Children’s Guardian v CHN

This is an appeal brought by the appellant, the New South Wales Children’s Guardian (the Guardian), against a decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) reversing a decision of the Guardian to deny the respondent, CHN, a “working with children check clearance” (the clearance).

It was agreed between the parties that the Guardian is entitled to bring the appeal as of right, pursuant to clause 17 of schedule 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), so long as it pertained to a “question of law”.

There was something of a preliminary dispute between counsel about the nature of such an appeal, and in particular the rigour of the concept of a “question of law”. But without descending to a detailed analysis of the meaning of that concept, I am of the view that each of the grounds of appeal as finally formulated by counsel for the Guardian raises a “question of law”, as opposed to a question of fact, or some lesser form of a legal issue. Whether any ground of appeal is actually established is, of course, another question entirely.

Because of the differing roles played by the parties at different stages of the proceedings, for the convenience of the reader I shall simply refer to the appellant as “the Guardian”, and the respondent as “the individual”.

The background of the matter may be concisely stated, and expressed in generally chronological form.

A number of serious sexual offences were committed by the individual when he was a child. I shall detail them when I come to summarise, and extract from, the reasons of the Tribunal. The offences were disposed of in the Children’s Court of New South Wales in 1982, by way of the imposition of a good behaviour bond.

Over the years, the individual has become a successful businessman, including with regard to child care centres. Although he has neither worked directly with children in the past, nor intends to work directly with them in the future, his lack of a clearance has presented serious logistical problems in the running of his business.

Separately, over the years the individual has been convicted of further offences as an adult. There have also been a large number of allegations made by different persons about his conduct. Again, I shall provide an extract from the reasons that shows his convictions, and the allegations that have been made about him, when I come to review the contents of the reasons of the Tribunal.

On 24 April 2014, the individual sought a clearance from the Guardian. That was required because of the Children’s Court matters from over 31 years previously.

On 6 January 2015, an officer of the Guardian wrote to the individual, advising him that his application for a clearance was refused. Reasons were given for that decision.

On 7 December 2015, pursuant to s 27(2) of the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act), the individual filed an application for review of the decision of the Guardian to the Administrative and Equal Opportunity Division of the Tribunal.

On 10 October 2016, the highly qualified and experienced forensic psychiatrist Dr Allnutt signed a report about the individual that he had prepared at the request of the Guardian. The report records the fact that the individual did not consent to being examined by an expert retained by the Guardian. That report was placed before the Tribunal by the Guardian. It may be summarised as follows.

Dr Allnutt considered all of the offences, allegations and complaints made against the individual since he was aged 15.

He noted that the quality of his expert opinion on the risk of future sexual or violent offences by the individual was limited, as he had not had the opportunity to interview the individual, and thereby to conduct an assessment of his mental state, or a comprehensive psychiatric assessment. For that reason, the forensic psychiatrist was unable to make an assessment, or even a comment, as to whether the individual suffers from a mental illness, anxiety disorder, or personality disorder.

However, on the information placed before him, Dr Allnutt was able to apply a diagnostic tool (known as Static 99) concerning the risk of future sexual and violence recidivism, and noted that the individual fell into the moderate to low risk group for sexual offences.

In particular, Dr Allnutt emphasised the absence of any new convictions for serious offences, and the fact that the individual’s last conviction for a sexual offence was in November 1982. Furthermore, his last conviction for a drug offence was in 2003.

Importantly, given the lack of an interview with the individual and the fact that there are other tools better suited to assessing the risk of future violence, Dr Allnutt stated that he could not provide a definitive opinion as to the potential risk that the individual could pose to children (sexual or otherwise).

Dr Allnutt ultimately qualified his findings for that overarching reason, and recommended that a comprehensive clinical assessment of the individual could be conducted.

Separately, the updated written submissions of the Guardian to the Tribunal were filed with the Tribunal on 3 November 2016.

The written submissions of the individual to the Tribunal were filed with the Tribunal on 10 November 2016.

The hearing before the Tribunal took place in Melbourne on 11 November 2016.

The Tribunal delivered its decision on 15 December 2016; its citation is CHN v Children’s Guardian [2016] NSWCATAD 294. As I have said, the Tribunal reversed the decision of the Guardian, and granted the individual a clearance.

The reasons may be summarised, and extracted from, as follows.

They open by recounting the procedural history of the matter in general chronological form.

The reasons then summarise the offences that led to the risk assessment being undertaken as follows:

With regard to that behaviour and the behaviour of the individual as an adult, the reasons record the following:

Separately, the reasons discuss at [15] the role of the Tribunal in a way that does not found a ground of appeal.

They go on to discuss the applicability of certain transitional statutory provisions; again, that discussion does not found any ground.

The reasons set out the evidence relied upon by the parties; refer to a number of applicable statutes; and thereafter work their way methodically through the mandatory factors for consideration set out in s 30(1) of the Child Protection Act. Subject to the grounds that I discuss in more detail below, that process is not the foundation of a ground of appeal either.

The reasons proceed to summarise the submissions of the Guardian and the individual, and in the course of doing so refer to salient features of the cross-examination of the individual. Yet again, that part of the reasons does not found a ground.

In recounting the submissions of counsel for the Guardian, the Tribunal said the following:

The nub of the reasons appears under the heading “Consideration”, and is as follows:

The reasons conclude with the making of orders setting aside the decision of the Guardian to refuse to grant the individual a clearance, and, in substitution, calling upon the Guardian to grant the individual that clearance.

An amended summons of the Guardian was filed in Court on the date of the hearing of the appeal. With the consent of the individual, the first ground of appeal was further amended orally by counsel for the Guardian in the course of the hearing before me.

At the commencement of the hearing, the parties helpfully reduced the plethora of material that was proposed to be placed before me. In the event, tendered in evidence on the appeal was only: the written application by the individual to the Tribunal seeking review of the decision of the Guardian; the report of Dr Allnutt; the written submissions of each party before the Tribunal; portions of the transcript of the hearing before the Tribunal; and the reasons under appeal themselves. I also had the benefit of extensive written and oral submissions from each counsel.

It is convenient now to turn to deal seriatim with each of the grounds to be found in the amended summons, as further amended before me.

Because of the degree of useful refinement of issues that occurred at the hearing, the following summaries of the submissions of counsel for the Guardian are derived largely from the transcript of the oral submissions, rather than the written submissions that preceded them.

Counsel for the Guardian submitted that the Tribunal had failed to make findings on the matters alleged against the individual, and had merely engaged in a recitation of facts and legal matters, as opposed to making a determination about them. This approach, it was said, was inadequate in the context of a statutory scheme addressed to the important question of assessment of risks to children.

It was said that, in considering the allegations against the individual and his history of criminality, misconduct and offending, the Tribunal was first required to consider whether it was satisfied that each of the alleged facts were true or not on the balance of probabilities.

If the Tribunal was not so satisfied, it was then required to consider whether it emphatically rejected the allegation as being untrue.

If the Tribunal did not find that the allegation had been positively untrue, it was then required to consider whether there was a lingering doubt about the alleged fact or alleged wrongdoing.

Having considered the allegations in this way, the Tribunal then needed to give each allegation the weight that it thought was appropriate.

Reliance was placed for those propositions on M v M and Office of the Children’s Guardian v CFW.

It was said further that the Tribunal’s reasons did not deal with the crucial issue of an alleged personality disorder on the part of the individual; an issue, it was said, that simply could not be ignored.

Counsel for the Guardian submitted that in failing to address the allegations against the individual in the way described above, or to dispose of them in any other way, the Tribunal made the error alleged in ground one.

In short, the submission was that a case was presented to the Tribunal that it did not dispose of, in accordance with the approach set out in M v M and Office of the Children’s Guardian v CFW, or by any other available means.

It can be seen that the ground really calls upon the Tribunal to have done four things.

First, to have made findings whether the allegations against the individual were true.

Secondly, to have made findings whether the allegations were to be taken into account.

Thirdly, to have made a finding whether the alleged “personality issue” of the individual was true, in the sense that it had been established.

Fourthly, to take that alleged aspect of his personality into account.

Fifthly and finally, to make “any other decision to dispose of” the allegations.

In my opinion, no aspect of the ground should succeed.

As for the first aspect, at the hearing before me, counsel for the Guardian accepted that, in circumstances where it is impossible for a decision maker to come to a firm finding about allegations of misconduct or criminality on any standard of proof – whether due to the passage of time, the absence of a formal complaint, the absence of sworn evidence, or indeed of any other evidence or material, or for any other reason – a decision maker in the position of the Tribunal must “do the best it can”. I accept that submission: patently, with respect, it is not reasonable or practical to expect a tribunal of fact that has been provided with documentary evidence of mere allegations from years or decades ago to come to some firm determination as to whether those allegations are objectively true or not. Nor is it an error of law for a decision maker to fail to do so.

In my opinion, the Tribunal complied with the test posited by counsel for the Guardian at the hearing with regard to determining the truth or falsity of the allegations: it did the best it could on the material placed before it.

As for the second aspect, the reasons show that the Tribunal did indeed take those allegations into account, but found them to have little weight in demonstrating a risk to children, for the simple reason that none of them pertained to children.

Minds may legitimately differ about that line of reasoning about factual matters. But the fact that the Tribunal took the allegations into account in a way with which the Guardian may be dissatisfied bespeaks no legal error.

As for the third aspect, the same may be said: the reasons show that the Tribunal made an assessment, as best it could, of the material that was relevant to the personality of the individual, bearing in mind the paucity of psychological and psychiatric evidence with which it was provided.

It came to the conclusion that the individual is indeed a person who has behaved in an anti-social manner as an adult; who lacks insight; who has engaged in misconduct; who has not been truthful about his level of drinking, and who has been boorish. But it also found that he does not “pose a risk to children”.

Again, in my opinion the Tribunal did the best it could with regard to the personality of the individual, bearing in mind that it was impossible to be conclusive about a great many of the allegations; again, the mere fact that a party may disagree with an ultimate factual finding that is founded on a particular line of reasoning from other facts does not constitute legal error.

As for the fourth aspect, the reasons of the Tribunal that I have summarised and extracted verbatim show that its assessment of the personality of the individual was undoubtedly taken into account by it in coming to its decision. Indeed, to my mind, the whole tenor of the reasons is an analysis of what the individual has done in the past; why he has done it; what aspects of his personality underpinned his behaviour; and what role, if any, his behaviour and personality play in demonstrating that he constitutes a risk to children in the future.

As for the fifth aspect, the Tribunal was in no position to “dispose of” the allegations that had been made against the individual over many years. That is because no decision maker could have come to some conclusive determination about those matters, in light of the state of the evidence.

In short, I am not persuaded that any error of law is demonstrated by way of any aspect of ground one, whether individually or cumulatively.

Section 30(1) of the Child Protection Act is as follows:

It was explained by counsel for the Guardian at the hearing that it is accepted that the Tribunal worked its way through the subparagraphs of s 30(1) of the Child Protection Act. I understood that it was also accepted in oral submissions that the Tribunal did refer to the first part of paragraph (i) of the subsection.

But it was said generally that mere recitation of factors, and the material underpinning them, does not constitute consideration, which is the mental exercise required by the chapeaux of the subsection.

Furthermore, nowhere in the reasons is there to be found a reference to the impact on children of any repetition of the offences or conduct under consideration. In other words, the contention was that the mandatory consideration of the second part of paragraph (i) had not occurred. That constituted, it was said, a legal error that should found a successful appeal leading to the decision of the Tribunal being set aside, and consequent remitter.

As for the proposition that that Tribunal did not comply with the statute by considering the mandatory factors listed in the subsection, I do not accept that submission. The reasons show that the Tribunal methodically worked its way through the long list of matters that it was required by Parliament to take into account, and considered them. There is nothing to suggest that that methodical approach was mechanistic, or simply done by rote.

As for the second part of this ground, it is true that it was mandatory, pursuant to the second part of paragraph 30 (1)(i) of the Child Protection Act, for the Tribunal to “consider” the impact on children, if an offence of the kind committed by the individual many years ago when a child, were to re-occur. And I am prepared (for the sake of determining the ground expansively) to accept that the reference to “conduct” in that paragraph could extend to the convictions of and allegations pertaining to, the individual as an adult. Furthermore, it is true that, in the reasons, the Tribunal does not explicitly advert to that factor. The fact is, however, that the Tribunal affirmatively found that there was no risk of such an event occurring with regard to a child.

In other words, it is true that, in a theoretical sense, the Tribunal did not advert to a mandatory consideration in accordance with statute. But in my opinion, that failing is of no practical significance, for the simple reason that the failing relates to the assessment of the impact of an event, if it were to occur, in the context of the Tribunal having found that there was no risk of it actually occurring.

In a highly refined sense, it can be said that the Tribunal committed a legal error. But I do not propose to uphold an appeal based upon a failure to make a finding required by statute that was completely unnecessary in the actual circumstances of the case; namely, an anterior finding of fact that cannot be impugned as an error of law, and that rendered the failing nugatory.

This ground cannot succeed.

Counsel emphasised orally that this was perhaps his strongest ground.

He submitted that the Tribunal only addressed itself to what had happened in the past, and whether risk materialised or crystallised in the past, without averting to whether risk could crystallise in the future. In the statutory context in which the Tribunal was required to consider the individual’s conduct, “risk” denotes a future occurrence which may harm children. It was said that the Tribunal had erroneously glossed over this essential step, simply “recited” the statutory test, and thereafter made its rulings.

I do not accept the submission that the Tribunal focused merely on the past, and made no assessment of future risk. That is because, at various parts of its reasons, the Tribunal said the following:

To my mind, the first paragraph extracted from the reasons above plainly shows that the Tribunal was focusing on the future.

And in any event, leaving aside the words actually used in that part of the reasons, and focusing on the meaning of the concept of “risk” – a word repeatedly used in the reasons – an assessment of risk is an assessment of the possibility of something adverse occurring in the future. As a matter of commonsense and plain English, assessments of risks do not apply to events in the past, because those events have either occurred or not occurred. Implicitly, a reference to risk is a reference to the possibility that an event may occur in the future.

In light of the other portions of the reasons that I have extracted – and, indeed, the overarching tenor of the reasons, read as a whole – the allegation in the ground that the Tribunal failed to address the question “of whether or not [the individual] poses a risk to the safety of children in future” cannot be sustained.

Ground three must fail.

Counsel for the Guardian submitted that a practical burden fell upon the individual to place psychological evidence before the Tribunal. The individual could have discharged that burden, it was said, by placing his own expert evidence about the topic of his personality before the Tribunal.

As well as that, as a result of having refused to be assessed by Dr Allnutt, the individual had left the evidence unclear as to his psychological state, despite the fact that the Guardian was submitting to the Tribunal that that was an important question for determination.

And yet, it was said, the Tribunal had failed to apply the principle in Jones v Dunkel adversely to the individual.

Furthermore, it was said that, as can be seen from the extract that I have provided above at [32] of my judgment, the Tribunal was too restrictive in its approach: at the end of [102] it took the approach that it was only if there was evidence adverse to the appellant from an expert witness that an inference could be drawn against him, when in fact the case for the Guardian before the Tribunal was that the relevant risk could be inferred from the convictions and allegations themselves, even in the absence of probative expert evidence.

This ground may also be determined reasonably concisely, in my opinion. For the following reasons, it cannot succeed.

The decision of the High Court of Australia in Jones v Dunkel stands for the primary proposition that the failure to lead evidence may lead a tribunal of fact more readily to draw an inference in favour of the case of one’s opponent, so long as there is indeed evidence in the case of the opponent that can lead to the inference being drawn. The secondary proposition for which the case stands is that a tribunal of fact may infer that a party did not place evidence available to it before the tribunal of fact because the party appreciated that that evidence would not assist its case.

Most significantly to my determination of this ground, in accordance with the summary of the propositions to be found in the decision that I have provided above, drawing an inference pursuant to Jones v Dunkel, as counsel for the Guardian explicitly conceded, is not mandatory; rather, he characterised it as a “discretionary” exercise. And yet the complaint made now is that the Tribunal fell into legal error in not drawing an inference adverse to the individual in accordance with the two propositions. But it was not explained (beyond the latter part of the ground, to which I shall turn shortly) how the discretion exercised by the Tribunal not to apply the propositions purportedly miscarried: see House v the King (1936) 55 CLR 499; [1936] HCA 40.

Secondly, it is true that drawing an inference pursuant to the two propositions is not a rule of evidence in the strict sense; rather, they are ways in which a tribunal of fact may approach the absence of evidence. But it is important, I think, to a ground asserting legal error as a result of failing to apply those propositions, that it is undisputed that the rules of evidence did not apply in the proceedings before the Tribunal.

In other words, to my mind it would be an odd result if the drawing of inferences were able to be required strictly, in circumstances in which the rules of evidence did not apply strictly, or indeed at all.

Thirdly, I also consider it important that it was not disputed that neither party bore an onus of proof in the proceedings, in accordance with s 63 of the Administrative Decisions Review Act 1997 (NSW). Although it is true that, if it sees fit, a tribunal of fact can rely on the two propositions to draw an inference against a party, who does not bear a persuasive burden, it is not easy to think of circumstances in which an adverse inference based on either of the two propositions could be drawn against a party when neither a persuasive nor evidential burden is borne by that party. It is harder to think of circumstances in which it should be, and very hard to think of circumstances in which it must be. And yet that is the thesis that underpins the ground, because it was submitted orally that the Tribunal erred in law by declining to apply the propositions.

Fourthly, there was no dispute before me that persons who are parties to proceedings before the Tribunal with regard to clearances are subject to no statutory or other obligation to subject themselves to psychological or psychiatric examination by an expert qualified by the Guardian. I do not accept the proposition that a refusal to comply with a request to be examined – which one is under no obligation to do – can thereafter be held against one, at least in the circumstances of a hearing such as this. And that is especially the case when sincere compliance with this particular request of the Guardian will inevitably mean that a stranger in the form of a psychologist or a psychiatrist, and strangers in the form of the legal team who qualified that expert, will be privy to one’s innermost thoughts and feelings.

Fifthly, at [102] of its reasons, the Tribunal dealt with the whole question of Jones v Dunkel, as the extract that I have provided above demonstrates. The approach taken by the Tribunal was, to my mind, almost completely unexceptionable.

In particular, I consider that the Tribunal referred to Gaskell v Denkas Building Services merely in support of its approach that a tribunal of fact is not required to draw an adverse inference, in accordance with that decision; that approach is, with respect, correct.

Sixthly, there is force in the proposition of counsel for the Guardian that the approach taken by the Tribunal in the last sentence of [102] was too restrictive, if what was meant was that it was a requirement, before an inference may have been able to be drawn against the appellant, for there to have been cogent expert evidence in the case for the Guardian. As Jones v Dunkel itself demonstrates, the inference that a tribunal of fact may draw in favour of a party and against the opposing party may arise as a result of evidence in the case of the first party that is not of a restricted kind; indeed, it can be circumstantial evidence that leads to an inferential finding to which a response is not made.

But that infelicity on the part of the Tribunal is of little moment: the whole flavour of the paragraph, read as a whole, is that the Tribunal has no intention of relying upon either proposition in Jones v Dunkel against the individual. And underpinning that approach, I consider, was a finding by the Tribunal that it would not infer, based on the evidence presented by the Guardian, that the individual constituted a risk for children, whether that evidence was contradicted by him or not.

In other words, I consider that this aspect of the ground is focused on a minor mis-statement by the Tribunal that had no real or practical effect on its determination.

Seventhly and finally, to the extent that the ground extends to “analogous reasoning”, if what is meant by that is simply that the Tribunal should have taken a more adverse view of the position of the appellant with regard to the absence of psychological or psychiatric evidence from an expert, no error is demonstrated in that regard.

For a number of reasons, therefore, in my opinion ground four must fail.

Counsel for the Guardian submitted that the Tribunal failed to comply with its statutory duty, pursuant to s 62 of the Act, which required that it provide adequate written reasons for its decision to the parties, including with regard to its “reasoning processes.”

In short, it was submitted that, taking the reasons as a whole, and focusing on that portion which appears under the heading “Consideration”, as opposed to those portions that simply recite the procedural history, the nature of the proceedings, the evidence, and the submissions, the Tribunal failed to articulate sufficiently the reasons, and reasoning, underlying its decision. It was submitted that the provision of such matters was essential to a proper discharge by the Tribunal of its task, in accordance with statute, and that that failing constituted an error of law.

I consider that this ground can be determined concisely.

It is true that the portion of the reasons that provide the actual determination – what I have called their nub – is pithy.

But they are quite clear in their content: they are an acceptance that, over many years, the individual has behaved boorishly, unattractively, and anti-socially. Since he was aged 15 years, however, there has not been any evidence of him committing an offence against a child, whether sexual or of any other kind. In light of the fact that the fundamental inquiry being undertaken by the Tribunal was whether the individual presented a risk to children, the reasons make clear that his criminal and vulgar behaviour did not, in the opinion of the Tribunal, demonstrate such a risk. Because of the simplicity of the proposition that found favour with the Tribunal, it did not require an elaborate explanation.

Of course, it is necessary for a decision maker to give adequate reasons, and a failure to do so can constitute an error of law. But what is adequate will very much depend upon all of the circumstances of the matter being decided. To my mind, the reasons given by the Tribunal for reversing the decision of the Guardian were perfectly adequate, in the circumstances of this case.

It follows that, in my opinion, ground five must fail.

No ground of appeal asserting legal error on the part of the Tribunal has been established that should lead to the appeal being upheld. It follows that the appeal of the Guardian must be dismissed.

I was informed by counsel for the Guardian at the conclusion of the hearing that it was accepted that, if the appeal were to fail, his client would pay the costs of the respondent individual.

For the foregoing reasons, I make the following orders: