CGR v Office of Children's Guardian

[2018] NSWSC 26

Supreme Court

New South Wales

Medium Neutral Citation:	CGR v Office of Children’s Guardian [2018] NSWSC 26
Hearing dates:	6 December 2017
Date of orders:	06 February 2018
Decision date:	06 February 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The Amended Summons is dismissed and the Applicant is to pay the Respondent’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – cancellation of working with children check clearance – where applicant’s understanding of child protection issues clouded by subjective judgment – whether applicant poses a real and appreciable risk to children – no error of law   CIVIL PROCEDURE – bias – application for disqualification of judge – whether reasonable apprehension of bias
Legislation Cited:	Child Protection (Working with Children) Act ss 3, 4, 15, 23(1), 30(1) Children and Young Persons Care and Protection Act 1998 (NSW) Ch 16A Civil and Administrative Tribunal Act 2013 (NSW) Sch 3 cl 17(1) Child Protection (Prohibited Employment) Act 1998 (NSW)
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Children’s Guardian v BQJ [2016] NSWSC 869 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fortune Food Manufacturer Pty Ltd v K Young Trading Pty Ltd [2010] NSWSC 407 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Category:	Principal judgment
Parties:	CGR (Plaintiff) Office of the Children’s Guardian (Defendant)
Representation:	Counsel: M Neville (Plaintiff) P D Herzfeld (Defendant)   Solicitors: Legal Aid (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2017/157624
Publication restriction:	Pursuant to the Court Supression and Non-Publication Orders Act 2010 (NSW) s 8(1)(a) and (d), the name of the applicant, the name of any victim or child referred to in the material before the Court, the name of any other person that might identify the name of the applicant or the name of a victim or child, including a reference to any information, picture or other material that identifies such a person or is likely to lead to the identification of such a person is not to be published.
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2017] NSWCATAD 129 Date of Decision: 27 April 2017 Before: S Higgins, Principal MemberS Davison, General Member File Number(s): 1610199

Judgment

1. By amended summons dated 6 December 2017, the Plaintiff, CGR, appeals from a decision of the Civil and Administrative Tribunal of New South Wales of 27 April 2017.

2. That decision was the result of an application for review of a decision made by the Children’s Guardian on 7 March 2016, cancelling CGR’s working with children clearance. The Tribunal determined that the decision to cancel CGR’s clearance should remain in place.

3. At the commencement of the hearing, pseudonym orders were made for CGR and her relatives to avoid disclosure of the identities of children who have made (or been associated with) allegations of sexual abuse.

4. The appeal to this court is confined to an appeal on a question of law (Civil and Administrative Tribunal Act 2013 (NSW) Sch 3 cl 17(1)). There are three grounds of appeal. First, an argument that a particular finding made was erroneous; second, that there was error in providing inadequate reasons for a particular finding; and third, Wednesbury unreasonableness in the finding that CGR poses a risk to the safety of children.

5. Counsel for the Defendant argued that the appeal should be dismissed because each of the grounds were in substance cavilling with the Tribunal’s findings of fact and no error of law had been identified.

Application for disqualification for apprehended bias

6. Before argument commenced, I raised with the parties that I was acquainted with the principal member of the Tribunal. The principal member is a barrister with whom I had a professional friendship and was a member of the same Chambers in the 1990’s for about five years. The matter was raised for abundant caution.

7. CGR instructed her counsel to make an application that the hearing be vacated, the matter be adjourned, and a fresh hearing date be allocated before a different judge. It was argued that CGR was “apprehensive that the social relationship that existed between [myself] and [Principal Member] Higgins may be perceived to perhaps cause a reasonable and fair minded layperson to apprehend that an impartial mind may not be brought to the application”.

8. Counsel for CGR noted that Principal Member Higgins was not the only member of the Tribunal, however argued that as the legal member she “bore a lot of the responsibility for the discussion between the Tribunal and the various witnesses in relation to legal issues” and “she also drove a lot of the Tribunal’s legal thinking in relation to the matter”. It was submitted that given the appeal was one that was not a merits review but was addressing whether there was a question of law arising, it was argued that Principal Member Higgins “has played a significant role in the conduct of the proceedings before the Tribunal and the decision which gives rise to those proceedings”.

9. For my assistance, counsel for the Defendant raised the following legal principles for my consideration. First, the test is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6]. An allegation of apprehended bias has to be firmly established (Rv Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553-554; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 262; and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at 305, 313-314) and I ought not disqualify myself unless substantial grounds are established: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 233 [36].

10. There is a requirement that the fair minded observer will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial, and the prejudicial: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [12].

11. I am of the view that my past association with Tribunal Member Higgins is not sufficient to engage the principles for reasonable apprehension of bias, and in those circumstances I declined to disqualify myself from hearing the proceedings.

Factual background and relevant statutory scheme

12. The Defendant is required to cancel a person’s working with children clearance if it is satisfied that such a person poses a risk to the safety of children: Section 23(1) of the Child Protection (Working With Children) Act 2012 (NSW).

13. In determining an application for review, the Tribunal is required to consider the matters set out in s 30(1) of the Child Protection (Working With Children) Act:

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 the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d)   the age of each victim of any relevant offence or 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 offences or conduct and the impact on children of any such repetition,

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

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

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

14. Sections 3 and 4 of the Act provide:

3   Objects 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.

4    Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

15. CGR is a woman living in country New South Wales. She has for many years cared for children in her home as an out of home carer. In December 2012, three children of CGR’s brother came to stay with her including two boys, NA and NB, who were aged 7 and 6 years respectively at the time. In January 2013, NA and NB were interviewed by officers of the Department of Family and Community Services (“FACS”), during which NA and NB said that whilst staying at CGR’s home, CGR’s younger brother YBA, who was 15 at the time, had been “dirty” with NA.

16. CGR maintained that NB did not tell her about this and that the first she learned of it was after FACS officers were provided with that information by NA and NB in January 2013.

17. The Reportable Conduct Unit of FACS issued an investigation report concerning an allegation that CGR had failed to respond to information indicating actual or potential abuse. The report concluded that the allegation was not sustained and on that basis, notification to the Defendant was not required.

18. In December 2014, the Defendant issued CGR with a working with children check clearance. On 2 October 2015, the New South Wales Ombudsman sent the Defendant a notification pursuant to Ch 16A of the Children and Young Persons Care and Protection Act 1998 (NSW). This notification led to the Defendant conducting a risk assessment pursuant to s 15 of the Child Protection (Working with Children) Act. Following the risk assessment, the Defendant exercised its power pursuant to s 23(1) of the Child Protection (Working with Children) Act to cancel CGR’s clearance on the basis that it was satisfied that CGR posed a risk to the safety of children.

19. This led to the Application for review by the Tribunal which was determined against CGR and is the subject of this appeal.

Relevant principles and scope of the appeal

20. Counsel agree as to the principles relevant to this appeal with the gloss that the Defendant submitted that the focus of this Court’s enquiries is “strictly circumscribed”.

21. Counsel for CGR submitted, consistently with the principles set out in Children’s Guardian v BQJ [2016] NSWSC 869 by Button J, as follows:

1. The Supreme Court does not engage in a merits review of the decision of the tribunal;

2. The Supreme Court does not engage in a de novo appeal with regard to the decision of the tribunal;

3. Neither an error of fact nor an error of mixed fact and law committed by the Tribunal would lead to an appeal being upheld;

4. The Appellant must show that a question of law that was explicitly or implicitly determined by the Tribunal was determined erroneously; and

5. Failure to give adequate reasons is itself an error of law.

22. Counsel for CGR helpfully contextualised CGR’s arguments as to what comprised errors of law by the Tribunal by reference to the principles set out by Davies J in Fortune Food Manufacturer Pty Ltd v K Young Trading Pty Ltd [2010] NSWSC 407 where consideration and summary of the relevant authorities was set out by his Honour at [25]-[31]. The salient points extracted by counsel for CGR were as follows:

1. There are three stages typically followed by a court or tribunal in determining a matter: Fact finding, rule stating, and rule application – see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Kirby J at 150.

2. The most typical error of law occurs at the rule stating stage, however it may also occur in the findings of facts. If a court or tribunal treats as having occurred what in truth is not shown by the evidence to have occurred.

3. An error of law may occur at the third stage in the application of the law to the facts.

4. There is no error of law in simply making a wrong finding of fact.

5. The finding of the primary facts in a case does not amount to a question of law unless it can be shown that there is no evidence of a primary fact and that the impugned fact is crucial to the decision. No error occurs because the judge prefers one version of the evidence to another or one set of inferences to another, even if the evidence is strongly one way.

6. There is no error of law even if the reasoning process by which the Tribunal reaches its conclusion of fact is demonstrably unsound or illogical (citing R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [12]-[14]).

7. An error of law may include:

1. A finding made where there is no evidence to support it or an inference drawn from fact that is not reasonably available on those facts;

2. A finding that no person acting judicially or properly instructed as to relevant law could have made; and

3. A court having misdirected itself in law.

23. Counsel for CGR submitted that the errors that comprised the appeal grounds were errors made at the “rule application” phase.

CGR’s grounds of appeal

Ground 1 – The Tribunal erred in making a finding that CGR has not acted protectively to children in her care contrary to three identified findings made in the Tribunal’s decision

24. CGR asserted that there was a finding made implicitly in the Tribunal’s decision (at [97]-[98]) that CGR had not acted protectively to children in her care. She argued that this “implied finding” was contrary to three other findings the Tribunal made. This meant that the asserted finding that CGR had not acted protectively could not be sustained. The three other findings were that there was no evidence that CGR was aware of or failed to report alleged sexual abuse of NA while he was in her care, that CGR did take steps to ensure children were safe when she was present, and an absence of a finding that CGR intentionally sought to influence a child’s evidence.

25. As pointed out by counsel for the Defendant in its written and oral submissions, there are a number of fundamental problems with this ground of appeal.

26. First, the ground does not identify a question of law. At its highest, the complaint is about the weight given by the Tribunal to competing evidence and findings, namely the weight it gave to its determinative finding regarding CGR’s lack of understanding of her role as a carer as opposed to other factual findings it made on the evidence available to it. This does not give rise to a question of law (see Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 at [103]).

27. The second problem is that there was no such finding in the terms alleged in ground 1 actually made by the Tribunal. Paragraphs [97] and [98] are reproduced below:

[97]   For the reasons set out above, however, we found the applicant’s understanding of child protection issues in the situation she was in during 2012 to 2014 to be clouded by a strong loyalty to her immediate family and a general lack of understanding about issues concerning the protection of vulnerable children in care. Hence, her understanding of her role as a person authorised to provide out-of-home care for vulnerable children was lacking. We found this lack of understanding to be indicative of a lack of the protective qualities necessary for persons engaged in child-related work and hence she posed a risk to the safety of the children placed in her care. The question is whether she continues to pose a risk to the safety of children today if her clearance were restored to her. She says she does not pose a risk and Ms Hare, in her assessment of the applicant, has expressed a similar view.

[98]   After considering all relevant matters, we have found the applicant continues to pose that risk today. We have made that finding primarily because the applicant continues to hold the very strong views that she has always held and has failed demonstrate that she has reflected on her conduct in any way, especially in her dealings with child NA after her brother was charged. Hence, we are not persuaded that a similar situation, to that which applied in 2012 to 2014, would not re-occur if the applicant’s clearance were to be restored to her. In these circumstances, we must find that the decision of the respondent to cancel the applicant’s clearance is the correct and preferable decision and should be affirmed.

28. It is clear that the focus of [97] and [98] of the decision was the lack of understanding about issues concerning the protections of vulnerable children and accordingly, the demonstration by CGR of a lack of the protective qualities necessary for persons engaged in child related work. Paragraph [98] deals with the consideration that the risk is still present because of the failure by CGR to reflect on her conduct and understand the need to protect a vulnerable child or children as opposed to holding strong views about her perception of what did or did not occur, or could or could not have occurred.

29. The focus of [97] and [98] is not limited to those particular children and her relationship with them, but the lack of understanding evidenced by CGR’s behaviour and the results of the investigation findings on interview with her of the lack of understanding remaining undisturbed by her experience.

30. Leading up to those paragraphs was a careful analysis of the evidence that provided reasons for the Tribunal’s conclusion. CGR submitted that the Tribunal has not taken into account sufficiently the good things CGR did and the conduct that evidenced an understanding of child protection. It was submitted that the Tribunal did not fully appreciate other child protection steps that CGR took in respect of other alleged sexual assaults and failed to take them into account. However, in my view, those complaints are not warranted and in any event do not undercut the Tribunal’s ultimate conclusion.

31. I accept the Defendant’s submissions that in [97] and [98], the Tribunal was simply identifying and articulating the risk posed by CGR which led to the concern and the obligation to cancel CGR’s working with children check pursuant to considerations set out in s 30(1). I accept that the Tribunal carefully addressed each of the considerations identified in s 30(1) by reference to the evidence at [53]-[93]. The chain of reasoning set out at [97] and [98] does not set out any finding that CGR had never acted protectively to children in her care in the past or that she had never acted protectively in some respects regarding the children involved in this case. The analysis was directed to an identified risk associated with CGR’s lack of understanding of her role, the lack of the necessary protective qualities for a person engaged in child related work and the consequent risk posed to the safety of children in her care as a result of those matters.

28. As the defendant submitted, a further problem with this ground is the logical mismatch between the matters identified in paragraphs (a)-(c) of appeal ground 1 and the findings made in [97] and [98]. The positive findings identified in ground 1 were:

a.   There is no evidence that the Applicant was aware of and failed to report alleged sexual abuse of child NA while he was in the Applicant’s care (at [54])

b.   The Applicant took steps to ensure the children were safe when she was present (at [60]).

c.   No finding that the Applicant intentionally sought to influence a child’s evidence (at [66]).

33. As the defendant submitted, those findings (while important) do not logically bear upon the source of risk that was determinative for the Tribunal’s conclusions set out at [97]-[98] of its decision. There was no inconsistency between the Tribunal’s ultimate conclusion and the findings set out in paragraphs (a)-(c) of appeal ground 1.

Ground 2 – Adequacy of reasons

34. This ground focussed on the phraseology “a real and appreciable risk to children”. In developing this argument, emphasis was placed upon the statement of principle set out at [42] in Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476. In that decision, Young CJ in Eq was dealing with the construction of s 9 of the precursor to the current legislation (the Child Protection (Prohibited Employment) Act 1998 (NSW)) pursuant to which an assessment of risk to the safety of children needed to be analysed. Relevantly, in [42], his Honour addressed the question of excluding fanciful or theoretical risks where he says:

“…but what one is looking for is a sense of a risk that is greater than the risk of an adult preying on a child. One however must link the word risk with the words that follow, namely, to the safety of children.”

35. Counsel for CGR argued that the safety of children generally was the issue and CGR had been judged only in relation to a specific circumstance that was unlikely ever to reoccur. The findings of the Tribunal in respect of real and appreciable risk were erroneous because in making that finding, they had not properly considered or given appropriate weight to evidence of CGR’s actions which showed protective capacity. It was also submitted that the Tribunal did not sufficiently take into account that the “constellation of circumstances” that led to this review were highly specific and unlikely to arise again. It was also submitted that the Tribunal failed to identify the manner in which the risk that arose in these circumstances could ever be extrapolated to children “generally” as opposed to the very specific children who were in her care at the relevant time.

36. This was further developed in oral argument. It was argued that when the legislative scheme was properly taken into account, the issue to which the Tribunal should have directed its mind (and did not) was not to potential risk to a confined class of children such as those from CGR’s family, but to look more widely as to CGR’s risk to children generally. It was argued that the Tribunal failed to identify any such risk to children generally. This was an error of law. They ought not to have found therefore that the risk posed by CGR to children was real and appreciable.

37. Counsel for CGR argued that part of the inadequacy of reasons included the failure by the Tribunal to make any reference at all to CGR’s evidence that she attended FACS to make a personal report regarding a particular instance of child abuse of a relative that had been reported to her. It was argued that [10] of the Tribunal’s decision simply referred to that incident as resulting in a home visit after the Department received a report from a correctional centre about potential child abuse. No finding was made in respect of the evidence CGR gave that she in fact attended the office of FACS to ensure reporting was complete. No finding was made demonstrating this positive action had been identified and taken into account.

38. Instead, in [11] of the Tribunal’s decision, reference is made to CGR attending FACS to make a report in relation to another instance of child abuse involving one of her nephews.

39. In respect of both these reports, none of the children involved are relevant to the current proceedings. CGR argued that the Tribunal’s determination that CGR was a real and appreciable risk was not supported by adequate reasons; including that the Tribunal ignored evidence that suggested to the contrary that she was not a risk and that she had demonstrated that by her other actions.

40. Counsel for the Defendant submitted that this was not a valid complaint. Citing Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [55]-[56], the Defendant’s counsel argued that it is not necessary for the Tribunal to refer to every piece of evidence and to deal with every contention made:

[55]   The statement of reasons must explain the actual path of reasoning by which the [decision-maker] in fact arrived at the option the [decision-maker] in fact formed on the … question referred to it. … The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. A [decision-maker] explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

41. This is the standard by which ground 2 needs to be assessed. The Tribunal is not a court, and its reasons should not be scrutinised with an eye keenly attuned to error. In any event, what CGR did on other occasions to report allegations of sexual abuse were not germane to the Tribunal’s path of reasoning here, because its reasoning turned on the fact that in its view, CGR would not countenance the possibility that a particular child, in this case her brother, had sexually interfered with the complainant, and that was the issue that led to the concern regarding a mindset that exposed children to future risk.

42. It was clear in its reasons that the Tribunal held the view that the risk remained.

43. The conclusion reasoned to finality through [97]-[98] was a finding that CGR lacked the protective qualities necessary as a result of her lack of understanding of her role as a person authorised to provide out of home care. There is nothing illogical or inadequate in the reasoning for this finding and the resultant risk determined. Ground 2 also fails.

Ground 3 – Legal unreasonableness

44. Counsel for CGR candidly acknowledged that if the appeal fails on grounds 1 and 2, ground 3, “legal reasonableness”, relies on this court’s findings on grounds 1 and 2 and would fall with those grounds.

45. Given that I reject both grounds 1 and 2, ground 3 also fails. In determining this ground against CGR, I also rely upon the statements of French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [30] (see similarly at [66]):

“The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.”

46. The conclusions which the Tribunal reached in paragraphs [97]-[98] of its decision were plainly open to it on the evidence before it. The process of reasoning which led to those conclusions is evident and intelligible.

Conclusion

47. The Amended Summons is dismissed and the Applicant is to pay the Respondent’s costs.

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Decision last updated: 09 February 2018