilities, if a lingering doubt or suspicion remained then that should count against the Defendant.

4. [25]

   The Plaintiff submitted that the Tribunal’s open conclusion on the allegations suggested that there remained at least some degree of suspicion or doubt as to whether the Defendant had engaged in criminal or inappropriate conduct. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the Defendant posed a risk to the safety of children.

5. [26]

   The Plaintiff submitted that in failing to carry out that task the Tribunal failed properly to have regard to or assess those matters that it considered to be "open", in so doing it misapplied the statutory test in s 18(2) and thereby failed to discharge its statutory functions and duties under Part 4 of the WWC Act.

6. [27]

   In relation to the second ground of appeal the Plaintiff submitted that the Tribunal failed to give consideration to the likelihood of repetition of the alleged offending and in that way failed to consider, pursuant to s 30(1)(a) "the seriousness of ... any matters that caused a refusal of a clearance". The Plaintiff submitted that each of the matters which the Tribunal should have considered but failed to consider bore directly upon the central question of risk to the safety of children.

7. [28]

   In relation to the third ground of appeal the Plaintiff drew attention to what was said by McHugh JA and Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The Plaintiff submitted that the findings identified at paragraphs [115], [116] and [118] of the judgment of the Tribunal were made in the absence of any further consideration of the relevance of the remaining suspicions to the assessment of risk. In that way, the failure to reference any aspect of that assessment resulted in there being no means to expose the logic for the ultimate findings the Tribunal made. In that way the reasons were inadequate.

8. [29]

   The Defendant submitted that the Tribunal's observation that "some suspicion remains that some of the alleged behaviour may have occurred" read in context, conveyed no more than that the Tribunal on the basis of the documentary and oral evidence before it was unable to satisfy itself on the balance of probabilities that most of the allegations made against the Defendant either did not or did occur. The Defendant submitted that this was not a case where the Tribunal determined that the veracity of the allegations made against the Defendant remained open particularly when it rejected at least one of the allegations made against the Defendant at paragraph [106], emphasised the significant concerns of both the Police and the DPP in respect to the veracity of other allegations made by the children and the credibility of his former wife, and found that the Defendant was "consistent in his answers" meaning that he was a credible witness. The Defendant submitted that the circumstances in CFW differed significantly particularly because of the doubt cast on the Defendant’s credibility in that matter.

9. [30]

   The Defendant drew attention to Dr Seidler’s opinion expressed on the basis that the allegations against the Defendant were made out. That position also contrasted with the position in CFW.

10. [31]

    The Defendant submitted that unlike the Tribunal in CFW and contrary to the Plaintiff’s submissions, the Tribunal in the present case did not put its suspicions to one side and express a final opinion as to the risk. In the present case the Tribunal expressly said it had regard to the observations in CFW and it also considered and accepted the evidence of Dr Seidler. In that way, the Tribunal did not misapply or misconstrue the test applicable under s 23(1) of the WWC Act.

11. [32]

    The Defendant submitted in relation to ground 2 that the Plaintiff would need to succeed on ground 1 to be successful on ground 2. The Defendant submitted that the Tribunal did not fail to have regard to "the seriousness of ... matters that caused ... imposition of an interim bar" (s 30(l)(a) of the WWC Act). The Tribunal referred to these matters at paragraphs [9], [48], [50], [67]-[70] and [73], and considered them as part of its decision-making process at paragraphs [78] – [80], [83], [100], [102] – [109].

12. [33]

    In any event, the Defendant submitted that if the Tribunal did fail to have regard to the seriousness of the matters that led to the Plaintiff imposing an interim bar on the Defendant, the Plaintiff’s real complaint was that the Tribunal did not give adequate weight to the material before it. That raises a question of fact and not law.

13. [34]

    In relation to ground 3 the Defendant submitted that the authorities referred to by the Plaintiff were not apposite to administrative decision-makers because they concerned the obligation of curial decision-makers to give adequate reasons for judgment. The Tribunal's obligation to give reasons is contained in s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW). Under that section the Tribunal’s obligation is to set out the findings on material questions of fact that it considers to be material and its obligation to set out the reasoning processes that led it to the conclusions it made is not an obligation to provide reasons in detail with respect to each and every argument advanced by a party.

14. [35]

    Finally, the Defendant submitted that if there was a breach of the Tribunal’s obligations under s 62(3) of that Act that would not be an adequate basis to set aside the decision. Rather, an order should be made requiring the Tribunal to comply with its obligations under s 62(3). Reference was made to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [33], [41] and [57]; and Repatriation Commission v O’Brien (1985) 155 CLR 422 at 445-446.

15. [36]

    In reply the Plaintiff submitted that ground 1 gave rise to a question of law because, in putting aside the finding of risk, the Tribunal did not apply the correct test. Where the Tribunal did not make a positive finding that an act did not occur it was required to assess the likelihood or possibility of similar events occurring, and in failing to do so it misapplied the test.

16. [37]

    In relation to ground 2 the Plaintiff submitted that even if the Court was not satisfied that the Tribunal made an open finding the Tribunal was required to consider the level of seriousness of the allegations to comply with s 30(1) of the WWC Act.

17. [38]

    In relation to ground 3 the Plaintiff submitted that s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) required the Tribunal to go beyond simply setting out the findings it considered to be material. The Tribunal was required to provide its reasoning process that led to the ultimate conclusion. In that way a review court could see what the Tribunal took into account.

Consideration

1. [39]

   It is convenient to deal with all of the grounds together because of the interrelationship between them. In my opinion, none of the grounds is made out because a careful examination of the reasons of the Tribunal demonstrates that the Tribunal has not applied the wrong test, it has not put aside allegations and its reasons are not inadequate.

2. [40]

   Guidance is obtained from a number of cases where the reasons of administrative decision-makers and inferior tribunals are being considered.

3. [41]

   In Politis v Commissioner of Taxation (1988) 16 ALD 707; (1988) 88 ATC 5029; (1988) 20 ATR 108 Lockhart J said:

4. [42]

   Politis was approved by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [291]. In addition, the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ said at [31] that:

5. [43]

   In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Gleeson CJ said:

6. [44]

   In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Basten JA (Beazley and Macfarlan JJA agreeing) said:

7. [45]

   The Plaintiff makes particular criticism of the fact that the Tribunal determined at [109] that it was not able to make a positive finding that the alleged behaviours did not occur and then went on to say in [111] that, notwithstanding that lack of a positive finding, the Tribunal was not satisfied that the Applicant posed a real and appreciable risk to children. The Plaintiff submits that in reaching that conclusion the Tribunal did not apply the appropriate test in CFW and put aside the allegations made against the Defendant in reaching that conclusion. Further, the Plaintiff submitted that there was no adequate reasoning for the conclusion expressed at paragraph [111].

8. [46]

   In my opinion, that overlooks the fact that the Tribunal had earlier set out in some detail the Defendant’s evidence ([43]-[57]) and its findings in relation to his evidence (at [91] and [97]), which indicated fairly clearly that the Tribunal accepted his evidence. The Tribunal’s discussion of the circumstances of the making of the allegations at [102], as well as the conclusions expressed at [103] (the doubt about the daughter’s allegation) and [106] (the allegation of the removal of the daughter from school), no doubt helped the Tribunal to reach the positive view that it formed of the Defendant’s evidence.

9. [47]

   The Plaintiff’s approach also overlooks the fact that the Tribunal had earlier set out the expert evidence from Dr Seidler (at [58]-[63]), concluding that the Defendant posed an overall low risk, and later (at [88]-[90] and [92]-[93]) discussed the report in the context of any likely repetition of the alleged behaviour. The oral evidence of Dr Seidler made clear that, for the purposes of making her risk assessment, she assumed that the allegations against the Defendant were true. Her risk assessment, therefore, excluded the possibility that the Defendant did not do the acts alleged. That is a significant matter.

10. [48]

    Significantly, the Plaintiff overlooked paragraph [113] where the Tribunal said that it had regard to all of the evidence and the submissions “even if we do not refer to all of that information specifically in these reasons”. It then went on to say that all material had been considered “however the material of the expert witness was given significant weight, having regard to the fact that their (sic) evidence was scrutinised, and that they (sic) have provided expert evidence on the substantive consideration for the Tribunal, that is whether the applicant is a risk to the safety of children”.

11. [49]

    It is also of significance that in the paragraph which intervened between [109] and [111] the Tribunal specifically referred to the judgment of Harrison J in CFW. Earlier the Tribunal had in its reasons set out that portion of Harrison J’s judgment that dealt with the statutory test at [13]-[17] of CFW. At this point the Tribunal referred to Harrison J’s judgment at [48] of CFW where his Honour discussed the need to weigh all reasonable suspicion in the process of determining what might happen in the future. That is a strong indication that the Tribunal did not put aside the allegations in determining whether the applicant posed a risk to children. It is also difficult to see how it can be said that the Tribunal failed to apply the appropriate test where, in the paragraph immediately preceding its conclusion that the Defendant did not pose a real and appreciable risk to children, the Tribunal had referred to the very case which elaborated on the statutory test.

12. [50]

    What the Tribunal said in [113] shows that the Tribunal was alive to the correct test that it had to apply when it said:

13. [51]

    It is apparent from that passage also that the basis for the Tribunal’s conclusion, set out somewhat repetitively in [115], [116] and [118] of its judgment, was the evidence of the Defendant and the evidence of Dr Seidler.

14. [52]

    One final point should be made about whether the Tribunal applied the correct test. In CFW Harrison J said:

15. [53]

    The notion that the “lingering doubt or suspicion” should be counted against the defendant seems first to have been identified by the Tribunal in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 where the Principal Member said at [41]:

16. [54]

    The reference to M v M is to the decision of the High Court at (1988) 166 CLR 69; [1988] HCA 68 and the reference to BKE is to the decision of Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523. The problem is that neither of those cases said or implied that it counted against the defendant if a lingering doubt or suspicion remained. It is necessary to set out not only the paragraph in M v M identified by the Tribunal in BSR but also the subsequent paragraphs to demonstrate that there is no basis for the gloss added by the Tribunal:

17. [55]

    Similarly, in BKE Beech-Jones J set out most of what appears above from M v M and said at [33]:

18. [56]

    With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or “a lingering doubt or suspicion” counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.

19. [57]

    As is clear from paragraphs [78]-[80] of the judgment, the Tribunal did not ignore s 30(1)(a) of the WWC Act. The Tribunal said that the seriousness of the allegations was significant but noted that the applicant denied the allegations. As noted earlier, it is clear that the Tribunal accepted the Defendant’s denials and considered that his evidence, along with the expert evidence, was significant in coming to a view about the major issue for determination. The risks of any repetition were discussed at paragraphs [63], [88]-[90] and [93].

20. [58]

    The Tribunal did not put aside the allegations made against the applicant. Having determined that a positive finding either way could not be made the Tribunal thereafter indicated that when it considered all of the evidence particularly the evidence of the Defendant and Dr Seidler, and giving significant weight to Dr Seidler, it determined that the evidence did not establish that the Defendant posed a real and appreciable risk to the safety of children.

21. [59]

    Section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) provides:

22. [60]

    I do not consider that there can be any serious doubt that the Tribunal has complied with paragraphs (a) and (b) of s 62(3). Although the Plaintiff submitted that the Tribunal failed to apply the appropriate test, the judgment demonstrates from the setting out of the extract from CFW and from its approach to s 30 of the WWC Act that it understood the applicable law. I have earlier explained why I consider that the Tribunal did not misapply that law.

23. [61]

    On the other hand, I can accept that the manner in which the Tribunal expressed its reasons might cause the reader, when reading those reasons quickly, to conclude that the requirements of s 62(3)(c) had not been followed. There is, for example, a fairly rapid progression from the open finding on the allegations at [109] to the conclusion on the central issue at [111].

24. [62]

    Two points should be made. First, it is important to bear in mind what Basten JA said (Ward JA and Bergin CJ in Eq agreeing) in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46]:

25. [63]

    The second matter is, and one not unrelated to the first point, that a careful reading of the reasons demonstrates that the Tribunal has properly had regard to the evidence by identifying the matters which led it to the conclusion it ultimately reached. The key to that understanding is the summary provided at [113] which takes the reader back to the earlier discussion of the evidence of the Defendant and particularly Dr Seidler on whose evidence the Tribunal expressly placed considerable weight. In that way the Tribunal’s reasoning processes are adequately set out. As Basten JA said in Resource Pacific, it is not the place of an appellate court to set standards for the level of detail to be provided in the judgment under review. Nor, I would add, in the light of what Gleeson CJ said in Applicant S20/2002, is it the place of the appellate court to say how the tribunal or court below should order those reasons provided the reasoning process can be discerned.

Conclusion

1. [64]

   The Tribunal mistakenly thought that it was dealing with an appeal from a refusal of the Children’s Guardian to grant a clearance under s 18 of the WWC Act rather than an appeal from a cancellation of a clearance pursuant to s 23 of the Act. It is not suggested that this error vitiated the Tribunal’s decision if error was not demonstrated in the ways claimed in the Notice of Appeal. That was because the test for the ultimate determination of risk was the same. However, the orders made by the Tribunal are inappropriate for the appeal which the Tribunal determined in substance in favour of the Defendant. The Tribunal should have set aside the cancellation of the clearance. It may have made an ancillary order directing the Children’s Guardian to issue or restore the clearance.

2. [65]

   Accordingly, the orders that I make are these:

   1. (1)

      Vary the orders made by the Tribunal on 4 January 2017 so that they provide:

   2. (2)

      The Summons is otherwise dismissed.

   3. (3)

      The Plaintiff is to pay the Defendant’s costs.