Office of the Children’s Guardian v EQE

1. [1]

   On 22 February 2021 the Children’s Guardian notified the defendant, who has been given the initials EQE, that he had been refused a Working With Children Check Clearance (WWCCC), under the Child Protection (Working with Children) Act 2012 (NSW) (the Act). The refusal arose as a result of EQE having been charged with four offences in relation to his stepdaughter when she was aged between 13 and 16 years. He stood trial, and on 7 December 2018 he was found not guilty on all charges.

2. [2]

   On 29 March 2021 the defendant filed an application in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales (NCAT) seeking that the Tribunal review the decision of the Children’s Guardian to cancel his WWCCC.

3. [3]

   On 30 November 2021, the Tribunal set aside the decision of the Children’s Guardian and directed that it was to issue a WWCCC within 28 days from the date of the decision: EQE v Children’s Guardian [2021] NSWCATAD 357.

4. [4]

   By summons filed 23 December 2021, the Children’s Guardian appeals from that decision.

5. [5]

   The appeal is brought pursuant to cl 17 of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) which provides:

6. [6]

   The grounds of appeal are as follows:

The criminal charges

1. [7]

   At the time of the hearing before the Tribunal, the defendant was a 51-year-old married man. He was the father of a daughter (deceased) and a son (aged 18 years) to his current wife of 21 years. He was also the stepfather of five other children. He has a son and daughter from a previous marriage and ten grandchildren.

2. [8]

   He has been employed with NSW Corrective Services for over 35 years. He has also been involved with studying and teaching martial arts to children and adults for over 30 years.

3. [9]

   On 30 October 2015 he was issued with a WWCCC due to his involvement in the martial arts industry.

4. [10]

   On 25 January 2017 he was charged with four offences, being aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW), aggravated indecent assault contrary to s 61M(2) of the Crimes Act, and two counts of aggravated sexual assault contrary to s 61J of the Crimes Act. The complainant was the defendant’s stepdaughter who was given the initial D in the Tribunal.

5. [11]

   The Tribunal summarised the charges as follows:

6. [12]

   On becoming aware of the charges on 27 January 2017, the Children’s Guardian cancelled EQE’s WWCCC. When EQE was acquitted of the charges he applied for a WWCCC. After undertaking a risk assessment, the Children’s Guardian refused the WWCCC.

The grounds of appeal

1. [13]

   At the hearing, the Children’s Guardian was represented by Ms Roughley and Mr Pulsford of counsel. The defendant was unrepresented. The appeal to this Court is on a question of law only. The submissions of the Children’s Guardian, concerning as they did the correct procedures to be adopted by the Tribunal in relation to ss 18 and 30 of the Act, were difficult for the defendant to understand and deal with. I endeavoured to explain to the defendant what the issues were on the appeal, and that any decision I made did not determine the merits of the matter, but the transcript will show that the defendant’s submissions focused on the merits of the matter.

2. [14]

   Despite there being no effective contradictor, I consider that the position is clear that the Tribunal did not adopt the correct approach to its consideration of the matter, for the reasons which follow.

3. [15]

   So that these reasons can be understood, it is necessary to set out at some length the way the Tribunal approached its task as disclosed in its judgment.

4. [16]

   The Tribunal first set out some background and relevant legislative provisions in relation to working with children, including s 18(2) of the Act. Next, it set out some authorities in relation to the concept of assessment of “risk”. It then noted the evidence that was given, including the detail of the charges brought against the defendant (set out above at [11]).

5. [17]

   In a section headed “EQE’s evidence” the Tribunal considered each of the charges brought against the defendant, as well as the transcript of a conversation lawfully recorded between the complainant and the defendant before the defendant was charged. The transcript was particularly relevant because of a number of answers the defendant gave to matters put to him by the complainant. The defendant was cross-examined about what was said in the transcript, and about his interactions with the complainant generally.

6. [18]

   The Tribunal then said this:

7. [19]

   The Tribunal then referred to Family Court proceedings between the defendant and his first wife, where allegations of physical and sexual abuse of two of their children had been made by the former wife against the defendant. The Tribunal said:

8. [20]

   The Tribunal then noted, briefly, submissions made by the plaintiff and the defendant, and proceeded to deal, seriatim, with the matters required to be considered by s 30(1) of the Act. In that section of the judgment, the Tribunal said this:

9. [21]

   Having dealt with the s 30(1) matters, the Tribunal said:

10. [22]

    Section 18(2) of the Act provides:

11. [23]

    In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court considered the issue of sexual abuse within the context of family law disputes. The Court said:

12. [24]

    In BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523, Beech-Jones J (as his Honour then was) said at [33]:

13. [25]

    That approach in dealing with applications under the Act has been approved by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34], and more recently in CXZ v Children’s Guardian [2020] NSWCA 338 at [7], [28] and [54]. In the latter case, Simpson AJA said at [57]:

14. [26]

    Justice Basten said at [7]:

15. [27]

    It may be observed that in the Tribunal’s reasons, it finds on four occasions (at [61], [62], [75] and [86]) that it could not make a positive finding that the circumstances alleged in the charges had occurred.

16. [28]

    The Tribunal was correct in ascertaining first whether it could be satisfied that the circumstances had occurred. That accorded with what was said in BKE where Beech-Jones J said:

17. [29]

    What the Tribunal then failed to do was to move to the next part of what was said in BKE (in italics at [24] above), and what was clearly expressed by Basten JA in CXZ at [7(d)]:

18. [30]

    The present case was one where the evidence need to be weighed up after the Tribunal had found itself unable to make a positive finding. There was sufficient evidence to warrant the Director of Public Prosecutions preferring the charges against the defendant and taking the matters to trial. The Tribunal needed to weigh up the evidence, including considering whether it regarded the defendant as honest (which it found), what should be made of the transcript which, prima facie, contained some ambiguous answers from the defendant, considering the evidence of the other witnesses at the trial, and considering the impact of the allegations made in the Family Court, even though that Court found in the defendant’s favour.

19. [31]

    Whilst it considered some or all of those matters, it did so as part of its initial consideration to see whether the allegations could be established. In not then moving to assess the whole of the evidence, the Tribunal failed to consider “whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children”.

20. [32]

    That the Tribunal erred in that way is made clear by two other passages in the judgment. First, the Tribunal said at [87]:

21. [33]

    In the face of what is said in BKE, CXZ and CF1, it was an error to conclude from an inability to make a positive finding that events occurred, that the defendant was not a real and appreciable risk to the safety of children.

22. [34]

    Secondly, and more significantly because it is the ultimate finding of the Tribunal, at [102] the Tribunal said

23. [35]

    This is a troubling finding because, without considering the matter any further, the Tribunal which had, to that point, not been able to make a positive finding that the events occurred, found on the balance of the probabilities that the events did not occur. This is very similar to the error made by the Tribunal in CF1. I said at in that case at [49]:

24. [36]

    In the same way, it was an error for the Tribunal to conclude from a finding that the events did not occur on the balance of probabilities, without any further consideration, that the defendant does not pose a real and appreciable risk to the safety of children. This is because there is no consideration of the possibility that the conduct, the subject of D’s allegations, occurred. As I observed in CF1 at [79]:

25. [37]

    On one view, the Tribunal’s movement directly from the finding that the events did not occur on the balance of probabilities to a conclusion that the defendant did not pose a risk to the safety of children, leads to a view that the Tribunal regarded the allegations as groundless. That is really the basis for ground 1(c) of the appeal.

26. [38]

    The plaintiff accepts that the Tribunal did not say that the allegations were groundless. It seems to me unlikely that the Tribunal regarded the allegations as groundless. Certainly, the Tribunal’s language did not suggest that the allegations were groundless; rather the language suggested they were unproved on balance.

27. [39]

    In Children’s Guardian v CF1 [2020] NSWSC 1673, I said at [43]:

28. [40]

    There was certainly competing evidence in the present case. In the absence of a finding by the Tribunal that the allegations were groundless, I consider that the better analysis of what the Tribunal did is that it simply failed to assess whether the possibility that the events occurred may support a view that the defendant poses a risk tro the safety of children.

29. [41]

    Ground 1 is made out.

30. [42]

    Section 30(1A) of the Act provides:

31. [43]

    After reaching its finding (at [102]) that the defendant did not pose a real and appreciable risk to the safety of children, and should be granted a WWCCC, the Tribunal said this:

32. [44]

    The plaintiff submitted that the Tribunal failed to undertake the task it was required to carry out by s 30(1A). The plaintiff submitted that the only interest the Tribunal considered was the interest the defendant had in continuing his career with NSW Corrective Services, and as a martial arts instructor and educator. The plaintiff submitted that a consideration of the defendant’s career with Corrective Services was misconceived because he had already returned to that position at the time of the Tribunal hearing.

33. [45]

    The plaintiff submitted that if error was shown in the manner either of grounds 1 and 2 asserted, the Tribunal’s ultimate determination was irrational, illogical and/or not based on findings or inferences of fact supported by logical grounds.

34. [46]

    In my opinion, ground 3 can be put to one side. The plaintiff accepts that it is only made out if either of grounds 1 or 2 is upheld. It would follow from upholding grounds 1 or 2 that the Tribunal had not gone about its task in the correct way, with the result that the determination of matters in s 30(1A) would have to be set aside. In that way, it is not necessary to uphold ground 3 for the appeal to be allowed.

35. [47]

    However, the ground is expressed in such a way that the Tribunal, to which the proceedings will be remitted, may well consider that this Court has determined, on the merits, that s 30(1A) has not been satisfied. It is a subtle difference between a decision on the merits and a determination that the findings made on the s 30(1A) matters were illogical or irrational.

36. [48]

    The real issue raised in relation to s 30(1A) is whether the Tribunal properly considered the two matters the subsection requires, although ground 2 focuses on par (b).

37. [49]

    In ZZ v Secretary to the Department of Justice [2013] VSC 267 it was held at [213] that,

38. [50]

    Accordingly, consideration of the matters in s 30(1A) was correctly dealt with by the Tribunal at the end of the process. However, where I have found that the earlier process was flawed because of a failure to consider certain matters, a consideration of the matters in s 30(1A) cannot properly be carried out. That is because of the width of those considerations.

39. [51]

    In considering the Victorian equivalent of s 30(1A) (S 13(3)(a) of the Working With Children Act 2005 (Vic) (as to (a)), and cl 102(2) of Sch 2 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (as to (b)), the Victorian Civil and Administrative Tribunal said in VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36]:

40. [52]

    This decision appears to have been followed by NCAT (although not by reference to its name) in CSW v Children’s Guardian [2017] NSWCATAD 326 at [136], where a similar approach was adopted “as in the Victorian cases”. In my view, the approach set out in VQB is a correct approach when considering s 30(1A)(a).

41. [53]

    The Tribunal in the present case appears to have attempted to consider some relevant matters to reach a satisfaction about what was required. It was certainly relevant to the consideration under s 30(1A)(a) that the charges had been dismissed, that the Family Court had found as it had, and that there was no evidence of any wrongdoing as a martial arts instructor for more than 30 years.

42. [54]

    The difficulty about it is that the Tribunal’s earlier failure to go beyond examining whether the events the subject of the charges were made out (the ground 1 point), means that all relevant matters were not considered. If the Tribunal had gone on to consider what I have held they ought to have considered (that is, addressing the possibility that the allegations were true and how that impacted on the risk, even though it could make no positive finding, or even though it found on the balance of probabilities that the events did not occur), it would likely have performed the task that assisted in reaching a satisfaction that a reasonable person would allow their child to have direct contact with the defendant.

43. [55]

    There is some authority in relation to paragraph (b) of what constitutes public interest in this context.

44. [56]

    In Secretary, Department of Justice v LMB [2012] VSCA 143 the Victorian Court of Appeal said of the equivalent Victorian provisions:

45. [57]

    In PJR v Secretary to the Department of Justice [2006] VCAT 2455; (2006) 25 VAR 336 the Victorian Civil and Administrative Tribunal said at [45]:

46. [58]

    This passage was expressly approved by Bell J in ZZ v Secretary, Department of Justice [2013] VSC 267 at [199]. A similar view was expressed in ECQ v The Children’s Guardian [2021] NSWCATAD 217:

47. [59]

    It was not wrong, therefore for the Tribunal in the present case to have regard to the defendant’s desire to continue in his job with Corrective Services, and to continue as a martial arts instructor and educator. However, as was said in PJR and ZZ, the central consideration of public interest is the need to protect children from sexual and physical harm. No consideration of that matter appears in the Tribunal’s reasons at this stage of its determination, and this stage is the “final check on an applicant”: ZZ at [213].

48. [60]

    I would uphold ground 2 because the Tribunal’s consideration of both pars (a) and (b) of s 30(1A) was inadequate, and because the Tribunal’s focus on assessing whether the events the subject of the charges occurred meant that it did not come to grips with the further assessment that need to be made about “risk” in s 18, which in turn meant that it could not properly assess both of these jurisdictional facts that were pre-requisites to the exercise of power the Tribunal engaged in: Children’s Guardian v CVE [2017] NSWSC 1342 at [23].

Conclusion

1. [61]

   As I explained to the defendant, and as is well understood by lawyers, the role of this Court on an appeal is not to determine the matter on the merits, nor to suggest to the Tribunal, to which the proceedings are to be remitted, what the appropriate outcome should be. The findings I have made concern only the correctness or otherwise of the process adopted by the Tribunal from which the appeal has been brought.

2. [62]

   The plaintiff seeks costs of the appeal. The plaintiff has been successful in relation to two of the grounds of appeal, albeit that the defendant was not legally represented. The errors were those of the Tribunal, and were not contributed to by the defendant. In all the circumstances, although the defendant should pay the plaintiff’s costs, the defendant should have a certificate under the Suitors’ Fund Act 1951 (NSW).

3. [63]

   Accordingly, I make the following orders:

   1. (1)

      The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a Working With Children Check Clearance is set aside.

   2. (2)

      Remit the proceedings to the Tribunal, differently constituted, to be determined according to law.

   3. (3)

      The defendant is to pay the plaintiff’s costs of the proceedings.

   4. (4)

      The defendant is to have a certificate under the Suitors Fund Act 1951 (NSW).