CGB v Children's Guardian

[2018] NSWSC 776

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CGB v Children’s Guardian [2018] NSWSC 776

Hearing dates:

2 February 2018

Date of orders:

31 May 2018

Decision date:

31 May 2018

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The appeal is dismissed.

 

(2) The summons filed 1 December 2017 is dismissed.

 (3) The plaintiff is to pay the defendant’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – judicial review ­– appeal against decision of the NSW Civil and Administrative Tribunal – Child Protection (Working with Children) Act 2012 (NSW) – working with children check clearance – whether the Tribunal erred in the use it made of evidence of prior representations that had been admitted for a non-hearsay purpose only – whether the Tribunal erred in its application of s 30(1)(j) of the Child Protection (Working with Children) Act 2012 (NSW) – whether the Tribunal provided adequate reasons – appeal dismissed

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 10, 18, 27, 28 and 30
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 137
Civil and Administrative Tribunal Act 2013 (NSW), s 17, 38 and 62
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8
Crimes Act 1900 (NSW), ss 61J and 62
Evidence Act 1995 (NSW), s 59 and 60

Cases Cited:

Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Applicant WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
BVT v Office of Children’s Guardian [2017] NSWSC 1763
Children’s Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v CKF [2017] NSWSC 893
Collins v Urban [2014] NSWCATAP 17
Commission for Children and Young People v V [2002] NSWSC 949
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
M v M (1988) 166 CLR 69; [1988] HCA 68
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Norvill v Barton; Tickner v Chapman and Tickner v Barton (1995) 57 FCR 451; (1995) 133 ALR 226
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Roberts v Balencio (1987) 8 NSWLR 436
Thang Van Pham v NRMA Insurance Limited
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118

Category:

Principal judgment

Parties:

CGB (Plaintiff)
Children’s Guardian (Defendant)

Representation:

Counsel:
C McGorey (Plaintiff)
AB Douglas-Baker (Defendant)

  Solicitors:
Legal Aid NSW (Plaintiff)
Office of the Crown Solicitor (Defendant)

File Number(s):

2017/207032

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds specified in s 8(1)(e) of the Act, order that: (a) the name and address of the plaintiff and any child referred to in the evidence before this Court or the New South Wales Civil and Administrative Tribunal; and (b) the name and address of any other person whose publication would identify their names and addresses, not be published without the leave of the Court. (2) The plaintiff is to be referred to as CGB.

Judgment

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

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

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

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

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

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

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

Background

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

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

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

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

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

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

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

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

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

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

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

19. On 26 August 2014, CGB applied to the Children’s Guardian for a working with children’s check clearance as AB was an authorised carer of GA. (Plaintiff’s Submissions, [32]). Section 10(1) of the Child Protection (Working with Children) Act2012 (NSW) (WWC Act) requires persons residing in the same property as an authorised carer must hold a clearance under that Act.

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

The working with children statutory regime

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

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

“7 The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows:

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.”

8 Section 4 of the Act provides that the “safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration” in the operation of the Act.

9 The word “children” is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word “child” has the same meaning.

10 The term “child abuse” is not defined in the WWC Act and should be given its ordinary meaning. In this regard, the Tribunal has referred to s 227 of the Children and Young Persons (Care and Protection) Actwhich creates an offence of “child abuse”, which is in the following terms:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence.

Maximum penalty: 200 penalty units.”

11 Subsection 8(1) of the WWC Act prohibits a person from engaging in “child-related work”, unless:

(a) the person holds the relevant working with children check clearance; or

(b) there is a current application, by the person, to the respondent for the relevant working with children check clearance (i.e. a clearance).

This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

12 Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ a person, in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

13 Sections 6 and 7 define what is meant by “child-related work.” In this regard, the role of an authorised carer is listed as “child-related work” in s 6(3)(c) of the WWC Act.

14 A clearance is not granted for specific child-related work, as once it is granted it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian &Anor[2015] NSWSC 523at [27].

15 Section 18 prescribes how the respondent is to determine an application for a clearance. That section relevantly provides:

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) …

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3”.

16 The offences of which the applicant was charged are “disqualifying offences”: see WWC Act, Sch 2, cl 1(1)(e). However, as he was not convicted or found guilty of these offences he is not a “disqualified person”. However, by reason of the 1999 and 2001 charges laid against him, he was subject to an “assessment requirement”: WWC Act, s 14. The respondent carried out that assessment pursuant to s 15 of the WWC Act and was satisfied that the applicant posed a risk to the safety of children. Being so satisfied, s 18(2) required the respondent to refuse his application for a clearance.

17 The Tribunal has accepted the word “risk”, in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People vV[2002] NSWSC 949, at [42]. That meaning was in the following terms:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word “risk” with the words that follow, namely, “to the safety of children.”

18 A person who has his/her application for a clearance refused under s 18(2) of the WWC Act has a right to seek external review of that decision by the Tribunal under s 27(1) of the WWC Act.

19 Section 30 of the WWC Act sets out the matters the Tribunal must consider in determining an application for external review. These matters are similar in terms to those matters the respondent is to consider when conducting a risk assessment under s 15.

20 As the applicant made his application for a clearance prior to the coming into force of the amending provisions of Sch 2 of the Child Protection Legislation Amendment Act2015, s 30(1) as it applied prior to those amendments applies in this application. …”

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

“27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled under section 23, because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) (Repealed).”

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of … any matters that caused a refusal of a clearance …,

(b) the period of time since those … matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the … matters occurred,

(d) the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.”

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

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

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

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

“… what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word “risk” with the words that follow, namely, “to the safety of children. …”

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

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

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

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

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

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

“55 As the applicant is not a “disqualified person” there is no statutory presumption that he poses a risk to the safety of children, unless he proves the contrary: see WWC Act, s 28(7). Hence the general principle of administrative review applies in that neither party bears a burden of proof in establishing that the decision was, or was not, “the correct and preferable” decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40]; BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]:

“… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.”

56 It is also accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw[1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children’s Guardian &Anor[2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs vPochi(1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR(supra) at [18]; BJB(supra) at [32] and Holbrook and Australian Postal Commission(1983) 5 ALN N46, [1983] AATA 40 at [23].

57 In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court’s decision in M v M[1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]:

“... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

58 Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.”

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

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

“61 No conviction or finding of guilt has been recorded against the applicant in regard to these offences. A jury found the applicant not guilty of the alleged offences involving child A. That is, the jury found that on the evidence before it, the prosecution had failed to prove, beyond reasonable doubt, that the acts and omission the subject of the two charges laid against the applicant concerning child A. A copy of the transcript of the trial was not before us. We note the respondent sought a copy of the transcript of the trial, but was informed that no transcript could be found.

62 The allegations of child B have at no time been tested at a hearing before a court.

63 The fact that there has been a finding of not guilty by a jury in respect of the charges involving child A does not mean the events as alleged did not occur. Similarly, in the absence of a finding of guilt in respect of the charge involving child B does not mean that the events as alleged by child B did not occur. However, for us to make a finding that the events alleged by child A and child B did occur we would need to be satisfied, on the material before us, that it is more probable than not that the events as alleged by child A and child B in their respective records of interview did occur.

64 In our opinion, in the absence of child A, child B and child OB being available for cross-examination on their respective accounts of the alleged events, we make no finding that it is more probable than not that the alleged events did occur: see Children’s Guardian v BRL[2016] NSWSC 1206 at [31], [45] and [49]. At the same time, for the reasons that follow, we are not satisfied that the events as alleged by child A, child B and child OB are a fabrication should be discarded.

65 As we have already noted, the applicant has at all times denied the allegations of his stepdaughters. In his evidence before us, the applicant reiterated that the allegations were untrue. He said he believed child A:

“made up the allegations against me to justify her moving out at such a young age and continue her relationship with [name of new boyfriend].”

…

71 As we have already noted, AB has at all times said she believed the allegations made by her daughters, child A and child B, were untrue. She said the applicant had denied the allegations and when asked, following the allegations made by child A, child B told her that she knew nothing about the applicant having allegedly harmed child A.

72 In her affidavit filed in these proceedings, AB gave a description of the evidence she said she gave at the applicant’s trial in 2001. This evidence related to the layout of the home and where they lived at the time of the alleged offending involving child A. She also explained her usual evening routine at that time. She explained she went to bed early and what she could see from her bed, as she did not close the door. The essence of her evidence was that, had the events occurred as alleged by child A, she would have noticed or seen what is alleged to have occurred.”

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

“81 While we accept the applicant’s evidence and that of AB that child A and child B came back to live with them, in our opinion, this does not mean that the allegations were a fabrication. In this regard, we note, there is no reliable evidence of child A or child B having said to the applicant, AB, or any other person that they fabricated the allegations. They each participated in a lengthy interview with police. Child A gave oral evidence at the committal hearing and was cross-examined. She did not retract her allegation during this hearing. She went on to give evidence at the applicant’s trial, which occurred almost two years after the allegations had been made. There is no evidence to suggest she retracted the allegations during that trial. In the absence of any contemporaneous record of AB’s conversation with child A’s boyfriend or any direct evidence from him for the purpose of this application, we are unable to place any weight on this aspect of AB’s evidence.

82 While child B’s allegations were made several months after the applicant was committed to stand trial. Why she would make an allegation of this kind to support her sister, child A, is not explained. Child B’s allegations were also corroborated in a statement child OB made to police. In his statement, child OB said that later in the day on which the disclosure was made concerning the allegations involving child B, AB said to him, in the presence of the applicant, “[OB],that’s it, no more said, we have sorted everything out. I don’t want to go through this again.”

83 He went on to say that nothing more was said about the incident and everything seemed to go back to normal. However, he went on to say that many times, when AB and the applicant were drinking grog, AB would say “stuff” like “Why did you say that about [child B] and [the applicant]?”He said he would respond by saying words to the effect, “I don’t know. It’s not true.”He said the reason why he said this was because he knew that’s what AB wanted him to say. He said it` wasn’t the truth but he thought it would be easier for AB and child B if they pretended that he hadn’t seen the applicant and child B in the laundry. He reiterated that he did see what he said he saw.

84 We reiterate, we make no finding that the events as alleged by child A, child B and child OB did in fact occur. However, we are nevertheless satisfied on the material before us that the fact that allegations of the kind made by child A, child B and child OB is a relevant factor to be taken into account for the purpose of assessing whether the applicant poses a real and appreciable risk to the safety of children as we are not satisfied with the explanations of the applicant and AB, that the allegations are a fabrication.”

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

“85 The allegations made by child A were made 17 years ago. The allegations made by child B were made 16 years ago.

86 Since those offences are alleged to have occurred, in 2003, the applicant was again convicted of common assault of AB. The assault occurred at a time the applicant was intoxicated. He assaulted AB by punching her in the right side of her neck. As we have noted the applicant pleaded guilty to the offence and also consented to an AVO being made to protect AB for a period of 12 months.

87 It is the evidence of the applicant and AB that since that time they have reduced the amount of alcohol that they consume. The applicant’s reduction in alcohol consumption they say is due to the applicant’s emphysema and chronic back pain.

88 There has been no further report of the applicant behaving violently towards AB or any other person since April 2003.”

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

“94 As pointed out in the background above, the applicant has prior convictions for violence, which include a number of assaults committed on AB in 1989, and 1990. The first offence occurred shortly after the birth of the applicant’s eldest son. The records state that the assault involved the applicant pushing AB and forcing her to strike her head on a brick wall of a shop. The record states that AB hit the back of her head against the wall and fell onto the ground and that the applicant walked off. AB was taken to the local hospital and required three stitches to the wound to her head.

95 The second assault occurred later that year when AB was pregnant with their second child. The offending conduct occurred in the family home on the night in question. AB is recorded as having informed police that the applicant had punched her in the face causing her nose to bleed and that he later kicked her in the lower back and in the stomach. It is also alleged the applicant threw a number of items of glassware at AB her causing two deep lacerations which required her to attend the local hospital. As noted above, the applicant pleaded guilty to both assaults. However, in these proceedings the applicant denies he assaulted AB in the manner recorded by police. He admits that he slapped her with an open hand and that he did so to make her stop throwing glass at him as she was intoxicated. In these proceedings, AB also denied that the applicant had kicked her.

96 As noted in the background above, the applicant was also convicted of having assaulted the brother of AB in late 1995 and a further offence of assaulting AB in 2003.

97 The applicant in his submissions accepted that any offence of violence is serious, but went on to say that there is a graduating scale of seriousness of such offences. We understand the applicant to submit that his assaults of AB were not at the serious end of the scale for such offending. It is also submitted that the applicant’s alcohol abuse was a significant factor in his offending. As there have been no further offences since 2003, it was argued that this was consistent with the applicant’s significant reduction in the amount of alcohol he consumes. It was the applicant’s evidence that he used to drink “quite heavily”, but he has not done so for the last eight years. He said he now drinks “about once a week” when he and AB catch up with family and then he only has a couple of drinks.”

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

39. The Tribunal also observed at [105]:

“…Dr Lennings noted a sufficient period of time had elapsed since that offending to suggest that a substantial change had taken place in the applicant’s behaviour and that he is unlikely to repeat them because of his moderated alcohol consumption.”

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

“111 Dr Lennings also agreed children witnessing domestic violence is a child protection issue. He said exposure to domestic violence creates anxiety in a child and can also teach a child that violence is acceptable behaviour to solve problems in the future.

112 We accept that the likelihood of the applicant behaving violently or otherwise abusing his grandson is low. However, this is not the question we must ask in this application, as we must consider the likelihood of reoffending in the context of the applicant working in any child related activity.”

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

“116 We reiterate, the principal issue for us to determine in this application is whether the applicant poses a real and appreciable risk to the safety of the children today. There is no presumption that he does pose a real and appreciable risk to children. However, in making our determination we must have regard to the paramount consideration in the operation of the WWC Act, which is the safety, welfare and wellbeing of children in protecting them from child abuse.

117 The matters of concern in regard to risk in this application are the 1999 and 2001 allegations of sexual abuse made against him by his step daughters, child A and child B, his history of assaulting AB and his excessive alcohol consumption. The allegations made by child A, child B and child OB are serious, if true. While we make no finding that the allegations are true, for the reasons stated above, we find that they are nevertheless relevant to the issue as to whether the applicant poses a real and appreciable risk to children.

118 There are four incidents of the applicant having assaulted AB a number of times between 1989 and 2003. This offending, the applicant acknowledges, occurred at a time he was intoxicated, as was AB. It would appear that some of this offending occurred at their home. There is no record of the children having witnessed these assaults. However, they must have seen the injuries sustained by AB.

119 In our view, these assaults on AB are of concern.

120 The allegations made by child A, child B and child OB were made 16 and 15 years ago and since that time there is no evidence of any further allegations of this kind having been made. Furthermore, it has been 13 years since there has been any report of the applicant having acted violently towards AB. It is the evidence of the applicant and AB that this is due to them having reduced their alcohol consumption. These are all factors in favour of the applicant and we accept that the likelihood of applicant offending again in the manner he has acknowledged to have offended in the past is low if indeed he has lessened his alcohol consumption as asserted. While we accept the applicant may have reduced his alcohol consumption, we are not persuaded that the applicant is unlikely to return to his old habits of drinking excessively. It is not altogether clear what made him reduce his alcohol consumption. Nor has he acknowledged any insight into the affect his excessive alcohol consumption may have had on his children and stepchildren. As noted by Dr Lennings, given his previous violent conduct it would be advisable for the applicant to abstain form any alcohol consumption.

121 We note the allegations made by child A, child B and child OB were also made during the period where the applicant drank excessively.

122 While we make no finding that the allegations made by child A, child B and child OB are true, for the reasons we have given above, we are concerned about the applicant’s ongoing response to the allegations. In our opinion, this causes us some concern about the applicant’s insight into child protection issues that may arise in a child-related working environment.

123 Hence, on balance, having regard to the paramount consideration in s 4 of the WWC Act, we are satisfied on the information before us at the hearing of the applicant’s application, that the applicant poses a real and appreciable risk to the safety of children.

124 While we agree with the evidence of Dr Lennings that any concerns about risk of harm to the applicant’s grandson could be adequately addressed through the supervision of the Department of Family and Community Services, this would require the applicant being given a clearance that was either conditional or limited to the specific child-related work for which he has sought a clearance. The WWC Act does not vest the respondent with the power to issue a clearance with conditions or for a limited purpose. Hence, on administrative review the Tribunal equally has no power to do so.”

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

Grounds of appeal

43. The grounds of appeal as ultimately argued were as follows:

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

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

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

1. the weight it attributed to the evidence of prior representations concerning the allegations of abuse, and/or;

2. its determination that CGB poses a risk to the safety of children taking into account the information and submissions put forward by CGB.

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

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

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

“32 At the commencement of the hearing, the solicitor for the respondent again raised the issue as to the admissibility of the statements and records of interview of child A, child B and the older brother of child B. This issue was raised as the respondent had again failed to make these persons available for cross-examination. We accepted the material into evidence, on the basis they evidenced allegations that were made and not as to the truth of their content: Civil and Administrative Tribunal Act 2013, s 38(2), Children’s Guardian v BRL [2016] NSWSC 1206 and BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 and BKE (supra).”

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

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

“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”

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

“21 Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

22 In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw. There Dixon J said:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

…

24 In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

25 Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A), “an element of risk” or “an appreciable risk” (Marriage of M), “a real possibility” (B v B (Access), a “real risk” (Leveque v Leveque), and an “unacceptable risk”: In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

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

50. Beech-Jones J at [33] stated:

“33 The above passage from M v M  [[23]-[24]] contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.” (citations omitted)

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

1. in order for the Tribunal to find there is a real and appreciable risk to children, it is not necessary that the Tribunal make an affirmative finding that an allegation of abuse has been made out or proven on the balance of probabilities (having regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336);

2. it is open to the Tribunal to find that there is a real and appreciable risk to children even though the Tribunal may not be satisfied that an allegation of abuse has been made out, on the basis that the circumstances surrounding the alleged conduct mean that there is a risk to children, or that the existence of a risk has not been disproven;

3. there is no requirement that the respondent prove the truth of an allegation in order for the Tribunal to be satisfied there exists a real and appreciable risk to children; and

4. there may be circumstances surrounding an allegation which would persuade the Tribunal that there exists a real and appreciable risk to children or, more correctly, that the existence of a risk is not disproven.

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

“14 The first proposition is that, in assessing whether there is a risk of safety to the children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.

15 The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”. The task to be performed in the context of the legislation considered inM v M was described at 77 to be to:

“… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child’s welfare.

16 Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

17 A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left “open”, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.”

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

“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.”

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

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

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

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

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

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

1. It was necessary that the Tribunal correctly use the admitted evidence in determining what facts had been proved or had not been disproven in the first stage of the assessment process. The Tribunal could only use the evidence of the prior representations in a permissible manner when determining whether the existence of particular facts (ie, the abuse) had been proven or had not been disproven; (Plaintiff’s Submissions, [71]).

2. The Tribunal found that the existence of the fact of the abuse was not proven but that it was not satisfied that the “events as alleged by Child A, Child B and Child OB are a fabrication [and] should be discarded”. ([64], [81], [84] and [117]); (Plaintiff’s Submissions, [72])).

3. By asking itself whether there was a basis to conclude that the prior representations were a fabrication, the Tribunal was essentially asking itself whether the existence of the facts asserted had been disproven. That involved use of the prior representations for a hearsay purpose; (Plaintiff’s Submissions, [73]).

4. That type of inquiry could only be relevant to the first stage of the assessment process. If at the first stage the Tribunal were satisfied as to the existence or possible existence of the fact of the abuse, there would be no reason to ask itself at the second stage whether there was a reason to conclude that the prior representations were a fabrication. Likewise assuming the Tribunal was not satisfied as to the existence or possible existence of the fact of the abuse; (Plaintiff’s Submissions, [74]).

5. It appears that the Tribunal concluded that the existence of the fact of the abuse had not been disproven as it was not satisfied the prior representations were “a fabrication” ([64]); (Plaintiff’s Submissions, [75]).

6. That line of reasoning might be permissible if there was no limitation on the use to which the evidence of the prior representations could be used. However, in this case the Tribunal held that this evidence would only be used for a non hearsay purpose. It could use that evidence to prove the fact of the making of that prior representation, but it could not use it to prove the existence or possible existence of the facts asserted therein. Otherwise it would impermissibly be using non-hearsay evidence in a hearsay fashion; (Plaintiff’s Submissions, [76]).

7. As to the second stage of the assessment, a finding as to the existence of risk cannot be predicated alone on the basis of a finding that a person has made a prior representation alleging particular acts. That merely establishes the fact of the representation and not the existence or possible existence of the facts asserted; (Plaintiff’s Submissions, [77]) and

8. It is clear from the Tribunal’s remarks it impermissibly used the non hearsay evidence to determine that the existence of the fact of the abuse had not been disproven. The Tribunal either misdirected itself as to the applicable principles concerning the use of hearsay or non-hearsay evidence or applied incorrect principles about the same to the admitted evidence. (Plaintiff’s Submissions, [78]).

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

Conclusion

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

“59 The hearsay rule – exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

…”.

And s 60 of the Evidence Act reads:

“60 Exception: evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).

…”.

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

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

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

“29 In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the complainant and other witnesses cross examined (which was not going to be possible because the Children’s Guardian did not intend to call them) or at least reviewing transcript of cross examination conducted on some other occasion (of which there was none).

30 If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant's refusal to testify in 1999 and of the Children’s Guardian’s failure to call her in 2015 or 2016.

31 It would add nothing to the plaintiff’s case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.”

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

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

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

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

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

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

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

68. This ground of appeal discloses no error of law.

Ground 3 – Did the Tribunal provide sufficient reasons?

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

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

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

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

“99 The first is that the obligation to provide reasons is primarily directed to facilitating a party’s appeal rights such that if an appeal is limited to points of law the obligation to provide reasons for findings of fact is limited (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273A per Mahoney JA and 280G per McHugh JA). Thus, in Wingfoot at [55] the High Court explained that the reasons “must explain the actual path of reasoning” of the decision maker and must do so “in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.

100 The second is that an allegation of a failure to provide adequate reasons is not established by pointing to matters raised by a party that were said to be not addressed by the decision maker. Instead, as explained by Basten JA in Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [8] to [10], such complaints may involve a failure to afford procedural fairness, a failure to take into account relevant considerations or a constructive failure to exercise jurisdiction.

101 Third, where the ultimate conclusion of the decision maker involves an “evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance” (Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 at [46] per Basten JA (“Public Service Association v Secretary of the Treasury”).

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

“29 The approach to be adopted is stated [in Allianz Ltd v Kerr] at [53]. The obligation upon the assessor to give reasons is less than that imposed on courts. In particular, irrespective of whether it is said that the reasons disclose error of law or jurisdictional error, “the limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation.”

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

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

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

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

“it would add nothing to the plaintiff’s case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.”

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

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

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

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

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

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

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

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

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

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

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

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

“NCAT was obliged by s 30(1)(j) to “consider…any information” provided by the applicant in relation to the application. There are various formulations of what “consider” entails, but provisions such as s 30 that specify mandatory considerations are usually taken as requiring that they be “give[n] weight…as a fundamental element in making” the relevant determination…”

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

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

“To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) [of the Aboriginal and Torres Straight Island Heritage Protection Act 1984 (Cth)] speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear on the facts stated in them and the arguments put forward and to appreciate who is making them…”

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

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

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

“Moore: What you’re saying is look, there’s a risk but really it can be managed by the oversight of the department?

Lennings: Well, what I’m saying is that there’s – if there is a – if there is a perception of – of risk because the risk is a residual risk, that is, it’s a concern that given that, in my view, in the 1990s when this – this family were bringing up children, they behaved in a way which was exposing those children to domestic violence, and to excessive alcohol consumption and the difficulties that arises. Those risks are no longer apparent. But if there is a concern that these are residual risks, that they might somehow or other manifest themselves, that would easily be managed by monitoring the family by the Department of Family and Community Services but I’m not suggesting that they’re current risks that need to be managed.”

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

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

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

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

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

1. the evidence of the statements and records of interview of child A, child B and child OB were accepted into evidence “on the basis that they evidenced the allegations that were made and not as to the truth of their content” ([32]);

2. a caller notified the Department of Community Services (DOCS) (as it then was) that child A had fled the home she shared with CGB and AB and had made a disclosure alleging that CGB had sexually assaulted her in mid 1998 ([40]);

3. during an interview, child A made a further disclosure of having been sexually assaulted by CGB during the previous month ([41]);

4. when spoken to by the Joint Investigation Team of DOCS, child B did not make any disclosures of sexual abuse ([42]);

5. in August 2000, child A gave oral evidence and was cross examined by counsel for CGB at a committal hearing in relation to the charges concerning child A ([45]);

6. in early December 2000, child OB attended the local police station with child A and reported that six months earlier he had seen CGB have sex with child B ([46]);

7. subsequently, child B made a disclosure to police alleging that six months earlier CGB had indecently assaulted her in the laundry at the home she shared with CGB and AB ([46]);

8. in respect to child A’s allegations, the jury found that on the evidence before it the prosecution had failed to prove, beyond reasonable doubt, the acts the subject of the charges with respect to child A, and noted that a copy of the transcript of the criminal hearing was not available despite CGB having made enquiries about the transcript ([61]);

9. in respect to child B’s allegations, they have at no time been tested at a hearing before a court ([62]);

10. the fact that there was a finding of not guilty in respect to child A’s allegations does not mean that the events as alleged did not occur; similarly, the absence of a finding of guilt in respect of the charge involving child B does not mean that the events as alleged by child B did not occur ([62]);

11. having regard to the following matters, the Tribunal was not satisfied that the events as alleged by child A, child B and child OB did not occur ([64]):

1. CGB has at all times denied the allegations, said they were untrue and said he believed that Child A “made up the allegations … to justify her moving out at such a young age and continue her relationship with [name of new boyfriend]” ([65]);

2. CGB said that since the criminal proceedings were concluded, he and child A had rebuilt a good relationship and about a year after the trial, child A and her boyfriend returned to the home CGB shared with AB to live with them ([67]);

3. CGB said that during one of these visits, AB told him that child A’s boyfriend had told AB that child A had “made up the whole thing” ([68]);

4. CGB said that he and child A do not talk much about “that period” in their lives, they have tried putting those events behind them and had “moved on” with their lives, and child A’s four children regularly spent time with him ([68]);

5. CGB, however, had not seen child A for six to seven months ([69]);

6. CGB does not know why child B and child OB made the allegations against him in 2000 and he was “completely shocked” when the allegations were made ([70]);

7. CGB surmised from the fact that child B was “pretty close” with child A, that child B had made the allegations up “to try to add weight to [child A’s] allegations” ([70]);

8. AB said that at all times she believed the allegations made by child A and child B were untrue ([71]);

9. AB provided a description of the layout of the home and her routine and deposed that had the events as alleged occurred, she would have noticed or seen; AB’s evidence before the Tribunal was consistent with her evidence statements and record of interview at the time the allegations were made ([72]-[73]);

10. AB corroborated CGB’s assertion that AB had been told by child A’s boyfriend that child A’s allegation “wasn’t true” ([75]);

11. AB said that child A gave birth to her first child in 2009 and “until a few months ago, when [AB] told [child A] that she might have to come to Court, [they] had continued to have a good relationship” ([76]);

12. AB said that when she became aware of child B’s allegations, she confronted CGB and he denied the allegations; she asked child B if they were true and child B started crying, stated they were untrue and said that child OB had told child B to make up the allegations ([77]);

13. AB said that when she asked child OB as to whether it was true, child OB said it was true ([77]);

14. AB said that a week later at a party, child OB broke down crying and said that he was mistaken ([78]);

15. AB said that until recently she and CGB had a good relationship with child B, but that since she told child B that she may have to come to Court, child B had not contacted AB further ([79]);

16. CGB’s and AB’s evidence was that they have both sought to “move on” from what had occurred, they do not speak about it and they have not raised it with either child A or child B ([80]);

17. for CGB and AB, it is “as though nothing happened and the allegations were indeed a fabrication, Child A having been motivated to make the allegations so that she could live with her boyfriend and Child B being motivated to support her sister, Child A” ([80]);

18. while the Tribunal accepted CGB’s evidence and AB’s evidence that both child A and child B came back to live with them, the Tribunal opined that this does not mean that the allegations were a fabrication ([81]);

19. there was no reliable evidence of child A or child B having said to CGB or to AB, or to any other person, that they had fabricated the allegations ([81]);

20. both child A and child B participated in lengthy interviews with police and child A gave evidence at the committal hearing and was cross examined; she did not retract her allegations during this hearing and went on to give evidence at CGB’s trial, which occurred almost two years after the allegations were made, and there was no evidence that she retracted her allegations during the course of that trial ([81]);

21. in the absence of any contemporaneous record of AB’s conversation with child A’s boyfriend or any direct evidence from him for the purpose of the application before the Tribunal, the Tribunal was unable to place any weight on this aspect of AB’s evidence ([81]);

22. child B’s allegations were made several months after CGB was committed to stand trial in relation to child A’s allegations and there was no explanation as to why child B would make allegations of this kind to support her sister ([82]);

23. child B’s allegations were also corroborated in a statement child OB made to police ([82]);

24. in his statement to police, child OB said that later in the day on which he made the disclosure concerning child B’s allegations, AB said to him, in the presence of CGB, “[OB], that’s it, no more said, we have sorted everything out. I don’t want to go through this again.” ([82]);

25. child OB stated to police that after this nothing more was said about the incident and everything seemed to go back to normal but he went on to say that many times when CGB and AB were drinking, AB would say “stuff” like “Why did you say that about [child B] and [CGB]?” and child OB would respond to AB saying that it was not true what he had said and the truth of the matter was that he said this because he thought it would be easier for AB and child B, but he had told the truth when he said what he had seen in the laundry between CGB and child B ([83]);

26. aside from CGB’s conviction in 2003 for common assault of AB while he was intoxicated (CGB punched AB to the right side of her neck), in respect to which CGB pleaded guilty, there was no further report of CGB behaving violently towards AB or any other person (this against CGB’s convictions of assaulting AB in 1989 and 1990 for the purposes of the WWC Act, on one occasion while she was pregnant ([88], [94]-[95]));

27. there was a 28 and 30 year age difference between CGB and child A and child B respectively and both children were vulnerable to their stepfather, whom they believed they could trust ([90]-[91]);

28. the Tribunal accepted Dr Lennings’ evidence that the risk of CGB assaulting his grandson was low but considered that it was required to consider the likelihood of CGB’s reoffending in the context of CGB working in any child-related activity ([112]);

29. gave very little weight to the references CGB provided in support of his application as neither referee made any reference to his convictions or the allegations against him ([114]); and

30. the Tribunal reasoned as to the question of whether CGB poses a real and appreciable risk to the safety of children today at [117] to [125]. These paragraphs have been reproduced earlier in this judgment.

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

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

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

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

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

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

The Court orders that:

1. The appeal is dismissed.

(2)   The summons filed 1 December 2017 is dismissed.

(3)   The plaintiff is to pay the defendant’s costs on an ordinary basis.

I certify that this and the 44 preceding pages are a true copy of the reasons for judgment herein of the Honourable Associate Justice Harrison.

Dated: Thursday, 31 May 2018

Associate

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Amendments

01 June 2018 - Paras [28] and [58] Typographical errors

Decision last updated: 01 June 2018