Children's Guardian v CXZ

[2019] NSWSC 1083

Supreme Court

New South Wales

Medium Neutral Citation:	Children’s Guardian v CXZ [2019] NSWSC 1083
Hearing dates:	16 November 2018
Date of orders:	22 August 2019
Decision date:	22 August 2019
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Children’s Guardian shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment.
Catchwords:	ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Clearance – principles to be applied by Tribunal in considering risk – whether failure to apply principles in M v M – whether failure to properly consider risk in relation to allegations – whether failure to assess cumulative weight of allegations – whether inadequate reasons provided by the Tribunal – directions
Legislation Cited:	Administrative Decisions Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Family Court Act 1975 (Cth)
Cases Cited:	A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 BVT v Office of Children’s Guardian [2016] NSWSC 1169 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 CGD v Children’s Guardian [2018] NSWSC 776 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v BRL [2016] NSWSC 1206 CLD v Children’s Guardian [2017] NSWSC 936 CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348 Commission for Children and Young People v V (2003) 56 NSWLR 476; [2002] NSWSC 949 Commissioner for Children and Young Persons v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2018] NSWCATAD 36 DAR v Children’s Guardian [2018] NSWSC 942 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 House v King (1936) 55 CLR 499; [1936] HCA 40 M v M (1988) 166 CLR 69; [1988] HCA 68 McGinn v Ashfield Council [2012] NSWCA 238 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Category:	Principal judgment
Parties:	Children’s Guardian (Plaintiff) CXZ (Defendant)
Representation:	Counsel: P Singleton with L Beange (Plaintiff) L Andelman (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Craig Milne & Company (Defendant)
File Number(s):	2018/82822
Publication restriction:	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 that Act, the name and address of the defendant and any child referred to in the evidence before the Supreme Court and the name and address of any other person whose publication would identify their names and addresses not be published without leave of the Court and that the defendant be referred to as “CXZ”.
Decision under appeal	Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 36 Date of Decision: 02 December 2016 Before: S Leal, Senior Member; R Royer, General Member File Number(s): 2017/23607

Judgment

1. HIS HONOUR: On 1 October 2014, the defendant (“CXZ”) applied for a working with children check clearance pursuant to s 13(1) of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The defendant made the application for the purposes of supporting his youngest child’s sporting activities and in order to provide an opportunity for working as a security officer in hospitals.

2. The pseudonym used for the defendant resulted from an order made by the Court under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) upon the ground found in s 8(1)(e) of that Act.

3. By s 8 of the Act, it is an offence for a person to work in child-related employment unless he or she has a “clearance” or has a pending application for one and is not subject to an “interim bar”.

4. Once an application is made the provisions of Div 3 of Pt 3 of the Act were applicable, relevantly, ss 14 and 15(1)-(3) provide as follows:

14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

5. When CXZ applied for a “clearance”, the Children’s Guardian erroneously determined that it was required to conduct a risk assessment pursuant to s 14 of the Act because Sch 1 of the Act applied to CXZ as proceedings had been commenced against him for an offence of murder of an adult in 1996. However, as at 1 October 2014, Sch 1 of the Act did not apply to CXZ as the offence was not listed in Sch 1.

6. Murder was, at that time, a disqualifying offence in cl (1)(a) of Sch 2. However, CXZ was acquitted of that charge in 1997.

7. While CXZ did not dispute that the Children’s Guardian had discretionary powers in s 15 of the Act to conduct a risk assessment of CXZ, he contended the relevance of the fact that CXZ was not subject to those assessment requirements arose in two ways, the first of which remains relevant. It was contended there was no onus on CXZ in the Civil and Administrative Tribunal of NSW (“the Tribunal”) to demonstrate that he posed a risk to children as he proceeded as a person who had been refused a clearance within the meaning of s 27(1) of the Act. Section 28(7) of the Act was not applicable to him (it was common ground that the matter proceeded before the Tribunal under s 27 of the Act).

8. On 2 December 2016, the Children’s Guardian by Director, Mr David Reeves refused to grant a working with children check clearance pursuant to s 20(1) of the Act. That decision was made appropriately pursuant to s 18(2) of the Act.

9. Section 18 of the Act provides as follows:

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) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(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.

10. The Children’s Guardian gave reasons as required by s 20(3) of the Act.

11. By s 27(1) of the Act, if an application for a clearance is refused then the applicant may apply to the Tribunal (“the Tribunal”) for an administrative review of the decision. By s 63 of the Administrative Decisions Act 1997 (NSW) (“ADR Act”), the Tribunal is to, inter alia, “decide what the correct and preferable decision is having regard to the material then before it”.

12. The defendant made such an application on 3 January 2017. By a decision given by S Leal, Senior Member and R Royer, General Member, of the Administrative and Equal Opportunity Division of the Tribunal dated 4 February 2018, the Tribunal ordered that the decision of the Children’s Guardian of 2 December 2016 be set aside and in lieu thereof that CXZ be granted a working with children check clearance: CXZ v Children’s Guardian [2018] NSWCATAD 36 (“CXZ No 1”).

13. Clause 17(1)(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) provides that a decision made by the Tribunal for the purposes of the Act is subject to appeal to this Court “on a question of law”.

14. Such an appeal must be predicated upon “an identified question of law” or “an erroneous answer in respect of a question of law”: see B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [2], [75] (per Allsop P) and [150] (per Basten JA).

15. Reference may be made to the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 (“BKE”) at [35] as follows:

[35] Provisions conferring appeals on a “question of law” are said to generally be “concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal” (Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15]; Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 at [71]). In Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 (“Lo”) at [10] and [49] to [50] Basten JA and Macfarlan JA respectively treated an error of law as synonymous with a matter that can be raised in an appeal on a question of law. Beazley P agreed with both of their Honours (at [1]). This appears to be the logical consequence of the discussion in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [89] to [91] (per Hayne, Heydon, Crennan and Kiefel JJ).

THE APPEAL

16. By a summons commencing an appeal filed 14 March 2018, the Children’s Guardian brought an appeal from the decision of the Tribunal in CXZ No 1. Orders were sought setting aside that decision and remitting the proceedings to the Tribunal to be determined in accordance with law.

Grounds of Appeal

17. There were two grounds of appeal. The primary ground of appeal was stated as follows:

1. The Tribunal erred at law by failing to apply M v M (1988) 166 CLR 69 (or failing to apply it properly) in that:

(a) in respect of five particular allegations (namely those addressed at paragraphs [49], [51], [53], [64] and [65] of the Tribunal's reasons for decision) it failed to address whether or not the allegations were groundless;

(b) if the Tribunal did not find the said allegations to be groundless – it failed to evaluate them and take them into account when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the Child Protection (Working with Children) Act 2012; and

(c) in respect of all the allegations and evidence against the defendant that the Tribunal did not reject or find to warrant no weight, the Tribunal failed to evaluate and take into account the totality of the matters when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2).

18. The second and alternative ground of appeal was in the following terms:

2. In the alternative: The Tribunal erred at law by failing to give adequate reasons for its decision, in that:

(a) it failed to reveal whether or not it found the five allegations mentioned at paragraphs [49], [51], [53], [64] and [65] of its reasons for decision to be groundless;

(b) if it found any of the said allegations to be groundless – it failed to give reasons for any such finding;

(c) it failed to reveal whether or not it took account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the Child Protection (Working with Children) Act 2012;

(d) if it did not take account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) – it failed to give reasons for not doing so;

(e) it failed to reveal whether or not, when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2), it took account of the totality of the allegations against the defendant that it did not reject or find to be of no weight; and

(f) if it did not take account of the said totality when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) – it failed to give reasons for not doing so.

The Notice of Contention

19. The defendant filed a Notice of Contention on 4 October 2018 (“the Contention”). No issue was taken as to the time of the filing of the Contention.

20. The details of the Contention were in the following terms:

The defendant contends that the decision of the New South Wales Civil and Administrative Tribunal in CXZ v Children's Guardian [2018] NSWCAT 36 should be affirmed on grounds other than those relied on by the Tribunal below, but does not seek a discharge or variation of any part of the decision.

21. The grounds for the Contention were as follows:

1. The Tribunal should have admitted the documents referred to below into evidence but only for the limited purpose that the allegations they contained had been made.

a. The Apprehended Violence Order made in 1995 referred to in paragraphs [49] and [51] of the Decision,

b. The Apprehended Violence Order made in 2000 referred to in paragraph [53] of the Decision.

c. The affidavit by the applicant's sister in law sworn in 2006 referred to in paragraph [64] of the Decision.

d. The affidavit sworn in 2004 referred to in paragraph [65] of the Decision.

THE LEGISLATIVE SCHEME

22. The Act, as its short title suggests, is protective legislation. It is calculated to protect children from the risk of harm that may be posed by a person working with them.

Object

23. Section 3 specifies the objects of the Act as follows:

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.

Paramount Consideration

24. Section 4 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.

Part 3 – Working with Children Check Clearances

25. Part 3 of the Act concerns the grant or refusal of clearances.

26. Division 3 of Pt 3 concerns the risk assessment of applicants for clearance. Section 15(3) specifies the matters the Children’s Guardian may consider in undertaking a risk assessment. It raises similar considerations to those found in s 30.

27. Division 4 of Pt 3 concerns application for clearances and incorporates the aforementioned s 18.

28. The meaning of “risk” has been considered in many contexts. Relevantly, in Commission for Children and Young People v V (2003) 56 NSWLR 476; [2002] NSWSC 949 (“V”), in the context of considering the previous regime under the Child Protection (Prohibited Employment) Act 1998 (NSW), Young CJ in Eq held (at [42]):

[42] …one does not define risk as meaning minimal risk. One would in any case … exclude fanciful or theoretical risks, but 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.

(Young CJ in Eq considered a similar provision found in s 9 of the Child Protection (Prohibited Employment) Act 1998 (NSW)).

29. Although the Act has since been amended to provide a definition of “risk” that is similar to what Young CJ in Eq said in V (see s 5B), at the time of the Tribunal’s decision in this case the Act did not define “risk” and V was authority as to its meaning.

Part 4 – Reviews and Appeals

30. Part 4 deals with reviews and appeals.

31. Section 27(1) enables an application for review by persons who have had an application for children check clearance refused.

32. Section 28 concerns disqualified and ineligible persons. The presumption in s 28(7) is not applicable in this matter.

33. Section 30 applies to the review under s 27. That provision is in the following terms:

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 criminal history and the conduct of the person since the matters occurred,

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

(i1) any order of a court or tribunal that is in force in relation to the person,

(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.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

THE TRIBUNAL’S DECISION

34. At the outset, the Tribunal referred to a risk assessment undertaken by the Children’s Guardian as follows (CXZ No 1 at [2]):

[2] After having conducted a risk assessment for the applicant, the Children’s Guardian, who is the respondent in this matter, refused to grant him such a clearance. The trigger for the risk assessment was a murder charge laid against the applicant in 1996, for which he was acquitted the following year.

35. The Tribunal returned to the issue of that charge under the heading “Acquittals for CXZ” with respect to “1996 charges” later in its reasons for decision.

35. The Tribunal next discussed “Legal Principles” which included the following discussion (at [12]-[14]):

[12] The jurisdiction of the Tribunal under s 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

[13] In considering whether an applicant poses a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38].

[14] In Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42], Young CJ in Eq (as he then was) said:

42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but 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".

37. The Tribunal then posed the issues which it considered were raised in the proceedings as follows (CXZ No 1 at [18]):

[18] The question for the Tribunal is whether the applicant poses a risk to the safety of children, particularly in light of

(a) his criminal record;

(b) charges laid against him;

(c) domestic disputes; and

(d) his work history as a security officer.

38. The Children’s Guardian accepted this general statement of issues was correct.

39. There was then given a description of evidence before the Tribunal in the following terms (at [19]):

[19] There was a large amount of written material tendered in this matter. Oral evidence was given to the Tribunal by the applicant and the psychiatrists, Dr Jones and Dr Allnutt.

40. As the Children’s Guardian pointed out, there was no objection by either party as to the receipt of this material. Nor was there a request for persons for whom statements of evidence had been adduced, to attend proceedings for cross-examination.

41. The Tribunal nextly turned to the criminal record for CXZ, which was set out under two subheadings: “1995 offences” and “No conviction recorded”. The Tribunal described both matters as being over 20 years old and not involving children. It was on that basis the Tribunal gave them “little weight” in “assessing the applicant’s current risk to children”.

42. The Tribunal then addressed what were described as “1996 charges” and “2009 charges” under the heading “Acquittals for CXZ”. As to the former of those topics the Tribunal stated (at [26]-[28]):

[26] As a young man, the applicant was charged with both the murder of his stepmother’s partner and with malicious damage to his property by fire. The charges were dismissed at committal for lack of evidence. Some years later, the applicant told the police about his involvement in the death of his stepmother’s partner. The applicant was found not guilty of murder, manslaughter or arson, by reason that he was acting as an automaton. It is not disputed that the killing of his stepmother’s partner occurred almost thirty years ago, at the behest of the applicant’s father and following a long history of sustained abuse of the applicant by his father.

[27] In oral evidence before the Tribunal, the applicant denied that he would ever act in such a way again, telling the Tribunal that ‘no-one will ever have the control over me that my father had over me.’

[28] In determining the weight to be given to these events, we have taken into account that almost three decades have since elapsed. We have also considered the findings of the psychiatrists, Dr Jones and Dr Allnutt, who have each prepared reports for the applicant, details of which are set out below. We accept the expert evidence of the psychiatrists that the applicant’s automatism was caused by an external factor, namely his father who was now dead, and that the event, which occurred thirty years ago, is historical and is not a relevant factor in assessing whether the applicant poses a current risk to the safety of children.

43. The Tribunal then considered CXZ’s “history in security work”.

44. Under the heading, “CXZ’s family history and domestic disputes”, the Tribunal traversed a number of considerations which attracted significant attention in submissions on this appeal. The Tribunal considered the broad issues raised by this heading under a number of subheadings or sections, which are set out below:

1. CXZ’s relationship with his two wives (untitled);

2. “Apprehended Violence Orders” (“AVOs”);

3. “Family and Community Services material”;

4. “Family law documents”;

5. “2005 incident with daughter”;

6. “2008 report of son running away”;

7. “Narrative” (of CXZ’s early life); and

8. “[CXZ] and relationship with siblings”.

45. The findings in the first, second and fourth sections attracted significant attention and will be set out seriatim.

46. By the first section, CXZ’s relationship with his two wives, the Tribunal gave consideration to evidence as to CXZ’s two wives and acts of violence in that respect. The Tribunal’s findings were as follows (at [41]-[49]):

[41] The applicant has children with two former partners. To his first wife, he has two adult daughters. To his second wife, from whom he separated in 2002, he has three boys, the youngest of whom is 17 years old. We accept the applicant’s evidence that he has been the primary carer of the two older boys since 2002 and the youngest boy since 2015.

[42] His first wife alleged that the applicant had been violent to her. This is stated in Family and Community Services (FACS) notes from the mid 1990s which also state that “none of what she said appeared to ‘ring true’; that she would tell one worker one thing then another something else” and that she was seen to have “very little parental attachment or responsibility taken for the children.”

[43] In oral evidence before the Tribunal, the applicant agreed that he had once slapped his first wife across the face.

[44] In an affidavit prepared for these proceedings, the applicant spoke of the dysfunctional nature of his second marriage and the fact that he and his second wife would drink and take illicit drugs together. He denied ever having taken illicit drugs around their children and confirmed that he had not used illicit drugs for over ten years.

[45] He stated that:

I later discovered that during our periods of separation [my second wife] had contacted the police and made false allegations against me of assault, harassment, intimidation etc. I did not know about many of these allegations at the time and only found out about many of them either during the family law proceedings or as a consequence of the documentation obtained by the Children’s Guardian.

[46] The applicant denies ever having hit his second wife:

I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional. However, [she] was always the aggressor. Throughout our relationship [she] was violent, controlling, aggressive and erratic…I have never punched her as she has claimed. My actions were always done in self-defence in response to [her] violence with the least amount of physical force possible…I cannot say what [her] motivations were for fabricating these allegations of violence against me other than that during and immediately after arguments she would be in a blind rage, after I left she contacted the police and made these allegations against me. [Her] behaviour was often erratic and irrational. Also, after separation we were involved in highly contentious child custody proceedings and she was seeking the full time custody of all three of our children.

[47] In oral evidence before the Tribunal the applicant reiterated his statement that he had not hit his second wife but would simply defend himself when getting hit. No material was provided to dispute the applicant’s evidence in this regard.

[48] The applicant gave evidence that he is now single having separated from his partner of three years, who he described her as a quiet, gentle woman who brought out the best in him. He denied any violence in the relationship.

[49] On the evidence before us, we accept the applicant’s admission that he slapped his first wife. We also accept that the applicant’s second marriage was volatile. The allegations that the applicant was physically violent towards his second wife are serious ones. In light of the applicant’s evidence denying the allegations and the absence of evidence from the applicant’s second wife, we cannot be satisfied on the balance of probabilities that the applicant was physically violent towards her.

47. Under the second section, the Tribunal dealt with two AVOs concerning CXZ (namely, the “1995 AVO” and the “2000 AVO”), as well as several entries recorded on the Computerised Operational Policing System database (described by the Tribunal as “COPS event records”) (CXZ No 1 at [50]-[55]). Those considerations are extracted below::

[50] A final apprehended violence order (AVO) was issued against the applicant in 1995. In his statement, the applicant clarified that the AVO had been made for the protection of his first wife, by consent and without admissions, following allegations by his first wife that the applicant had made threats against her and her then partner. The applicant explained that he had been concerned that the partner had been sexually assaulting his daughters and that ‘the 1995 AVO arose in circumstances where I was trying to protect my children from harm.’

[51] Given that the AVO was made by consent and without admissions and that we have been unable to test the veracity of the complainant’s version, we cannot make any positive findings about the alleged conduct of the applicant.

[52] In 2000, an interim apprehended violence order was issued against the applicant for the protection of the applicant’s second wife but, according to the applicant’s statement, did not proceed to a full order. According to court papers before the Tribunal, however, an AVO was issued against the applicant on 22 June 2000 for a period of twelve months.

[53] Given the lack of evidence from the complainant and the lack of details as to the circumstances of the AVO being granted, we cannot make any positive findings about the alleged conduct of the applicant.

[54] Several COPS events records dating between 1999 and 2001 relate alleged incidents of violent behaviour by the applicant towards his second wife.

[55] On the evidence before us, we are satisfied that from the mid 1990s to 2001, the applicant’s relationships were dysfunctional and marred by allegations of violence. We accept the applicant’s evidence that he has slapped his first wife. Later in this decision, we give consideration to allegations of violence within the applicant’s second marriage in the context of a case summary report prepared by the Independent Children’s Lawyer appointed by the Family Court during custody proceedings for the applicant and his second wife.

48. Mention should also be made of the third section of the Tribunal’s consideration of CXZ’s family history and domestic disputes, namely, “Family and Community Services material”. The Tribunal attached little weight to notifications to Family and Community Services. The Tribunal stated (CXZ No 1 at [56]-[57]):

[56] Before the Tribunal are notifications to Family and Community Services (FACS) in relation to the applicant, which include apparent notifications from the applicant’s first wife. Notes from FACS caseworkers cast doubt on the reliability of the accounts by the applicant’s first wife and her ability to care for the children. For this reason, and in the absence of evidence by the applicant’s first wife, we give little weight to the notifications.

[57] Later notifications were made by the applicant’s second wife in the course of acrimonious family law custody proceedings, which resulted in the applicant being favourably assessed and subsequently being given the primary care of his elder sons. For these reasons and in light both of the applicant’s denial of the allegations and the absence of evidence from the applicant’s second wife, we give little weight to the notifications.

49. The fourth section concerned family law documents. It involved an extensive discussion in which attention was primarily directed to the consideration of two affidavits: the 2006 affidavit of CXZ’s sister-in-law and the 2004 affidavit of CXZ’s former partner. The following is an extract from that section of the decision (at [58]-[65]):

[58] On 9 November 2006, orders were made in the Family Court that the applicant’s two elder sons live with the applicant and have weekend and holiday contact with their mother. Orders were made for the youngest son to live with his mother and to have weekend and holiday contact with the applicant.

[59] A 2006 expert (Chapter 15) report prepared for the Family Court by the psychiatrist, Associate Professor Quadrio, found that the three boys were ‘more strongly attached to their father than to their mother.’ Associate Professor Quadrio found that the youngest child, despite living with his mother, showed very little evidence of attachment to her. This gave Associate Professor Quadrio ‘cause for considerable concern about the quality of her parenting.’

[60] Associate Professor Quadrio also found that the mother impressed ‘as a disorganised, traumatised personality, much preoccupied with her own trauma and it [is] likely that she has difficulty focusing on the needs of her children.’

[61] By contrast, Associate Professor Quadrio made the following observations in relation to the to [sic] applicant:

The father’s commitment to the children appears to be quite unreserved… [He] presents as very child-focussed, he has considerable warmth and affection and relates to the children with lots of physical affection… He has led a very traumatised and traumatising life himself and has had a grossly abnormal upbringing and it was a considerable challenge for him to overcome those difficulties and provide a stable and appropriate environment for his children, yet it appears that he has been able to do so. He is strongly committed and motivated and the impression is that with assistance and guidance he can continue to provide reasonably well for the children…The father appears to have the best interests of the children at heart and seems capable of protecting them from harm.

[62] She recommended that ‘provided that the court determines that the father’s commitment to the children and his personal rehabilitation is sincere and that the commitment he expresses is genuine then I would recommend primary residence of all three children with the father.’ It was her view that ‘the three children would benefit from remaining together and that the father appears to provide far more stability than is true of the mother.’

[63] Given the expertise of Dr Quadrio and the comprehensive nature of the report, we give weight to it in our assessment of the applicant.

[64] An affidavit by the applicant’s sister-in-law sworn in 2006 is before us. In it, she describes the applicant as overbearing, manipulative and argumentative and states that the applicant’s second wife told her that the applicant had been hitting her. It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife. The applicant contested the truth of allegations and applicant’s sister-in-law was not cross-examined on the affidavit at the time of the family law proceedings, nor did she give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant of the basis of the material contained in it.

[65] An affidavit from the former partner of the applicant sworn in 2004 is before us. In it, she describes threatening behaviour by the applicant in 2002 and 2003 in relation to his contact with the children. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it.

50. The Tribunal continued to set out evidence in relation to family violence as follows (CXZ No 1 at [73]-[77]):

[73] The case summary by the Independent Children’s Lawyer filed on 2 November 2006 notes that the applicant’s three sons had a good relationship with their father while their relationship with their mother was problematic. In relation to family violence, the Independent Children’s Lawyer stated that:

This is a major issue in the proceedings. All children demonstrate behaviour consistent with being exposed to family violence, both between the parties and in the parents’ household. Both parties admit to violence towards the other, in their lives together, to which the children were exposed.

[74] We give some weight to this case summary as an expert opinion in relation to the situation of the applicant’s sons in 2006. On the evidence before us, we accept that the children witnessed violence between their parents.

[75] In her affidavit sworn in 2004, the applicant’s daughter describes an acrimonious relationship with her father. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant gave evidence to the Tribunal in relation to his earlier relationship with his daughter. Taking into consideration the applicant’s evidence and the affidavit by the daughter, we accept that the relationship had been at times acrimonious but do not accept that the applicant was violent towards his daughter.

[76] In her affidavit sworn in 2006, the applicant’s first wife describes his violence towards her. In oral evidence to the Tribunal, the applicant admits having slapped his first wife. Considering his evidence together with the affidavit of his first wife, we accept that the applicant had been physically violent towards his first wife by slapping her.

[77] In her affidavit sworn in 2006, the applicant’s second wife describes her relationship with the applicant and his treatment of their children. In oral evidence to this Tribunal, the applicant disputed the contents of the affidavit which, it is agreed, was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife, who was not cross-examined on the contents of the affidavit either during the earlier proceedings or before this Tribunal. On the evidence before it, the Tribunal accepts that the relationship between the applicant and his second wife was marked by some physical violence.

51. After referring to references for CXZ, the Tribunal dealt with psychiatric reports and discussed CXZ’s evidence in the proceedings.

52. Given the reliance placed by CXZ upon the psychiatric reports, it is appropriate to refer to some aspects of the Tribunal’s reasoning in that respect.

53. Two psychiatrists prepared reports for the proceedings before the Tribunal, as follows:

1. An initial and supplementary risk assessment report was prepared by Dr Matthew Jones, a psychiatrist engaged by the applicant.

2. An initial and supplementary risk assessment report was prepared by Dr Stephen Allnutt, a psychiatrist engaged by the Children’s Guardian.

54. The expertise of Drs Jones and Allnutt was not disputed by the parties.

55. As to Dr Jones’ report, the Tribunal observed (CXZ No 1 at [95]-[96]):

[95] Dr Jones noted that the applicant conceded a history of domestic violence with his second wife and that there was ‘bilateral physicality’ but that he had never been charged with any violent offences related to domestic violence despite there having being a number of apprehended violence orders in place over the course of the relationship. He also noted that ‘there are no offences directed towards children, nor are there offences of a sexual nature towards adults or towards children.’

[96] In finding that the applicant does not pose a real and appreciable risk to the safety of children, Dr Jones made the following observations:

[CXZ] is currently psychiatrically well and has good insight into his history and came across as an open and forthcoming historian. He currently has no specific treatment needs and is at no increased risk of relapse with respect to any drug or alcohol behaviour and is at the low risk of relapse with respect to any criminal behaviour. He is currently living a productive and meaningful existence and, despite criminality in his distant past, came across as a pro-social individual.

From a forensic psychiatric perspective, there is no evidence to suggest any increased risk specific to children for my violence, abuse, Neglect or sexual perspective. Even given his history of criminal behaviour and drug and alcohol use, which would normally indicate a general increase of recidivism, he would still likely be considered low risk due to positive factors both in the history and in an ongoing sense.

56. As to the opinion of Dr Allnutt, the Tribunal noted that “Dr Allnutt found the applicant to pose a low risk to the safety of children” (CXZ No 1 at [100]).

57. The Tribunal then turned to CXZ’s evidence in the proceedings as follows (at [108]-[109]):

[108] The Act imposes a duty on the applicant to disclose all relevant matters: s 27(4) of the Act. The applicant gave oral evidence to the Tribunal about which he was cross-examined at some length. In considering the totality of his evidence, we found the applicant to be a truthful and reliable witness.

[109] We accept that the applicant was fined for the offences of theft and assault police that occurred in 1995. On the evidence before us and in light of the applicant’s oral evidence to the Tribunal, we are not satisfied that the applicant deliberately concealed this conviction. For this reason, we do not find him in breach of the provisions of s 27(4) of the Act.

58. In the concluding stages of the decision, the Tribunal considered the factors set out in s 30(1) of the Act, addressing each factor seriatim.

59. The defendant placed particular reliance on the Tribunal’s findings with respect to s 30(1)(b): “the period of time since those offences or matters occurred and the conduct of the person since they occurred”. The Tribunal’s findings in this respect were (at [115]-[124]):

[115] Over thirty years have passed since the homicide occurred and it has been twenty years since the applicant was acquitted of the charge of murder in 1997.

[116] Since this time, he has had no criminal convictions. In 2000, an AVO was made against him. In the absence both of details of the granting of the AVO and any evidence from the complainant, we do not give it any weight in determining whether the applicant currently poses a risk to children.

[117] In the course of acrimonious family law proceedings, charges of intimidation and assault that had been laid against the applicant in relation to the applicant’s second wife were either dismissed or withdrawn. In the absence of evidence from the complainant, we are unable to make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters.

[118] A wealth of documentation from the 2002 and 2003 Family Law proceedings is before us, including statements alleging violence by the applicant, details of which are set out above. On the evidence before us, it would appear that the statements were not subject to cross-examination before the Family Court nor did the makers of the statements give evidence before this Tribunal. Given the serious nature of this matter, we are not satisfied, on the evidence before us, that we can make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters.

[119] We accept the applicant’s evidence that he had slapped his first wife. On the basis of the case summary report prepared by the Independent Children’s Lawyer in the applicant’s family law proceedings, we accept that his sons witnessed violence between their parents. On the evidence before us, we accept that have been no further allegations of violence between the applicant and his second wife and that the applicant is seen to be a loving and caring father.

[120] In the course of these Family Law proceedings, allegations were made that, as a child, the applicant sexually assaulted his brother, who is two years his junior, and inappropriately touched his sister, who is a year older than him. On the evidence before us, we accept that sexual contact took place between the applicant and his brother when they were both children and that the applicant inappropriately touched his older sister, again when they were both children. As set out above, given the historical nature of the incidents and in light of the opinions of Dr Jones and Dr Allnutt that the incidents do not increase the applicant’s current to children, we give them little weight in assessing the applicant’s current risk to the safety of children.

[121] There have been a series of notifications to FACS/DOCS since the applicant’s acquittal in 1997, many of which appear to have been made by the applicant’s first wife, whose reliability was questioned by caseworkers, and by the applicant’s second wife, in the context of acrimonious family law proceedings that resulted in the applicant being given the primary care of his elder sons. As set out above, in the absence of corroborating material, we are unable to make any positive findings in relation to these notifications.

[122] There are COPS event records for the applicant in relation to a dispute with his daughter in 2005 and a dispute with his son in 2008. Having assessed the evidence before us, as set out above, we give it little weight in an assessment of the applicant’s current risk to children.

[123] In 2009, the applicant was acquitted of a charge of assault. Whilst we accept that the applicant showed a lack of judgement during the incident, for the reasons set out above, we give little weight to it in assessing whether the applicant poses a current risk to the safety of children.

[124] We have noted the applicant’s long working history as a security officer and given the lack of evidence before us, we are unable to make any positive findings in relation to the small number of COPS events involving incidents at venues where the applicant had been working as a security officer. It is not contested that during the applicant’s long working history as a security officer, he has not been subject to any disciplinary proceedings.

60. The Tribunal also referred to the information given by CXZ in, or in relation to, the application, pursuant to s 30(1)(j),as follows (at [139]-[141]):

[139] The applicant has given evidence that he has been a single father for the past fifteen years, initially with the full-time care of his two elder sons and now also with the full-time care of his youngest son.

[140] A reference from his doctor, who was not required for cross-examination, describes the applicant as a caring and loving father and states that he sees ‘no problem with him working and caring for children.’

[141] The applicant also submits that over the past 30 years, he has successfully rehabilitated himself during which time he has had a long working history as a security officer and has successfully parented his children.

61. In the Tribunal’s conclusion as to s 30(1) factors, it expressed the view that CXZ did not “pose a real and appreciable risk to children” (CXZ No 1 at [143]). The reasons for that conclusion are extracted in full below (at [144]-[153]):

[144] We accept that the applicant was subjected to abuse from his father during his childhood and early adulthood. We accept that, in the context of this relationship, as an eleven-year-old boy, the applicant inappropriately touched his twelve-year-old sister. We also accept that he and his younger brother (who is two years younger than him) engaged in sexual activity as children. In the absence of oral evidence from the applicant’s brother, we accept the findings of Dr Allnutt and Dr Jones that, on the evidence, this amounted to sexual experimentation in the context of a dysfunctional upbringing rather than being indicative of abuse by the applicant.

[145] We also accept that during the 1990s, the applicant was charged with an offence of social security fraud and an offence of stealing. No conviction was recorded for either charge. Given the nature of each charge, the time that has now elapsed and the fact that no conviction was recorded for either matter, we find these matters to be of no relevance to an assessment of whether the applicant currently poses a risk to the safety of children. For this reason, we give no weight to them.

[146] In 1997, the applicant was acquitted of the murder of his stepmother’s partner on the basis that he was acting as an automaton. The facts and circumstances of the killing are confronting and difficult. We give weight, however, to the opinion of both the psychiatrist engaged by the applicant, Dr Jones, and that of the psychiatrist appointed by the Children’s Guardian, Dr Allnutt, that the killing occurred as a result of the applicant’s father’s abusive control over him and, given that his father is now dead, would not reoccur. That the two psychiatrists concur in this opinion gives us further confidence in their individual assessments. On this basis, we find that, despite the awful circumstances of the killing, it is of little relevance to a consideration of whether the applicant currently poses a risk to the safety of children.

[147] We accept that the applicant was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant’s children witnessed violence between their parents and accept this this would have been detrimental to them.

[148] On the evidence before us, we are satisfied, however, that the domestic violence between the applicant and his second wife is no longer ongoing. We give weight to the Family Court orders in 2006 giving primary care of his two elder sons to the applicant and note the requirement of the Court to consider the best interests of the children in the making of orders. We also give weight to the findings of Dr Quadrio in her report to the Family Court in which she found the applicant to be a caring and involved parent to his sons.

[149] We are not satisfied that the applicant’s behaviour towards his daughter in 2006 was physically violent. In the absence of oral evidence by the applicant’s daughter, we accept the applicant’s evidence that he had marched her down the stairs in response to her behaviour. We accept the applicant’s evidence that he would now manage the situation differently and would not have told his daughter to leave the house in response to her behaviour.

[150] We have given some weight to the altercation that occurred at the fast food outlet in 2009. We find the applicant’s behaviour to have been ill-considered and note his evidence to us that he should never have got out of his car. We accept the findings of the magistrate that the applicant acted in self-defence.

[151] We note that the applicant has worked as a security guard for 28 years in volatile and often violent locations and give weight to the fact that, on the evidence, the applicant has never been charged for an offence during his employment. We also give weight to the evidence before us, undisputed by the Children’s Guardian, that the applicant has held his current security licence for a decade. We note that it is a prerequisite of the grant of a security licence that an applicant be a fit and proper person and that it would be in the public interest for the applicant to hold such a licence. (see s 15(1) and s 15(3) of the Security Industry Act 1997)

[152] Although much of the evidence before us deals with events that took place up to thirty years ago, our task is to assess whether the applicant currently poses a real and appreciable risk to children.

[153] In determining that the applicant does not currently pose a real and appreciable risk to children we have given particular weight to:

• the findings of the psychiatrists Dr Allnutt, engaged by the Children’s Guardian, and Dr Jones, engaged by the applicant, each of whom determined the applicant to be a low risk – rather than a real and appreciable risk - to the safety of children;

• the evidence before us that in 2006 the Family Court placed the applicant’s two older sons in the applicant’s care where they remain;

• the evidence before us that the applicant is an attentive and caring father who has been the primary carer of his elder sons since 2002 and that of his youngest son since 2015;

• the fact that, for the past decade, there have been no DOCS or FACS reports in relation to the applicant or his children.

SUBMISSIONS FOR THE CHILDREN’S GUARDIAN

Ground 1

Principles in M v M and CFW

62. The Children’s Guardian contended the principal ground of appeal was that the Tribunal had erred in failing to apply M v M (1988) 166 CLR 69; [1988] HCA 68 (“M v M”) as it was required (in a decision given under s 27 of the Act) by the authority in Children’s Guardian v CFW [2016] NSWSC 1406 (“CFW”). In a refinement during oral submissions, the Children’s Guardian contended that, in substance, the Tribunal failed to apply s 18(2) of the Act by omitting to assess risk in accordance with those judgments (CXZ did not object to this refinement to the ground). It was also contended that a further question of law raised by this ground was whether or not the Tribunal had failed to discharge its duty to hear and dispose of the case presented by a party before it.

63. The starting point for the submissions of the Children's Guardian was that the approach adopted in the High Court in M v M was applicable to proceedings in the Tribunal for review of a refusal of a clearance.

64. The foundation for that contention was the decisions of this Court in BKE at [33] (per Beech-Jones J) and CFW at [13] (per Harrison J).

65. It was upon that foundation, the Children’s Guardian contended that it was well established that a three step approach to assessing risk under the Act had been endorsed in the High Court in M v M, which was described in the submissions of the Children’s Guardian as set out below.

66. As to the first and second steps, in light of that authority, the Children’s Guardian submitted:

Therefore, if the Guardian relies on allegations of wrong-doing by an applicant (as she did in this case), the Tribunal should first decide whether or not it is satisfied on the balance of probabilities that the allegation is true (and if it is so satisfied then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation as groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue) [CFW at [14]].

67. As to the third step, it was submitted:

If in respect of an allegation the Tribunal reaches neither of the satisfactions just mentioned then the Tribunal ‘is still obliged to consider questions of risk that may be indicated by all the facts’ [CFW at [15]]. (It is submitted that the reference to ‘all the facts’ includes, e.g., the fact that an allegation has been made and facts relevant to assessing the weight of the allegation.) Even if an allegation, or set of allegations, is not proven on the balance of probabilities, ‘if “a lingering doubt or suspicion remains” then this should count against the [applicant]’ [CFW at [16]]: that is, if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

68. In a written submission in reply, the Children’s Guardian disputed CXZ’s contention there was no authority for a three step process, submitting:

That claim, however, is inconsistent with the plain meaning of M v. M at 77, with the plain meaning of Harrison J in CFW at [13]-[17], and with McCallum J’s reference, in CMD v. NSW Office of the Children’s Guardian, to ‘the three-stage analysis explained by Harrison J.’

[Footnotes omitted.]

69. As to the third step, the Children’s Guardian relied upon CFW at [16] and [17]. It was submitted that decision has been consistently approved. Reference was made to CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 (“CFJ”) at [72] (per Schmidt J).

70. As to the observations of Davies J in Children’s Guardian v CKF [2017] NSWSC 893 (“CKF”) and the discussion, in that decision, of CFW, the following submissions were advanced:

9. It is very respectfully submitted that there is no material difference between the conclusions of Harrison and Davies JJ. Accepting that Davies J was correct to say that ‘an open finding or “a lingering doubt or suspicion”…is simply a matter to be considered’, it is surely also correct - at least in practical terms, and at least in all but the rarest conceivable case - to say, as Harrison J did, that a suspicion of wrong-doing will, when considered, ‘count against’ the wrong-doer, in whatever degree the Tribunal thinks appropriate. How could a suspicion of wrong-doing by an applicant count for him or her? Furthermore, the mere fact that Harrison J made a point that did not appear in earlier cases (except BSR) does not make Harrison J wrong: many a case has taken a further step in the development of the law.

10. It should be noted, however, that the issue just discussed does not need to be resolved in this case (even if it were amenable to resolution by a single judge [as to which see DAR v Children’s Guardian]).

[Footnotes omitted.]

71. Further, it was submitted that Davies J accepted there was a three step process and the only point of departure was whether doubt “counts against the defendant or is…simply a matter to be considered”. It was accepted Davies J’s position was technically correct but it was difficult to conceive where an allegation of abuse may be favourable to an applicant.

72. In reply, it was submitted that CXZ’s contention that CFW was wrong and inconsistent with BKE should be rejected. Reference was made to the observations of Beech-Jones J in BKE at [33]. It was submitted:

His Honour said that, subject to two caveats not presently relevant, ‘the reasoning in M v. M is applicable to fact finding and the process of risk assessment that NCAT undertakes.’ That is what Harrison J in CFW took Beech-Jones J to mean and both judges were correct.

73. As to CXZ’s contention that there was contrary authority to the “notion of ‘lingering doubt’ or ‘suspicion’” as a proper basis for fact finding and risk assessment in a review, the rejoinder by the Children’s Guardian (by reference to the authorities summarised below in CXZ’s submissions) was as follows:

(1) In CFJ v. Office of the Children’s Guardian, Schmidt J accepted the analysis given by Harrison J in CFW. At [31], her Honour opined that ‘[t]he assessment of whether [an applicant] posed such a risk had to be approached in the way discussed by Harrison J in…CFW…at [14]-[17]’. At [70], her Honour said that ‘[a]s Harrison J explained…what the Tribunal first had to consider was “whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had “no hesitation in rejecting the allegation as groundless”.’ And, at [72], her Honour opined: ‘Unless the Tribunal determined that the allegations that CFJ had viewed such images were groundless, even if no positive finding that he had accessed such images could have been made on the evidence, questions of whether he posed a risk to the safety of children would still have had to be determined by the Tribunal in the way discussed in CFW at [16] and M v. M at 77).’

(2) In Children’s Guardian v. CFK, Davies J did not reject the relevance of any lingering doubt or suspicion that might remain after the first two steps had been taken (without a conclusion). Rather, his Honour said that such doubt or suspicion is ‘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.’ (Davies J differed from Harrison J only on whether such a lingering doubt or suspicion was ‘simply a matter to be considered’ or was to be ‘counted against’ an applicant. That is not a difference [if it is a difference] that needs resolution in this case, nor could it be resolved at any level lower than the Court of Appeal.)

(3) In CGB v. Children’s Guardian, Harrison AsJ expressed her agreement with, and preference for the opinion of, Davies J, rather than Harrison J, on the point just mentioned. Her Honour did not otherwise disagree with Harrison J.

[Footnotes omitted]

74. It was further submitted in reply:

Harrison J’s application of M v. M to cases under s. 27 of the Act was consistent with M v. M and BKE. Save for the fine, and presently immaterial, qualification advanced by Davies J, Harrison J’s analysis has been approved, applied or favourably mentioned by at least McCallum, Davies, Schmidt, and Adamson JJ, and Harrison AsJ. The Court would be especially slow now to find that Harrison J was plainly wrong. His Honour was right.

75. In CFW and CFJ, it was found that the Tribunal must assess the weight to be given to an allegation that was “neither proven to the usual standard nor rejected as groundless”. The Tribunal must first decide “what weight it will give and accumulate those matters and then decide what does that say about the statutory test”.

Failure to Apply Principles in M v M

76. The Children’s Guardian submitted that the Tribunal made no reference to M v M, CFW or BKE. It was accepted that such an omission was not alone sufficient to show the Tribunal did not apply the correct law but the omission was relevant in determining the appeal, particularly in the light of the fact that the Tribunal’s reasons referred only to the first of the three steps in the reasoning process. The Tribunal found that certain allegations were not proven on the balance of probabilities but the reasons for decision made no mention of the Tribunal’s having considered the second and third required steps with respect to five allegations raised by the Children’s Guardian (discussed further below).

77. In reply to a contention by CXZ, it was submitted the Court should reject CXZ’s submission that there was no obligation to consider every single allegation made by the Children’s Guardian and determine whether it was groundless or not. The Tribunal was required to consider allegations that were “material” and “had not already been found proven on the balance of probabilities”. It was submitted:

9. … The five allegations identified in the particulars subscribed to Ground 1 in this appeal were substantial, both in the sense that the alleged matters were significant (violence in various contexts) and in the sense that they were advanced clearly and directly in a reputable form (affidavits and apprehended violence orders made by consent, albeit without admission). Furthermore, the Tribunal treated them as significant, in that it addressed whether or not it considered them proven on the balance of probabilities.

10. In this context, there is no basis for accepting that the Tribunal was not obliged to complete its consideration of those five allegations in the way required by law. No authority for that proposition is cited by the defendant: to the contrary, it submitted, at DS [31], that ‘NCAT is obligated to weigh evidence….’

11. When dealing with an application under s. 27 of the Act, as this case was, the Tribunal is obliged to consider the whole of the case adduced by the Guardian. This was not a case in which the five allegations could be ignored because the Tribunal reached a conclusion favourable to the Guardian on the basis of other evidence (thus obviated the need for further allegations to be considered), or could be ignored for some other reason; and this is not a case in which the Tribunal found that the five allegations so minor that they need not be mentioned in its reasons. Rather, this is a case in which the Tribunal neither undertook the required steps of analysis, and thereby considered the case that was put before it by the plaintiff, nor followed a path that avoided the need to take those required steps.

78. The Children’s Guardian contended that when the Tribunal had reached conclusions, such as “we cannot make any positive findings”, the Tribunal had made no positive finding against CXZ under the first step (contrary to the submission of the Children’s Guardian below) but then failed to consider, as it was required to do by law, whether or not the five allegations relied upon by the Children’s Guardian were groundless. This conclusion was to be inferred by the failure of the Tribunal’s reasons to contain any express statement or an implication that it proceeded to deal with those questions.

79. It was accepted that the way the Tribunal expressed its conclusions, in this respect, was capable of two possible constructions. The first was that no affirmative finding was made that the allegations were groundless (resulting in a failure to consider the second step). The second option was the Tribunal made, in fact, no definitive finding which, in that respect, could encompass the first and second steps (in which case it could not be said the Tribunal failed to consider the issue of whether the allegations were groundless).

80. It was conceded that the Tribunal may choose to address all issues “at once”. It was, however, unclear whether the Tribunal directed its mind to the second step issue and made a positive finding that the allegation was not groundless or simply failed to address the question. The ultimate submission of Children’s Guardian was that the Tribunal had failed to address whether the allegation was groundless and, therefore, failed to reach any conclusion that the allegations were groundless.

81. The Children’s Guardian went further to contend that, insofar as the Tribunal’s reasons gave any insight into what the Tribunal would have found as to the allegations, it appeared that the Tribunal would not have found the allegations to be groundless.

82. It was also contended, if the Tribunal did address the second step, in any event, it was clear that it failed to address the third step as to any “lingering suspicion”. That issue did not involve a singular allegation but five. It was necessary for the Tribunal to consider the “accumulated weight” of suspicions held as to each such allegation. The Children’s Guardian made the following further submissions in that respect:

It follows that the Tribunal would or should (or at least could) have held ‘a lingering doubt or suspicion’ about each of the allegations and therefore was obliged to take account of those doubts or suspicions (to whatever extent that the Tribunal saw fit) when discharging its obligation ‘to consider questions of risk that may be indicated by all the facts’. There is nothing to suggest that the Tribunal either adverted to the question of whether or not it had a lingering doubt or suspicion or attended to the task of assigning weight to any of the five matters under discussion when evaluating the risk that might be posed by [CXZ]. Error is thus established.

The Allegations

83. The five allegations relied upon by the Children’s Guardian (“the allegations”) and the corresponding references to CXZ No 1, will be addressed, in turn, in the order set out in the written submissions of the Children’s Guardian, namely:

1. The first allegation and [51] of CXZ No 1 (“allegation 1”);

2. The second allegation and [53] of CXZ No 1 (“allegation 2”);

3. The third allegation and [49] of CXZ No 1 (“allegation 3”);

4. The fourth allegation and [64] of CXZ No 1 (“allegation 4”); and

5. The fifth allegation and [65] of CXZ No 1 (“allegation 5”).

84. The Children’s Guardian’s submissions, in that respect, are set out below together with supplementary submissions made in relation to the same.

Allegation 1

85. As to the allegation 1, the Children’s Guardian submitted:

On the fact that in 1995 an apprehended violence order had been made for the protection of [CXZ’s] first wife ‘following allegations by his first wife that [he] had made threats’, the Tribunal held:

[51] Given that the AVO was made by consent and without admissions and that we have been unable to test the veracity of the complainant’s version, we cannot make any positive findings about the alleged conduct of the applicant.

(It is not submitted that ‘cannot’ was intended as a statement of law or even as intended literally [which would have rendered the statement erroneous]: it should be taken it to mean that the Tribunal did not consider the evidence strong enough to justify a positive finding.)

86. It was further submitted, the Tribunal had found that no finding was available on the balance of probabilities that the applicant made threats to his first wife and her then partner. The Children’s Guardian repeated its submission that the Tribunal had not found the allegation as groundless, although if it had turned its mind to that issue it appears the Tribunal would have found the allegations not to be groundless. However, the Tribunal did not take the third step and gave the allegation no weight.

Allegation 2

87. As to allegation 2, the Children’s Guardian contended:

On the fact that another AVO was made in 2000 for the protection of [CXZ’s] second wife, the Tribunal held:

[53] Given the lack of evidence from the complainant and the lack of details as to the circumstances of the AVO being granted, we cannot make any positive findings about the alleged conduct of the applicant.

88. It was submitted that the Tribunal had “conceivably” taken the second step but had failed to take the third.

Allegation 3

89. As to allegation 3, the Children's Guardian submitted:

On later allegations made by [CXZ’s] second wife, the Tribunal concluded:

[49] … we accept the applicant’s admission that he slapped his first wife. We also accept that the applicant’s second marriage was volatile. The allegations that the applicant was physically violent towards his second wife are serious ones. In light of the applicant’s evidence denying the allegations and the absence of evidence from the applicant’s second wife, we cannot be satisfied on the balance of probabilities that the applicant was physically violent towards her.

90. It was submitted the Tribunal failed to take the second and third steps in this respect.

Allegation 4

91. As to allegation 4, it was submitted:

On a 2006 affidavit from [CXZ’s] sister-in-law, in which she described [CXZ] as ‘overbearing, manipulative and argumentative and state[d] that [CXZ’s] second wife told her that [CXZ] had been hitting her’, the Tribunal concluded:

[64] … It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife. The applicant contested the truth of allegations and applicant’s sister-in-law was not cross-examined on the affidavit at the time of the family law proceedings, nor did she give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant of the basis of the material contained in it.

92. The Children’s Guardian contended that the Tribunal failed to make a finding as to whether the allegation was groundless and/or gave the allegation no weight having regard to the third step.

Allegation 5

93. As to allegation 5, the Children’s Guardian submitted:

On a 2004 affidavit from a former partner of [CXZ] in which she ‘describe[d] threatening behaviour by [CXZ] in 2002 and 2003 in relation to his contact with his children’, the Tribunal concluded:

[65] … It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it.

94. The oral submissions for allegation 4 were repeated for this allegation.

Conclusions by the Tribunal

95. The Tribunal may have addressed, it was contended, the second and third steps in its concluding remarks (CXZ No 1 at [143]-[153]) but it failed to do so. The Children’s Guardian, in that respect, relied upon the following propositions:

1. There was nothing express in those remarks (for example, a reference to the tests) that showed that the Tribunal adverted in to the task described in M v M.

2. The remarks did not include a synthesis of the whole of the evidence. They merely recited some of the major items individually and assigned weight to them (not being the allegations in question).

3. The Tribunal came closest to dealing with the subject matter of the allegations at [147], where it said the following:

[147] We accept that the applicant was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant’s children witnessed violence between their parents and accept this this would have been detrimental to them.

4. However, that passage did not overlap with the allegations and reinforced the conclusion that the five matters, having been found unproven on the balance of probabilities, were completely ignored.

96. There is an absence of an overall synthesis by the Tribunal as to which of those conclusions are most important or attracted the greatest weight. As to [147] of the reasons for decision, that paragraph shows that the Tribunal accepted CXZ’s concession with respect to his first wife. Otherwise, in the paragraph, the Tribunal did not make a conclusion that CXZ was violent towards his second wife, but rather accepted CXZ’s evidence that the relationship involved violence. The passage does not demonstrate an engagement or overlap with the five allegations. There is no second and third step analysis per M v M, and CXZ No 1 does not reflect that the Tribunal undertook the correct test because, with respect to the allegations vis-à-vis the second wife, there is no discussion about whether the allegation is groundless or as to whether there is a lingering doubt.

97. The Children’s Guardian accepted that “other passages” of the Tribunal’s reasons for decision must result in a conclusion that, had the Tribunal conducted an analysis in accordance with M v M, it “might” have given little weight to each of the allegations. However, it was submitted that the following must be taken into account in that respect:

1. It should not be concluded or assumed that the Tribunal would have assigned little weight to these five allegations. That several other parts of the Children’s Guardian’s case were “given little weight” does not mean that the allegations would have been assigned the same weight. For one thing, some of the allegations, unlike others, were supported by sworn testimony, a matter that the Tribunal might have taken into account when weighing them.

2. Any assumed inevitability that these matters would have received little weight does not mean that they would have received no weight. By all indications, the Tribunal would have given the allegations some weight (perhaps only little, but some nonetheless). That is significant because the task of the Tribunal was to “count” the various matters and to make an evaluation of their accumulated weight when assessing the risk posed by CXZ.

3. Furthermore, and contrary to the correct approach, it was submitted the Tribunal proceeded one by one through the many allegations against CXZ and dismissed each one as being of “little” or “limited” (or similar) weight. It never, expressly or implicitly, considered the accumulated weight of all the matters put before it.

98. In that respect, the Children’s Guardian referred to particular aspects of the reasons for decision of the Tribunal to illustrate that, whilst there was a particular weighing of each allegation (other than the allegations), the Tribunal’s decision did “not speak in terms of what risk was indicated by all of these matters together”. The illustrations were as follows (with references as to CXZ No 1):

1. to “give…little weight” – but also “[w]e have given some weight” – to CXZ’s “lack of judgement” in a violent altercation outside a fast food restaurant (note that CXZ was acquitted of assault, on the ground of self-defence, but the Tribunal was satisfied of his lack of judgment) (CXZ No 1 at [31] and [150]);

2. to “give little weight” to several notifications to the Department of Family and Community Services (“FACS”) (note that the Tribunal had good reason to give the notifications negligible weight) (CXZ No 1 at [56]-[57]);

3. to “give limited weight” to the contents of an affidavit sworn by the CXZ’s sister in 2004, in which CXZ’s sister expressed concerns about his children residing with him (CXZ No 1 at [71]);

4. to “give limited weight” to an affidavit in which a relative of CXZ’ second wife described his “intimidatory behaviour” (CXZ No 1 at [78]);

5. to “give limited weight” to an incident in which CXZ had an altercation with his daughter and police were called (the Tribunal gave “some weight” to CXZ’s evidence that “she started to strike him” and “he grabbed her wrists to stop her” and “he didn’t push her down the stairs”. The Tribunal also accepted that their “relationship had been at times acrimonious but [did] not accept that [CXZ] was violent towards his daughter” (CXZ No 1 at [75] and [81]);

6. to “give… little weight” to a FACS report that CXZ’s “eldest son had contacted police as he was ‘scared of his father…’” (note that when police attended, the son said that he did not have any fears) (CXZ No 1 at [82]); and

7. to “give little weight” to allegations of childhood sexual misconduct by CXZ towards his siblings (the assaults occurred but were discounted as the product of a disturbed childhood) (CXZ No 1 at [86]).

99. It was submitted the aforementioned errors deprived the Children’s Guardian of a real opportunity of securing a different result in the proceedings.

Ground 2

Inadequate Reasons

100. The Children’s Guardian put the following short submissions as to inadequate reasons, as follows:

26. If the Tribunal did not err as alleged above then, in the alternative, the Guardian contends that the Tribunal failed to discharge the onus imposed upon it by subs. 62 (3) of the Civil and Administrative Tribunal Act to give reasons in accordance with that subsection. Therefore, the alternative ground of appeal is that ‘[t]he Tribunal erred at law by failing to give adequate reasons for its decision’ in that failed in the six specific ways identified in the originating summons.

27. Subsection 62 (3) provides:

A written statement of reasons for the purposes of this section must set out the following:

(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,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

28. The six ways in which the Tribunal’s reasons did not meet the requirements imposed by law have been expressed in the summons as follows:

(a) [the Tribunal] failed to reveal whether or not it found the five allegations mentioned at paragraphs [49], [51], [53], [64] and [65] of its reasons for decision to be groundless;

(b) if it found any of the said allegations to be groundless - it failed to give reasons for any such finding;

(c) it failed to reveal whether or not it took account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the Child Protection (Working with Children) Act 2012;

(d) if it did not take account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) - it failed to give reasons for not doing so;

(e) it failed to reveal whether or not, when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2), it took account of the totality of the allegations against the defendant that it did not reject or find to be of no weight; and

261. For the same reasons as in allegations 1 and 2, the Tribunal’s expression “we make no positive findings” should be construed as the Tribunal making no definitive finding that the allegation was well founded or groundless. As was the case in relation to allegations 1, 2 and 3, there are components of the Tribunal’s decision which suggest that, if, contrary to that conclusion, the Tribunal was taken to have made a finding (by implication, as no express finding was made) as to whether the allegation was groundless, on balance, the Tribunal’s decision would suggest that the Tribunal would not, without hesitation, find the allegation to be groundless.

262. As mentioned above, the Tribunal made a finding, which extended to its consideration of allegation 4, that CXZ was a witness of truth. The concessions made by CXZ, as discussed below, in relation to allegation 4, which were accepted by the Tribunal, clearly indicate that the Tribunal had not found allegation 4 to be groundless.

263. First, the Tribunal (at [46]) referred to CXZ’s evidence in which he conceded that his conduct towards his second wife involved “actions” which “were always done in self-defence”. That passage is now extracted:

[46] … I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional. However, [she] was always the aggressor. Throughout our relationship [she] was violent, controlling, aggressive and erratic…I have never punched her as she has claimed. My actions were always done in self-defence in response to [her] violence with the least amount of physical force possible…

264. Secondly, the Tribunal summarised (at [47]) CXZ’s oral evidence in this respect, which disclosed a similar concession:

[47] In oral evidence before the Tribunal the applicant reiterated his statement that he had not hit his second wife but would simply defend himself when getting hit. No material was provided to dispute the applicant’s evidence in this regard.

265. Thirdly, the Tribunal referred to CXZ’s first affidavit which disclosed an admission made by CXZ to his brother, which the Tribunal described as follows (at [69]):

[69] In the first affidavit, he recounts the conversation he had with his brother who asked him whether he had hit his second wife. In reply, the applicant had said ‘Yes… when she hits or spits on me I slap her, would it be any different if [your wife] hit you or spat in your face, what would you do, would you hit her?’

266. Fourthly, as mentioned in relation to allegation 3, the Tribunal (at [74] and [119]) accepted the evidence contained within the case summary of the Independent Children’s Lawyer filed 2 November 2006. That case summary referred to admissions made by CXZ and his second wife that they were violent towards each other (at [73]).

267. As mentioned, due to the Tribunal’s aforementioned finding as to CXZ’s credit, such concessions and admissions were accepted as statements of truth by the Tribunal. The statements, by their nature, were probative of the fact that, even if CXZ’s conduct was not precisely as alleged, he did engage in some conduct that indicated risk. The statements might be taken as indicating some form of violence engaged in by CXZ in front of his children, even if it was accepted that the violence constituted self-defence.

268. I turn then to the question of whether the Children’s Guardian made an assessment of risk, notwithstanding its findings as to the allegations as I have discussed above.

269. I accept the submission of the Children’s Guardian that the Tribunal did not make such an assessment within the four walls of the allegation as expressed in the paragraph of the judgment relied upon by the Children’s Guardian in this respect. The Tribunal, as with allegations 2 and 3, merely set out the allegation and then stated its finding based on the available evidence without expressly referring to risk. The Tribunal does, however, use the wording “no positive findings in relation to the applicant” (whereas in previous findings the Tribunal had referred, in that respect, to CXZ’s conduct or whether CXZ had done the alleged act). Taken at its highest, those words may suggest that the finding extended not only to the allegation itself, but also to the risk CXZ posed in the light of the evidence as to the allegation. That conclusion is supported by the Tribunal’s statement that the finding was made on the basis of the material contained in the affidavit of CXZ’s sister-in-law. It could therefore be argued that the Tribunal considered the evidence as to the allegation and made a finding as to CXZ’s risk, rather than a finding as to whether the allegation was made out.

270. However, on balance I do not consider that conclusion can be reached. The Tribunal emphasised that “the affidavit was prepared as part of acrimonious family law proceedings”, that “the applicant contested the truth of allegations” and that the “applicant’s sister-in-law was not cross-examined on the affidavit” when forming its conclusion that it could make no positive finding. These three aspects of the Tribunal’s discussion all go to the truth of the allegation, rather than specifically the risk that CXZ posed to children in the light of the evidence relating to the allegation. This construction being the better view, it is clear that the Tribunal did not address the third stage of the inquiry within the subject paragraphs.

271. However, in my view, it is tolerably clear that in later discussion in its decision, the Tribunal did grapple with, and resolve, whether CXZ potentially posed a risk with respect to this allegation.

272. In relation to the first element of the allegation, as mentioned above, the Tribunal stated that it had given particular weight to the findings of Dr Allnutt and Dr Jones in finding that CXZ posed low risk to children.

273. Dr Allnutt opined (see CXZ No 1 at [103]):

He has a moderate loading of historical risk factors associated with general aggression. He has however a number of protective factors that ameliorate his risk profile. In addition, consideration needs to be given to the absence of aggressive behaviour towards others over a number of years (outside of those related to his work), as the principle is that an absence of aggressive behaviour over time at risk, is associated with the reduction of risk for aggression in the future (this is probably also associated with his age, as there is a relationship between a reduction in risk profile and ageing, in addition to his discontinuation of substances and probable adoption of a more pro-social lifestyle by the applicant). The aggressive behaviour, involving children relates to his own children, in a domestic context, remains ambiguous. However there has been no complaint of aggression towards children since 2005.

274. Dr Jones highlighted the current “protective factors” for the CXZ, including “stable close relationships which are active and engaging”.

275. The Tribunal found the doctors considered that, while CXZ may have been aggressive (which presumably incorporates being “overbearing, manipulative and argumentative”) in the past, there had been not only an absence of such behaviour over a number of years, but furthermore the CXZ currently exhibited no such behaviour. As the Tribunal gave “particular weight” to the findings of the doctors in assessing the current risk of the CXZ, the Tribunal had satisfactorily undertaken an assessment of the evidence relating to the first part of allegation 4.

276. As to the second element of allegation 4, I find that the Tribunal has conformed with what has been described as the third stage of the inquiry for the same reasons as analysed in relation to allegation 3 because that allegation (that CXZ was physically violent towards his second wife), encompasses the second element of allegation 4 (that CXZ was hitting his second wife).

Allegation 5

277. Allegation 5 was expressed as follows (at [65]):

[65] An affidavit from the former partner of the applicant sworn in 2004 is before us. In it, she describes threatening behaviour by the applicant in 2002 and 2003 in relation to his contact with the children…

278. Once again, this allegation is framed ambiguously. Firstly, it was not made explicitly clear which of CXZ’s former partners was being referred to. Based on the years in question, I will proceed on the basis that the Tribunal was referring to CXZ’s second wife, from whom CXZ separated in 2002. Secondly, it is unclear if the threatening behaviour was alleged to have been directed at the CXZ’s second wife, their children, or both. I will assume that the allegation encompasses the broadest of these interpretations. However, it should be noted that many aspects of the CXZ’s relationship with his second wife and children fall outside the time frame of allegation 5. For example, the “2005 incident with daughter” and the “2008 report of son running away” (at [79] and [82], respectively).

279. The Tribunal’s findings in relation to allegation 5 were in very similar terms to allegation 4, as follows (at [65]):

[65] … It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it.

280. The Tribunal’s expression “we make no positive findings” should be construed as in allegations 1, 2 and 4.

281. It should be noted, in this respect, that unlike in allegations 3 and 4, the Tribunal did not refer to a statement of CXZ in which he made concessions as to allegation 5. The Tribunal referred to two affidavits in which CXZ denied allegations of violence and intimidation made by his second wife and sister-in-law (at [68]). The Tribunal also extracted a statement made by CXZ in which he discussed the nature of his relationship with his second wife, however that statement did not disclose any admission by CXZ that he had behaved in a threatening manner as alleged in allegation 5. CXZ merely stated (at [46]):

[46] … I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional ... Also, after separation we were involved in highly contentious child custody proceedings and she was seeking the full time custody of all three of our children.

282. As in my consideration of the previous allegations, in evaluating whether the Tribunal undertook the requisite remaining step in evaluating risk, I have had regard to the paragraphs of the judgment relied upon by the Children’s Guardian and other passages of the Tribunal’s judgment which related to or concerned that issue.

283. As to the paragraph relied upon by the Children’s Guardian as constituting the allegation, it is clear that the Children’s Guardian undertook no such evaluation. The wording the Tribunal adopts in considering allegation 5 and the structure of the subject paragraph are almost identical to allegation 4. In my view, for the same reasons discussed in relation to allegation 4, I do not find that the Tribunal has undertaken the third stage of the inquiry. The Tribunal did not expressly deal with the risk that CXZ poses to children in the light of the allegation, nor is an implication available to that effect based on the wording or structure of the subject paragraph. As in allegation 4, the Tribunal emphasised matters that go to the truth of the allegation, in favour of and to the exclusion of any assessment as to the risk that CXZ poses to children in light of the evidence relating to the allegation. This is demonstrative that the Tribunal’s analysis does not accord with the third stage of the inquiry.

284. However, in the balance of the decision I do consider that the Tribunal undertook that task, for the reasons that follow:

1. First, at [57], the Tribunal, in assessing the risk of CXZ, gave “little weight” to FACS notifications (subsequent to 2001) made by CXZ’s second wife in the course of the family law proceedings. These notifications included the period that allegation 5 related to and therefore likely concerned the subject matter of allegation 5.

2. Secondly, at [71], the Tribunal gave “limited weight” to an affidavit sworn by CXZ’s sister in 2004, in which CXZ’s sister disclosed “real concerns about the [CXZ’s] children residing with [CXZ]”. These concerns may have encompassed allegation 5 as they presumably relate to CXZ’s contact with children, although that much is not made clear.

3. Thirdly, at [78], the Tribunal gave “limited weight” to an affidavit sworn in 2005 by a relative of the CXZ’s second wife describing “the applicant’s intimidatory behaviour” and, at [68], gave “some weight” to two affidavits of CXZ sworn in 2006 in which the CXZ denied allegations of violence and intimidation made by his second wife and sister-in-law. As allegation 5 referred to “threatening behaviour”, it is likely that the Tribunal’s consideration of these affidavits formed part of the Tribunal’s assessment of risk having regard to allegation 5, although that much is not made explicitly clear.

4. Fourthly, at [67], the Tribunal gave “some weight” to an affidavit sworn by CXZ in 2005 describing CXZ’s relationship with his second wife and their children. It can be assumed that this affidavit covered the period and was relevant to allegation 5.

5. Further, the Tribunal placed an emphasis on factors more relevant to current risk. For example, the Tribunal gave weight to, and thus accepted, the report of Associate Professor Quadrio, which, inter alia, stated (see extract at [61] of CXZ No 1):

The father’s commitment to the children appears to be quite unreserved… [He] presents as very child-focussed, he has considerable warmth and affection and relates to the children with lots of physical affection…

285. Thus, notwithstanding allegations of threatening behaviour in relation to his contact with children in 2002-2003, in assessing the risk of CXZ, the Tribunal considered that more weight should be attributed to the fact that no such behaviour was currently exhibited by CXZ, who, it was accepted, was “seen to be a loving and caring father” (at [119]).

Accumulated Weight

286. I have found that contrary to the submissions advanced by the Children’s Guardian, that, when viewed as a whole, the Tribunal, by its decision, did grapple with the full panoply of issues relevant to the assessment of risk with respect to four of the five allegations identified by the Children’s Guardian.

287. In one respect, the Children’s Guardian’s submissions do not grapple with this scenario as they were substantially predicated upon the foundation that, contrary to the conclusions reached in this judgment (save for allegation 1), the Tribunal had not fully assessed risk consistently with the relevant principles deriving from M v M as discussed in this judgment.

288. However, the Children’s Guardian also contended that, irrespective of the particular conclusions made by the Court as to each allegation, it should find the Tribunal failed to consider the accumulated weight of the allegations.

289. Thus, the Children’s Guardian’s submissions did raise the issue of accumulated weight even in the context now operating in consequence of the findings made in this judgment (that is the context of the findings as to the allegations raised in this judgment) and in any event require examination in consequence of the principles to which I have earlier referred in this judgment. Specifically, the Children’s Guardian submitted:

1. The Tribunal effectively proceeded one by one through the allegations (and other allegations raised against CXZ) and dismissed each one as being of little or limited weight.

2. Had the Tribunal reached a conclusion as to the risk associated with the allegations it would not have attributed little weight, and certainly it could not have attributed “no weight” to the allegations. It was contended that some of the allegations were supported by sworn testimony; a matter the Tribunal might have taken into account when weighing them

3. That is significant because the “task of the Tribunal was ‘to count’ the various matters to make an evaluation of their accumulated weight when assessing the risk posed by the applicant”.

290. Reference should also be made to two further aspects of the submissions of the Children’s Guardian as to the conclusions appearing at the end of the Tribunal’s discussion. First, the Children’s Guardian submitted:

24. It is true that the Tribunal, towards the end of its reasons, when it summarized its reasons for concluding that [CXZ] did not pose a risk to the safety of children (at [143]–[154]), returned to some (presumably important) parts of the case (the sexual activity towards siblings, a charge of social security fraud, the acquittal for murder, the violence towards [CXZ’s] two wives [‘We accept that [CXZ] was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that [CXZ’s] children witnessed violence between their parents’]) but that was not an exercise in assessing the total weight of all the matters before the Tribunal. Rather, it appears that the Tribunal decided to disregard many of those matters.

291. Secondly, as outlined at [94] above, the Children’s Guardian also advanced a submission that, whilst there was a particular weighing of various other allegations (other than the allegations), the Tribunal’s decision did “not speak in terms of what risk was indicated by all of these matters together”. The Tribunal provided a series of examples which I will not repeat.

292. CXZ did not specifically develop submissions on this issue.

293. The Children’s Guardian was correct to submit that the Tribunal did not expressly or impliedly evaluate the accumulated weight of the evidence of the allegations when assessing the risk posed by CXZ in its conclusions.

294. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually).

295. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations’ and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being “no longer ongoing” (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk.

296. In [152] and [153], the Tribunal referred to events having occurred up to 30 years ago but it is not made clear how that passage of time and how any risks arising from an earlier time have been the subject of the Tribunal’s deliberation. This is not to say the Tribunal did not place reliance on the evidence of the doctors as to risk diminishing over time and, as mentioned, their current estimate of risk, but that does not entail the Tribunal either specifically in relation to each allegation or in a cumulative sense discussing what risk was posed by CXZ based on their earlier findings (as I identified at various places in their decision earlier in this judgment).

291. There is nothing in the Tribunal’s discussion arising under the requirement of s 30(1) of the Act which would alter this conclusion. Nor do I consider that it would be inferred that the Tribunal addressed the risk posed by allegations 2, 3 and 4 on a cumulative basis having regard to the manner in which the Tribunal approached the assessment of risk. Each allegation was assessed as a silo. It is true that it was necessary to travel outside the principal discussion of the allegation (as relied upon by the Children’s Guardian) in order to ascertain the Tribunal was discussing the ultimate or final issue of risk (described as the third stage) but the discussion, such as it was, concerned the particular allegation under consideration. In fact the fragmented nature of the discussion sits ill with the notion of some overarching discussion in the Tribunal’s conclusion drawing together the strands of its findings. I give some examples below.

292. In finding that the Tribunal dealt with risk in the case of allegation 2, I referred to the Tribunal’s statement at [116] of its decision, where it gave no weight to the 2000 AVO in its assessment of risk and the particular weight that the Tribunal placed on the report of Dr Jones which concluded CXZ posed a low risk to the safety of children in spite of CXZ’s conceded history of domestic violence with his second wife and the AVOs in place over the course of their relationship. This discussion was located under the following headings:

1. “The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b))”;

2. “Conclusion on section 30(1) matters”; and

3. “Psychiatric reports”.

299. As to allegation 3, I noted the Tribunal’s reliance on the evidence pertaining to the allegation not being indicative of the risk that CXZ “currently” posed and the fact that the Tribunal placed “particular weight” on the findings of Dr Allnutt, who concluded that in spite of any evidence relating to allegation 3, CXZ was in the low range of risk. That discussion was also found under the same three headings listed in the preceding paragraph.

300. As to allegation 4, I once again referred to the particular weight that the Tribunal had placed on the findings of Dr Allnutt and Dr Jones, who had both assessed CXZ to pose a low risk to children in the light of the evidence as to allegation 4. I also noted that the Tribunal had adequately assessed risk in accordance with the third stage of the inquiry for the same reasons as in allegation 3. This discussion was found under the same headings as in allegations 2 and 3 (see extracted above at [298]).

301. It is unclear from the concluding remarks just what attention the Tribunal paid to allegations 1 and 5 (it seems to be limited to passing reference to “a series of notifications to FACS/DOCS since the applicant’s acquittal in 1997” (at [121]) and “a wealth of documentation from the 2002 and 2003 Family Law proceedings” including statements alleging violence by CXZ (at [118]). However, the direct connection that these statements had to the allegations was not properly set out by the Tribunal), but certainly no consideration as to how the risks associated with these allegations (noting the earlier finding that the Tribunal did not engage in the third stage consideration in dealing with allegation 1) may have contributed to the assessment of risk in a cumulative sense.

302. It follows, in these circumstances, I consider Ground 1 to be made out.

Ground 2

303. The Children’s Guardian accepted that its contentions as to the inadequacy of reasons mirrored its contentions under ground 1. In oral submissions the Children’s Guardian submitted:

There is an alternative ground which only arises if your Honour is persuaded that the tribunal did apply M v M and that alternative ground is they failed to give adequate reasons in its discharge of its functions.

304. As I have found that the Tribunal did not apply M v M, it would appear to be unnecessary to resolve ground 2.

305. The approach to the resolution of a ground of the kind is well settled. In this respect, it should be remembered that reasons be read as a whole, fairly and with a “beneficial construction”: Wu Shan Liang at 271 to 272. Reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 272.

306. Without relying on the question, I observe, having regard to the foregoing findings and bearing in mind the approach adopted by the Children’s Guardian to this ground, it would appear that the first four of the six bases expressed in support of ground 2 may be rejected (see [18] and [100] above). However, the remaining two contentions of the ground seem to have greater force.

The Contention

307. I reject the contention advanced by CXZ, essentially upon the contentions advanced by the Children’s Guardian. The issue sought to be ventilated by CXZ, in this respect, was not raised before the Tribunal. I agree the Tribunal cannot be said to have erred by not accepting an unmade contention that the evidence should have been received on a limited basis.

308. Nor was there a sufficient basis advanced by CXZ as to why the Tribunal would necessarily have received the evidence on that basis in the absence of a request to have the subject deponent made available for cross-examination and objection raised as to the receipt of the evidence (attention should also be given to my earlier discussion of FZ and BRL).

Conclusion

309. I have accepted the Children’s Guardian’s submissions as to the principles applicable to the determination the Tribunal was required to undertake, with respect to the application before it. Whilst I have rejected the Children’s Guardian’s contentions as to the application of those principles with respect to particular allegations, namely allegations 2, 3, 4 and 5 (but not 1), I have concluded that the Children’s Guardian’s contentions as to the failure of the Tribunal to properly assess the accumulated weight which should be attached to those risks was correct. Ground 1 should be accepted on that basis.

310. It is, therefore, unnecessary to resolve ground 2. I have rejected the contention advanced by CXZ.

311. It follows that the first three orders proposed by the Children’s Guardian should be made. The parties accepted that costs should follow the event.

DIRECTION

312. The Children’s Guardian shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment.

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Decision last updated: 27 August 2019