CMD v NSW Office of the Children's Guardian

[2018] NSWSC 1348

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348
Hearing dates:	18 October 2017
Decision date:	31 August 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Appeal dismissed
Catchwords:	ADMINISTRATIVE APPEAL – application by high school maths teacher for a working with children check clearance – where teacher acquitted of criminal charges alleging sexual misconduct with a female student – assessment of risk – whether Tribunal misunderstood its statutory function – where Tribunal neither satisfied that offences probably did occur nor that they probably did not – whether required to resolve inconsistencies in child’s allegations before being satisfied as to the existence of a real and appreciable risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 14, 15, 18, 27, 30 Civil and Administrative Tribunal Act 2013 (NSW), ss 17, Schedule 3 cl 17(1)(a), 38(5)(c), 62(3) Evidence Act 1995 (NSW), s 89(1)(a)
Cases Cited:	BKE v Office of Children’s Guardian [2015] NSWSC 523 Buck v Bavone (1976) 135 CLR 110 BVT v Office of the Children's Guardian [2016] NSWSC 1169 Children's Guardian v CKF [2017] NSWSC 893 CMD v Children's Guardian [2017] NSWCATAD 150 Commission for Children and Young People v V [2002] NSWSC 949 FTZK v Minister for Immigration and Border Protection [2014] 88 ALJR 754; [2014] HCA 26 M v M (1988) 166 CLR 69; [1988] HCA 68 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Sullivan v Civil Aviation Safety Authority [2014] 322 ALR 581; [2014] FCAFC 93
Category:	Procedural and other rulings
Parties:	CMD (plaintiff) NSW Office of the Children’s Guardian (defendant)
Representation:	Counsel: KM Richardson SC, S Palaniappan (plaintiff) I Fraser (defendant)   Solicitors: Nyman Gibson Miralis Lawyers (plaintiff) Crown Solicitor’s Office (defendant)
File Number(s):	2017/173552
Publication restriction:	A non-publication order is in force in respect of any identifying information concerning the plaintiff and the complainant. The plaintiff is referred to by the pseudonym “CMD”. The complainant is referred to by the pseudonym “child M”.

Judgment

1. HER HONOUR: These proceedings concern an application by the plaintiff, a maths teacher, for a “working with children check clearance” under the Child Protection (Working with Children) Act 2012 (NSW). That Act prohibits engaging in child-related work without such a clearance. The plaintiff was granted clearance by the Office of the Children’s Guardian in December 2013. However, in October 2014, he was charged with sexual offences relating to a female student at the high school at which he taught. The sexual misconduct was alleged to have occurred during private tutoring sessions between the plaintiff and the child which took place outside school hours. As a result of being charged with those matters, the plaintiff became a "disqualified person" within the meaning of s 18 of the Act and his clearance was cancelled.

2. In October 2015, the criminal charges against the plaintiff were dismissed in the Local Court with the result that he ceased to be a disqualified person. He re-applied for clearance shortly afterwards. On 25 February 2016, after conducting a risk assessment in accordance with s 15 of the Act, the Children's Guardian notified the plaintiff that his application was refused on the grounds that it was satisfied he poses a risk to the safety of children. That decision was subsequently affirmed by the New South Wales Civil and Administrative Tribunal: CMD v Children's Guardian [2017] NSWCATAD 150.

3. By these proceedings, the plaintiff appeals from the decision of the New South Wales Civil and Administrative Tribunal. An appeal from that Tribunal to this Court lies as of right on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 17 and Schedule 3, cl 17(1)(a).

4. In the proceedings below and in this Court, the plaintiff and the complainant in the criminal proceedings have been referred to by the pseudonyms CMD and child M respectively. At the outset of the hearing, I made an interim non-publication order in respect of any information that would identify the plaintiff on the basis that to do so could also identify the child (by the connection with the school she attends, at which the plaintiff taught). That is a common feature of these appeals. The position in the present case is in that respect similar to the position considered by Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [7] where his Honour was satisfied that the concern to protect the identity of persons who are alleged to be victims of sexual assaults outweighs the public interest in “open justice” to the extent that it is served by their being identified. I am satisfied that it is appropriate to continue the interim order made in the present proceedings on a final basis, for the same reason.

5. The summons specifies 10 grounds of appeal (one of which is not pressed). Before turning to those grounds, it is appropriate to consider the nature of the function of the Children's Guardian in determining whether to grant clearance under the Act.

Function of the Tribunal under the Act

6. The single object of the Child Protection (Working with Children) Act (stated in s 3 of the 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.”

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

8. In certain circumstances, an applicant for clearance must be the subject of a risk assessment: ss 14 and 15 of the Act. That requirement applied to the plaintiff. As to such a person, s 18(2) of the Act provides:

"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.”

9. In the case of an assessment conducted by the Children’s Guardian, there is a list of consideration to which it “may” have regard set out in s 15(4) of the Act. However, in proceedings before the Tribunal, those considerations are mandatory. Section 30 provides:

“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.”

10. Accordingly, the task for the Tribunal was to determine whether it was satisfied that the plaintiff poses a risk to the safety of children having regard to the mandatory considerations listed in s 30. Only if the Tribunal was satisfied in those terms was it entitled to refuse to grant a clearance to the plaintiff.

Alleged misunderstanding of the statutory task

11. It is convenient to consider grounds 1 and 2 together. Ground 1 is:

“The New South Wales Civil and Administrative Tribunal misunderstood its statutory task by failing to make findings on material questions of fact, including as to what child M’s allegations were and as to what child M’s version of events was.”

12. Ground 2 is:

“The Tribunal misunderstood its statutory task by failing to make findings on material questions of fact, including which conduct alleged by child M it was referring to when it made the finding at [157] of its decision that there was a strong possibility ‘some of the conduct’ in fact occurred.”

13. Those grounds invoke the uncontroversial proposition that a misunderstanding by a tribunal as to its statutory task constitutes an error of law. The plaintiff relied in that context on the remarks of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118:

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute… Moreover, a person affected will obtain relief from the courts if he could show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account.”

14. The plaintiff also relied on the more recent decisions of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71] and FTZK v Minister for Immigration and Border Protection [2014] 88 ALJR 754; [2014] HCA 26 at [25]. Relevantly for present purposes, those decisions hold that a tribunal will fall into error if it fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form.

15. It was common ground in the present appeal that the question the Tribunal was to address was whether it was satisfied that the plaintiff poses a risk to the safety of children (s 18(2) of the Act). The Tribunal articulated the test in those terms and made a finding, on the balance of probabilities, that the plaintiff does pose a real and appreciable risk to the safety of children. The plaintiff contends, however, that a fair reading of the Tribunal's decision reflects a misunderstanding of that statutory task "in circumstances where the Tribunal failed to make findings of material questions of fact as to what child M's allegations were and as to what child M's version of events was."

Statements made by the child

16. In order to test that submission, it is necessary to consider the history of child M’s complaint. Before making any allegation against the plaintiff, she wrote a letter to him dated 16 June 2014 apologising for copying another child's work for a maths assignment. As at that date she was aged 15 years. The plaintiff relies on that letter to place the complainant’s subsequent allegations in the context of her being in trouble with him at school.

17. The allegations of sexual offences first came to light at the school when the child wrote a handwritten letter to her textile teacher (she had previously told other students but that was the first complaint to a member of staff). The evidence established that the letter was written on 15 September 2014. In that letter, by way of explanation for not having completed an assignment, the child said:

"I'm going to tell you the truth because you are one of the closest teachers I have and I trust you a lot. The truth is I have been both physically and sexually assaulted for the past few years."

18. The letter finished with a statement that the child was trying to forgive "those people".

19. The textile teacher raised the matter with the principal who immediately interviewed the child. The material before the Tribunal included typed notes of that meeting. It should be noted that the notes are not adopted by the child. However, it may be accepted that they purport to record words she said to the principal. In light of the importance placed on them by the plaintiff, it is appropriate to set them out in full (emphasis added):

“The principal:   I’ve been given by [teacher] a handwritten note that you have given her. [Teacher] is concerned by what was written in the note and we need to know that you are ok and find out what you are referring to. Is someone at home causing you harm?

The child:   No, it’s someone at school.

The principal:   Is it someone in your class?

The child:   No, it’s a teacher, but I don’t want to get them into trouble. He’s a good man.

The principal:   Can you tell me who you are talking about?

The child:   No, I don’t think I can say his name. Can I say the names of the teachers and you say yes to the one it is?

(The principal begins to mention male staff names, when CMD is named the child speaks)

The child:   Yes it’s him but he’s a good man. He really loves his wife and child. I’ve tried very hard to forgive him but it’s affecting me, I just can’t put it down.

The principal:   Is this something that happened at school?

The child:   No, he was my tutor. He worked it out with my mum privately it was a secret.

The principal:   So where did he tutor you?

The child:   At first in my house but it was too noise [sic], so we would go to my church or a park.

The principal:   Did your parents know about this tutoring?

The child:   Yes, but they don’t know about any of this. I don’t want to ruin his career. He has a family. I don’t feel worth all the trouble this will cause.

The principal:   I have to contact your parents. I will need you to stay here with [teacher] while I make a few phone calls.

(The principal left the room)”

20. I note that the question underlined above is attributed (in the original) to the child but must have been said by the principal.

21. The principal called the child's parents to the school and took further notes of her meeting with them. Those notes appear to be incomplete. They include the following exchange:

“The principal:    [no question recorded]

The child:   The first time was when I was at his house. He removed my shirt and touched me. I stopped him. The second was in a park.

The child’s mother:   I do remember you meeting him at a park.

The child’s father:   [no statement recorded]

(Interview stopped as New South Wales Police arrived)”

22. On 26 September 2014 the child participated in a lengthy interview with two officers from Penrith JIRT (Joint Investigation Response Team). One was an officer from the Department of Family and Community Services. The other was a police officer.

23. On 13 July 2015, the child participated in a second interview with a different police officer. No representative of the Department of Family and Community Services was present during the second interview.

24. The criminal proceedings commenced in the Magistrate’s Court on 6 October 2015. The prosecutor played the recordings of the two JIRT interviews as the child's evidence in chief. She was then cross-examined at length over two days (on 6 and 8 October 2015). The Magistrate gave his judgment dismissing the charges on 9 October 2015.

Statements made by the plaintiff

25. The plaintiff had up to that point exercised his right to silence. In support of his subsequent application to the Children’s Guardian, he swore a 4-page statutory declaration dated 15 November 2015 stating that he was found not guilty "due to the complainant's evidence being unreliable and inconsistent which demolished the complainant's credibility".

26. The Children’s Guardian gave notice of its refusal to provide clearance on 25 February 2016.

27. The plaintiff’s application for review of that decision was heard by the Tribunal on 10 and 11 October 2016. The plaintiff swore two affidavits for the purpose of that hearing. The first was dated 15 June 2016 but that gave no detail in response to the child's allegations, stating only "I have always absolutely denied all the allegations made against me by [child M]. I never touched her inappropriately. I have never said anything inappropriate to her”.

28. The plaintiff’s second affidavit was sworn on 4 October 2016 and appears to have provided the first detailed response by the plaintiff to the specific allegations made by the complainant. In its reasons for decision, the Tribunal noted that that affidavit was not served until 7 October 2016, 3 days before the hearing. In that affidavit, the plaintiff (among other things) described an incident in his third tutoring session with child M (at her church) when she tried to massage him on the shoulders. He also accepted that, after that incident, she had twice been inside his house, on the occasion of the fourth and fifth tutoring sessions.

29. The hearing before NCAT commenced on 10 October 2016. The Children's Guardian relied on the written record of child M’s several statements and (unsurprisingly) did not call her to give oral evidence. The plaintiff gave evidence and was cross-examined.

Structure of the Tribunal's Reasons

30. The Tribunal gave its decision on 12 May 2017. In the reasons for decision, the Tribunal correctly identified that the task was to determine whether the plaintiff poses a risk to the safety of children. The Tribunal also noted the list of mandatory considerations in s 30 of the Act.

31. The Tribunal referred to the decision of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 where his Honour said (at [13] to [17]):

“13. The test in s 18(2) of the Act requires a decision maker to consider whether a person “poses a risk to the safety of children”. “Risk” in this context excludes “fanciful or theoretical risk” and instead requires a decision maker to determine “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”: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33].

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

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

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

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

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

32. In the present hearing, the plaintiff drew the Court's attention to the remarks of Davies J in Children's Guardian v CKF [2017] NSWSC 893 at [56] where his Honour doubted the correctness of the statement in [16] of that judgment that, if “a lingering doubt or suspicion remains”, that should count against the applicant for clearance. Justice Davies said:

“With great respect to Harrison J and to the Tribunal in BSR, there is no basis for any conclusion that an open finding or "lingering doubt or suspicion" counts against the defendant. It is simply a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children."

33. It is not necessary to attempt to resolve any difference between those approaches in the present case as the Tribunal here did not purport to act on the strength of a mere “lingering doubt or suspicion”.

34. Subject to that nuance, the plaintiff accepts the correctness of the analysis of Harrison J in CFW. Importantly, the principle common to those authorities is that the Tribunal would not make an adverse finding to an applicant unless satisfied that he or she poses a real and appreciable risk in the sense explained in Commission for Children and Young People v V. The burden of the plaintiff’s submission was that, in the context of the present case, the performance of that task required the Tribunal to make findings as to the material aspects of the child's allegations and to resolve the alleged inconsistencies in her accounts.

35. Returning to the structure of the Tribunal’s reasons, the Tribunal then addressed each of the s 30 matters under separate headings. Section 30(1)(a) required the Tribunal to consider "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". The Tribunal addressed that issue under the heading "Seriousness of the matters that caused a refusal of a clearance".

36. It was in that section of the reasons that the Tribunal set out the child’s version of events. The version set out in the reasons was “the summary of [the JIRT interview on 26 September 2014] contained in the records of the Department of Family and Community Services” (see paras 40 and 41 of the reasons). In the same section of the reasons, the Tribunal noted that all charges were dismissed by the Magistrate.

37. The author of the summary is not identified in the Tribunal's reasons and counsel for the plaintiff submitted that its source was unclear. However, it is expressly described as a summary of the JIRT interview on 26 September. As already noted, an officer from the Department of Family and Community Services conducted that interview. The full transcript of the interview runs to some 69 pages. I have compared the summary with the full transcript and am satisfied that it is drawn faithfully from that material. Because of the importance assumed by the Tribunal's treatment of the child's allegations in its reasons for decision, it is appropriate to set out the summary in full (as it appears in the Tribunal’s reasons), as follows:

“In 2012, [child M] was in year 8. In the latter half of 2012 [child M] and another school friend were helping [CMD] clean his classroom. During this time [child M] sustained a graze and bruise to her leg by hitting it on furniture. [CMD] said to have felt bad for [child M] sustaining her injury that he "wanted to make it up to her", [CMD] had a conversation with the [child M]'s mother telling her of the injury sustained to [Child M] in the classroom. [CMD] offered to tutor [child M] after school. After much discussion, [child M]'s mother allowed [CMD] to tutor [child M] at their family church. The tutoring commenced a short time after.

In June 2013, whilst the school was still in term, [CMD] attended the home residence of [child M] at [address] after school in his small black motor vehicle and collected her for tutoring for the half yearly exams. At this time [child M]'s mother was home. This tutoring session occurred at the home residence of [CMD] [address of CMD]. This was the first time [CMD] collected [child M] from her home residence and conveyed her to his home residence.

[Child M] entered [CMD]'s motor vehicle and sat in the front passenger seat. As they drove away from [child M]'s house, he told [child M] to lay down, [child M] laid her seat back and laid down. [CMD] explained to [child M] that he wanted her to be hidden as they were driving through an area with lots of school people.

Upon arrival at [CMD]'s residence, he led [child M] into the lounge room and she noticed there was no one else at the residence. [child M] removed her text books from her bag and commenced studying. [CMD] was sitting in the lounge room next to [child M], they were studying and talking. [child M] stated she did not like her body because she feels like she is overweight. [CMD] rubbed the side of her torso and said 'You're good don't worry". [CMD] stated he was going for a shower as this day was rather hot. [child M] continued studying whilst [CMD] was in the shower. When [CMD] finished his shower he walked into the lounge room wearing a t-shirt and beige shorts and instructed [child M] to have a shower, [child M] was reluctant to do so but because he was an adult she listened to what he said. [CMD] escorted [child M] into the bathroom, [child M] closed the door and began showering. [child M] was in the shower for a short period of time before [CMD] said from the outside of the bathroom knocking on the door "You're taking too long. If you don't hurry up I will come in", [child M] said "No". [Child M] explained that she barely had the shower running when [CMD] was telling her to hurry up. [Child M] was scared and wiped down her body with a towel and quickly got dressed in her uniform. When [child M] exited the bathroom [CMD] was sitting on the lounge in the lounge room.

[Child M] walked into the lounge room and sat beside [CMD], who was on his laptop and she began studying. [CMD] asked [child M] for a massage which [Child M] agreed to. [Child M] massaged his shoulders on top of his clothes for a short time before returning to her studies. This made [child M] feel uncomfortable. [CMD] said for [child M] to have a break. [CMD] instructed [child M] to lay down on the floor, which she did. [CMD] also laid on the floor. [CMD] asked [child M] to move closer to him however she refused. [CMD] asked [child M] to move closer to him several times but [Child M] refused on each occasion.

After a period of time, [CMD] got up and said he needed to make food for his son who was at childcare. [CMD] and [child M] went into the kitchen to make food for his son. [CMD] instructed [child M] to sit on the kitchen bench, which she did. [CMD] then hugged [child M] however she did not respond. [CMD] then told [child M] to hug him, which she reluctantly did because she felt forced. [CMD] hugged [child M] and a few more times in the kitchen. [CMD] put food into the container and they left his residence and collected his son from childcare.

When [CMD] picked up his son from childcare, [child M] sat in the back seat of the car feeding [CMD]'s son, [CMD] complemented [child M] on how good she was with is son. [CMD]'s mobile phone rang and it was his wife. [CMD] told [child M] to be quiet. [CMD] had a conversation with his wife on the phone. [CMD] dropped [child M] back at her home.

Approximately 1- 2 weeks later, in the last week of the July school holidays, [child M] remembers this being a weekday, possibly Wednesday 10 July 2013, [CMD] contacted [child M]'s mother and asked whether he would be able to tutor [child M] on this day. [CMD] told [child M]'s mother they would be studying at a park with other students, [child M]'s mother agreed. About 2:00pm [CMD] attended the home residence of [child M] in his small black 4 door car, possibly a Toyota and collected her. [child M] was wearing a green t-shirt and jeans. [Child M] entered the front passenger seat of [CMD]'s vehicle, [CMD] turned on the air conditioner as it was a hot day. [CMD] said "maybe we should go to the beach and study there". [CMD] instructed [child M] to lay her seat back and stated that she needed to lay down because he wanted her to be hidden as they were driving through an area with lots of school people.

When they arrived at [CMD]'s residence, he made a comment about the mess of his house / yard due to weeds. Once entering the residence [child M] realized that no-one else was home. [CMD] escorted [child M] into the lounge room where she commenced studying. About 10 minutes later [CMD] complained of a sore back and asked [child M] for a massage, [child M] agreed. [CMD] laid face down on the lounge room floor fully clothed, [child M] was sitting beside [CMD] massaging him. After a moment [CMD] told [child M] that her massaging was uneven and instructed her to sit on his lower back / bottom with her legs on either side of his hips, in a straddling position, [child M] reluctantly did this and continued to massage for a short period.

After [CMD]'s massage was complete, he said "now it's your turn". [CMD] laid [child M] on the floor face down. [CMD] straddled [child M] and began massaging her back on top of her clothes. [CMD] massaged her shoulders, went down to her bra and lifted up the bottom of her shirt. [CMD] Instructed [child M] to remove her shirt which she did. [CMD] continued massaging [child M] on her back and asked whether he could remove her bra. [child M] did not say anything. [CMD] then unclipped her bra leaving her back exposed. This action made [child M] feel violated. [CMD] said whilst massaging [child M]'s back and the side of her breasts "You don't know what I could possibly do to you". After this comment, [CMD] left the room, [child M] quickly got up and got dressed.

[CMD] walked back into the lounge room and sat down next to [child M] and put his hands up to his face to hold his head. [Child M] knew [CMD] felt he did something wrong. [CMD] apologised and said "you don't know what I could have done to you", [CMD] tried to kiss [child M]. [child M] told him to stop and said "No I don't want to". [CMD] said "Why don't you want it" he learned [sic] forward and attempted to kiss [child M] but she moved her head backwards, [CMD] said "Don't you want it?" [child M] said "No".

About 3:00pm, [CMD] and [child M] left the house and picked his son up from childcare. [Child M] was in the backseat of [CMD]'s motor vehicle feeding his son. [CMD] kept saying I'm sorry. I'm sorry for what I have done". [Child M] states [CMD] kept apologising. [CMD] dropped [child M] back to her home. When they arrived [CMD] got out of the car and had a conversation [child M]'s parents.

At no time did [child M] tell her parents about either incident occurring, however after this incident [CMD] ceased tutoring [child M].

When school returned the following week, [CMD] also had a conversation with [child M] apologizing for what he had done and told her not to tell another otherwise he would get into a lot of trouble.

[Child M] said she wouldn't tell anyone. She did not want him to get into trouble and she didn't want people to talk.

Early 2014, [child M] disclosed these incidents to her school friend.

On 14/10/14, [DOCS Officer] made phone contact with the POI [CMD]. [CMD] declined to speak with Community Services until he should legal advice from his solicitor. On the following day 15/10/14, [CMD] made telephone contact with [DOCS Officer] and advised, based on legal advice, he would not speak with Community Services in relation to the allegations. [CMD] was subsequently informed that he would be listed as a PCH on the CS database.

There is sufficient evidence for this matter to be substantiated.”

38. The Tribunal proceeded to address each of the s 30 considerations in turn, under different headings. The evaluation complained of by the plaintiff in grounds 1 and 2 appeared under the heading "Any other matters the Children's Guardian considers necessary", which is the mandatory consideration listed in s 30(1)(k) (the reference to the Children's Guardian in that section appears to have been lifted from the equivalent list in s 15(4) of the Act, which applies at the stage when the application is being considered by the Children’s Guardian).

39. Under that heading, the Tribunal addressed three topics.

40. First, the Tribunal compared the experience of the child as a witness with the experience of the plaintiff as an accused person in a criminal proceeding. The Tribunal noted that the child made the allegation to a teacher in a letter written on 15 September 2014; that she had already made disclosures to four of her school friends previously; that over the next two years until the conclusion of the criminal trial in October 2016, she had interviews with the deputy principal, two electronically recorded interviews with police, a lengthy recorded interview with JIRT and "no doubt, questions by family members, fellow students, relatives and others". The Tribunal noted that at the criminal trial she was in the witness box for the best part of two days and was extensively cross-examined.

41. The Tribunal noted that, at the end of the criminal case, the Magistrate held that there was a prima facie case but that the evidence could not establish the charges beyond reasonable doubt. It was noted in that context that the Magistrate had found her statements, including her evidence at the trial, to be "seriously flawed with vagueness, inconsistencies and falsities". In assessing that finding, the Tribunal remarked that the child's recollection related to events that had happened more than two years earlier at a time when she was only 15 years of age and concluded that the extensive range of the allegations and disclosures she had made and the numerous and lengthy interviews she had experienced "could have contributed to that".

42. The Tribunal proceeded to compare that experience with the experience of the plaintiff, who had declined to be interviewed by police or to make a statement, declined to be interviewed by the Department of Family and Community Services, declined to be interviewed by the JIRT team and was not required to give evidence at his criminal trial.

43. The Tribunal further noted that the plaintiff had initially provided only a four-page statutory declaration to the Children's Guardian asserting that the allegations were "entirely fabricated and unfounded", maintaining his innocence (indeed asserting that he had "been found innocent") and otherwise setting out background as to his working history and his belief that the decision of the Children's Guardian was wrong. The Tribunal noted that it was only shortly before the hearing that the plaintiff had filed his 9-page affidavit addressing the allegations. The Tribunal noted that the plaintiff was cross-examined for less than three hours. It noted aspects of his account which were evidently of concern to the Tribunal including his acceptance that he took the child to his home on the fourth and fifth tutoring occasions when no adult or child other than his infant son was present and without the consent of either of the complainant’s parents. There was a discussion of his awareness of the Staff Code of Conduct (which prohibited teachers from tutoring outside the school without informing the principal) and the plaintiff’s response to the child’s alleged attempting to massage him. The Tribunal concluded that section of the discussion by expressing the view that, even two years after the allegations were first raised, the plaintiff "does not have a good understanding of what is involved in professional boundaries for teachers and the reasons for them". The Tribunal noted that the Magistrate had found a prima facie case; that the Department of Family and Community Cervices had found that some of the allegations were "substantiated"; that the JIRT team had found that some of the allegations were substantiated and that the applicant had not fully complied with his obligation under s 27 of the Act to disclose to the Tribunal any matters relevant to the application given that his 9-page affidavit was “very late” and provided “very limited disclosures, and explanations”.

44. The second topic addressed under the heading "Any other matters the Children's Guardian considers necessary" was a list of alleged breaches of professional boundaries presented by the Children's Guardian as part of its case.

45. The third was the different versions given by the child and the plaintiff concerning the fourth and fifth tutoring occasions. The structure of the reasoning that followed was to set out "child M's version" and "CMD's version" as to each of those tutoring sessions. The plaintiff submitted that the vice of that approach was that there was no single "child M's version" in relation to any of the tutoring sessions, including the fourth and fifth. He submitted that the Tribunal had before it multiple conflicting accounts of the evidence of child M in relation to a number of aspects of her evidence and that the Tribunal was required to make factual findings as to what it concluded the child's version in fact was before it could compare that version to the plaintiff's version.

46. The plaintiff submitted that, in elevating one version of child M's evidence to the status of findings without a reasoned basis to do so, the Tribunal fell into jurisdictional error. The plaintiff relied in that context of the decision of Adamson J in BVT v Office of the Children's Guardian [2016] NSWSC 1169 at [58]. That was a very different case from the present. The ground upheld by her Honour at [54] to [59] was that the Tribunal had mistaken the effect of the plaintiff’s plea of guilty, regarding it as an acceptance of the police facts as the proven factual circumstances surrounding the offence and acceptance of the other witness statements obtained by police. The full sentence in the paragraph referred to is:

"However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff’s plea."

47. That is not the kind of error asserted here.

48. In my view, the plaintiff’s ground 1 misconceives the import of the Tribunal's reasons. The burden of the plaintiff’s argument is that, in its discussion of the two versions, the Tribunal elevated the child's version (as recorded in that passage of the reasons) to findings of fact without any analysis of the alleged inconsistencies with other versions given by her. I do not think that is correct. Rather, the structure of that discussion is to set out the child's version (drawn from the JIRT interview), to set out the plaintiff's version (drawn from his affidavit) and to discuss each. Although the Tribunal clearly took the record of the JIRT interview as the child's "version", I do not think it found that version to be the fact. It was simply convenient, and appropriate in my view, to treat that version as, in effect, the complainant’s deposition or statement of evidence.

49. In the analysis that followed, the Tribunal faithfully applied the approach explained by Harrison J in CFW set out above. The Tribunal was not able to find on the balance of probabilities that any of the complainant's complaints about the plaintiff's conduct were proved. That conclusion was expressly based on “the problems with child M’s credibility”. In that circumstance, there was no need at that stage to analyse the inconsistencies identified on behalf of the plaintiff; it was accepted that they were such as to preclude acceptance of the allegations on the balance of probabilities. That determined stage one of the three-stage analysis explained by Harrison J.

47. However, turning to the second stage, the Tribunal was equally unable to conclude that any of the allegations were on the balance of probabilities false. That was an evaluative judgment and the reasons given for it were duly brief.

48. The decision accordingly turned on the determination of the third stage Tribunal concluded that there was a strong possibility that “some of” the conduct the child alleged occurred on the fourth and fifth tutoring occasions. As Harrison J explains, the determination of that stage does not require proof on the balance of probabilities that the relevant conduct occurred. That approach is drawn from the approach approved by the High Court in M v M (1988) 166 CLR 69; [1988] HCA 68 to the assessment of risk to children in the context of Family Court proceedings. As the High Court explained in the passage from M v M quoted by Harrison J set out above, the concern in that context is with the assessment and evaluation of likelihoods or possibilities of events or occurrences which, if they came about, would have a detrimental impact on a child’s welfare.

49. It follows, in my view, that the central thesis of the plaintiff’s argument in support of grounds 1 and 2 is misconceived. Having concluded that the allegations were neither probably true nor probably false, it remained necessary for the Tribunal to consider whether the plaintiff poses a real and appreciable risk to children. For that purpose, the Tribunal was not required to make positive findings resolving the alleged inconsistencies in the complainant’s evidence. Had it been able to do so, it would have been able to determine the application on the basis that the allegations were either probably true or probably false.

50. In determining this issue, I have been mindful of the limited nature of this appeal. The Court is not to engage in a review of the merits of the Tribunal’s decision. However, the way in which grounds 1 and 2 were framed necessary required consideration of the content of the complainant’s evidence and the alleged inconsistencies. For that purpose, I have read the whole of the record of the complainant’s evidence and the whole of the plaintiff’s evidence before the Tribunal.

51. The plaintiff’s argument holds that, had the alleged inconsistencies in the complainant’s versions been analysed in detail, the Tribunal could not rationally or reasonably have reached the conclusion that the plaintiff poses a real and appreciable risk to the safety of children. The plaintiff placed significant weight in this context on the notes of interviews with the principal as separate versions given by the child. Those notes do not have the status of a statement by the child. They were not adopted by her. But, even assuming she said the words attributed to her in the notes, it is by no means clear that there is a patent inconsistency as to the place where any sexual misconduct occurred.

52. The plaintiff contended that she initially said she was sexually assaulted on one occasion in a park and later denied that. That alleged inconsistency is by no means clear. The principal’s notes appear to record the child saying she had been tutored in the park but the position is not beyond doubt. Her mother appeared to have some recollection consistent with that but it is not clear whether that was based on direct observation or a recollection as to what she was told. Importantly, the plaintiff himself asserted that they went to a park; that was an important feature of his explanation as to how long she was inside his house alone with him and his child.

53. In her evidence in the criminal proceedings, the complainant gave the following evidence which is emphasised by the plaintiff:

“Do you recall that on that – the next occasion after the church what occurred was that [CMD] met you and your mother at the shops near the School? - - - Yes.

And it was discussed there that you would have a tutoring session not at the church but at the park? - - - Yes.

And you drove with CMD to a park which was located close to [his child’s] childcare centre? - - - Yes, but we never went to the park.

What I am suggesting to you is that you did go to the park and your tutoring session occurred at the park? - - - No.

And it was after that tutoring session that you went to pick up his [son]? - - - We went to pick up his [son] but never – but we never studied at the park.”

57. I do not think that evidence establishes the kind of inconsistency on the strength of which the Tribunal could have been satisfied that the allegations were probably false. Other aspects of the child’s evidence were compelling. Some of her allegations were admitted (such as the fact that the applicant took her to his house). I do not see this as a case in which the allegations could have been dismissed out of hand.

58. Ground 2 focuses on the tribunal's finding at [157] as follows:

“The Tribunal has concluded that there is a strong possibility that some of the conduct child M alleged occurred on the fourth and fifth tutoring occasions in CMD's home did in fact occur."

59. The error is alleged to consist in the failure to make a finding of fact as to which of the conduct alleged by child M in fact occurred on those occasions. But the Tribunal did not find, and was not required to find, that any particular conduct “in fact occurred”. The plaintiff noted that such error might be labelled in different ways, as occurred in FTZK (where the error was labelled as illogical reasoning which could also be characterised as taking into account an irrelevant consideration by French CJ and Gageler J at [19]; misconstruing the statutory language by Hayne J at [31] and misconstruing its functions and powers by Crennan and Bell JJ at [97]). The plaintiff submitted as to ground 2 that, whether it is labelled as a denial of procedural fairness, a failure to consider relevant considerations, a misunderstanding of the statutory task or failure to provide reasons, the decision should be set aside.

60. I am not persuaded that error is established. As noted on behalf of the Children's Guardian, the task posed by the statute is to make an assessment of risk. The statute plainly contemplates that, whereas the imposition of a criminal penalty requires proof of a specific allegation beyond reasonable doubt, it is enough to disqualify a person from clearance under the Act that there exists a real and appreciable risk to the safety of children. That is an evaluative judgment. It is to be undertaken in a very different context from the assessment of the allegations in the criminal context, most importantly including the fact that the applicant has a statutory duty to disclose all relevant information. I do not see any conceptual difficulty with the proposition that a tribunal might fail to be satisfied on the balance of probabilities as to whether any specified act occurred and yet hold a sufficiently strong apprehension concerning whether any of the conduct might have occurred as to be satisfied that the person in question poses a real and appreciable risk to the safety of children. That is the third category of case explained by Harrison J based on the approach approved by the High Court to Family Court matters where the question of risk arises. It is an approach which unashamedly prefers the safety of children to all other considerations. To hold that the Tribunal could not be satisfied that a person poses a risk to the safety of children without making firm findings as to the occurrence of particular conduct specified with the particularity of an indictment would undermine that protection.

61. The Act puts the safety of children above all other considerations. So much is made plain by s 4 of the Act. That object is served by the requirement under s 27(4) that an applicant fully disclose to the Tribunal any matters relevant to the application, which the Tribunal held did not occur in the present case. In my respectful opinion, the Tribunal undertook precisely the kind of analysis contemplated by the statute. Grounds 1 and 2 are not made out.

Denial of procedural fairness

62. Ground 3 is:

“The plaintiff was denied procedural fairness because the Tribunal failed to disclose critical issues or factors on which its decision turned and which the plaintiff had no opportunity to deal with.”

63. It is beyond dispute that the plaintiff was entitled to procedural fairness in the proceedings before the Tribunal. The issue is the content of that entitlement.

64. The plaintiff submitted that there were three critical bases upon which the Tribunal concluded that his version of events in relation to the fourth and fifth tutoring sessions should not be accepted and that none of those three matters was put to the plaintiff by the defendant's counsel or by the Tribunal.

65. The first was that the Tribunal concluded that the plaintiff's version of events should not be accepted based on the times established by independent day care records as to when the plaintiff must have collected his son from day care.

66. The Tribunal said at [130]-[131]:

“The childcare records of the day care centre show that he collected his son on Tuesday, 17 September 2013 at 4:30 pm, which is consistent with child M's version of what happened and not consistent with his. The child was collected at 4:40 pm on Tuesday 3rd, and 4:30 pm on Tuesday 10th. The earliest the child was collected in September was 4:00 pm on Tuesday 24th, which was during the vacation.

The Tribunal does not accept that CMD collected his son from day care on the fourth occasion before 4:30 pm. The Tribunal is satisfied on the balance of probabilities that CMD and child M went directly to CMD's home from child M's home, they did not go to the park and they did not collect CMD's child till after they went to CMD's home.

67. It is common ground that the day care records were not put to the plaintiff during cross-examination. However, they were included in the material before the Tribunal, which had been served on the plaintiff in advance of the hearing.

68. The second matter relied upon by the plaintiff is the fact that the Tribunal's conclusion that the plaintiff's version of events should not be accepted was based on its rejection of the proposition that the plaintiff's toddler would have been hungry at a particular point in the afternoon. The plaintiff relied on the fact that he gave evidence as to why the child would have been hungry and was not challenged on that evidence.

69. The third matter relied upon as a denial of procedural fairness was the fact that the Tribunal concluded that the plaintiff's version of events should not be accepted on the basis of its assessment that it would be an unlikely response of a parent, when child M came into the house instead of staying with the toddler in the car, not to go out to the car and bring the child inside or to ask child M to go back outside to stay with the toddler.

70. The Children's Guardian relied on the decision of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 where his Honour stated that s 38(5)(c) of the Civil and Administrative Tribunal Act requires the Tribunal to "take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings”.

71. I accept that the denial of procedural fairness found by his Honour in BKE was of a different order to those relied on in the present case. In that case, the tribunal made a finding that an allegation against BKE in respect of which there had been no criminal conviction was in fact true in circumstances where BKE had no notice that such a finding may be made.

72. The Children’s Guardian noted that the requirement for all matters in issue to be put specifically to a party in cross-examination has been held to be limited in proceedings in an administrative tribunal. The requirement is that the party has reasonable notice and notice of the factual basis of the other side's case and a reasonable opportunity to present his or her case: Sullivanv Civil Aviation Safety Authority [2014] 322 ALR 581; [2014] FCAFC 93 at [45] - [52] per Logan J, [139]-[159] per Flick and Perry JJ.

73. The Children's Guardian noted that the day care records were included within the material served on the plaintiff on 20 June 2016, well in advance of the hearing. The plaintiff’s 9-page affidavit dated 4 October 2016 was provided following the receipt of that material, as were his written submissions dated 9 September 2016. It was further noted that the inconsistencies found by the Tribunal arose from the plaintiff's own evidence given after receipt of that material. The plaintiff gave evidence that he had collected the child at particular times but, inexplicably, did not address the day care records in that context. Further, as noted by the Children's Guardian, some of the evidence concerning the timing of the collection of the child came for the first time in evidence-in-chief in response to questions from the plaintiff's counsel. That issue ought to have been addressed by the plaintiff in accordance with his obligation under s 27(4) of the Act. It was common ground that the child had indeed been inside the plaintiff’s home, as she alleged (that in itself is troubling and plainly called for an explanation). A critical issue in the assessment of the child’s allegations was the period of time for which she was inside the house.

74. The plaintiff relied in this context on the decision of Beech-Jones J in BKE at [70] which it was submitted held that the fact that material had been served in advance of the hearing was immaterial to the obligation to provide procedural fairness. It is necessary to consider the precise finding in that case. His Honour said:

“Nevertheless neither a resort to s 30 of the Working with Children Act nor the service of material concerning the 2000 incident of itself was sufficient to raise the possibility that it would be found that the plaintiff committed an offence for which he had previously been acquitted. A finding to that effect is a severe one and needed to be clearly foreshadowed. Even though the 2000 incident was canvassed at the hearing, the course of that hearing pointed the plaintiff and his legal representative away from anticipating the possibility of such a finding being made. Given the seriousness of such a finding, it could be expected to be plainly put to the plaintiff in cross examination that he intentionally touched his grandson in 2000, or that he would be clearly warned of the potential for such a finding during submissions either by Counsel for the Guardian or by the NCAT member. Yet none of those steps were taken. The discussion about the possible calling of the plaintiff’s wife only reinforces this. It appears to have been directed to ascertaining the basis for the plaintiff’s acquittal but not re-agitating whether he was guilty.”

75. Each case must be considered according to its own circumstances. It would be wrong to elevate those remarks to the status of a principle governing every determination as to whether procedural fairness had been afforded. In circumstances where the plaintiff accepted that child M had been inside his house on the fourth and fifth tutoring occasions, the timing of those visits was an obvious matter for the plaintiff to address. Indeed, as already noted, he had a statutory obligation to do so. In my assessment, far from amounting to a denial of procedural fairness, the Tribunal was entitled to regard the late and inadequate provision of information about those matters as a failing on the part of the plaintiff.

76. As to the Tribunal's assessment of the likelihood of the child being hungry at a particular time and the likelihood of the plaintiff leaving the child unaccompanied in the car when child M came into the house, the Children's Guardian submitted that those are aspects of the Tribunal's assessment of the evidence and were not required to be put to the plaintiff. The Children's Guardian relied in that context on the remarks of Beech-Jones J in BKE at [76] as follows (citations omitted):

“Otherwise NCAT was not generally required to provide a “running commentary” of its assessment of the evidence or the plaintiff's prospects so as to “forewarn ... of all possible reasons for failure” and nor was it required to expose its thought processes or provisional views for comment before making the decision.”

77. At paragraph 52 of the plaintiff’s submissions, five further matters were identified as not having been put to the plaintiff. First, at paragraph 83 of the reasons, the Tribunal said:

"CMD in oral evidence said he stopped tutoring because he considered child M to be "needy" and he was too busy. He conceded that he had previously said that he had stopped the tutoring because she was already well prepared for the exam. But it is possible that he stopped the tutoring because of conduct by him that she later alleged occurred on the fourth and fifth Tutoring occasions."

78. The plaintiff complains that the last sentence was not put to him in cross-examination. As submitted by the Children's Guardian, however, that is part of the Tribunal's assessment of the plaintiff's evidence. In my view, it falls within the scope of the principle stated by Beech-Jones J in BKE set out above.

79. Secondly, at paragraph 97(7) and paragraph 112 of the reasons, the Tribunal recorded the absence of any evidence that the plaintiff obtained or sought the permission of child M's parents to take her to his home or told either of them that he planned to take her there. However, the allegation that the plaintiff took the child twice to his home without the knowledge of her parents was raised in the written submissions of the defendant which were served in advance of the hearing. The submissions said at paragraph 90 D:

“Furthermore, regardless of whether the actual conduct did in fact occur, there are aspects of the circumstances that may rise to a conclusion that the Applicant poses a risk to the safety of children. Those comprise:

…

(d) Taking a student to his home against her parents’ wishes…”

80. That was a glaring problem for the plaintiff. It was not addressed in his affidavit, which was prepared after the respondent’s written submissions. Further, as noted by the Children's Guardian, the lack of relevant evidence on that issue was apparent from the material served. In my respectful opinion, the suggestion that this was an issue which the Tribunal was required to put to the plaintiff (as opposed to being an issue it behoved him to explain) must be rejected.

81. Thirdly, at paragraph 95(17) of the judgment, the Tribunal referred to a written statement provided by the deputy principal of the school to police in which, among other things, she stated that the plaintiff had informed her that the child had written a letter to him saying how bad her home life was. The deputy principal said that she had asked the plaintiff to produce the letter but had not received it.

82. The Children's Guardian noted that the statement of the deputy principal was contained in the material served by the defendant prior to the plaintiff providing his substantial affidavit.

83. Fourthly, the plaintiff relied on the fact that, at paragraph 96 of the Tribunal's reasons, the Tribunal referred to an allegation by child M that there was an occasion after the last tutoring session where the plaintiff came and took her out of class to speak with her privately, "apologising for what he had done" and telling her not to tell anyone else, otherwise he would "get into a lot of trouble". Again, that material was contained within the material served on the plaintiff in advance of the hearing.

84. Finally, the plaintiff relied on the Tribunal's statements at paragraphs 102 and 104 of its reasons where the Tribunal recorded the fact that the mother suggested the coaching should occur in the school library or the local library and that the plaintiff had rejected those options. Again, that material had been served in advance of the hearing.

80. In my assessment, those complaints reflect a misapprehension of the content of the requirement of procedural fairness. I am not persuaded that the plaintiff was denied procedural fairness in this case. Ground 3 is not made out.

Failure to provide adequate reasons

86. Ground 4 is:

“Alternatively or further to grounds 1-3, the Tribunal failed in the duty imposed by s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to set out in its written statement of reasons the reasoning process that led it to the conclusions it made at [157] and [158].”

87. Section 62(3) of the Civil and Administrative Tribunal Act provides:

“A written statement of reasons for the purpose 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 led the Tribunal to the conclusions it made."

88. The ground as framed focuses on the Tribunal's conclusions at [157] and [158], as follows:

“157   The Tribunal has concluded that there is a strong possibility that some of the conduct child M alleged occurred on the 4th and 5th tutoring occasions in CMD's home did in fact occur.

158   On all the evidence the Tribunal finds, on the balance of probabilities, that CMD does pose a real and appreciative risk to the safety of children.”

89. The Children's Guardian relied in this context on the decision of Davies J in Children's Guardian vCKF [2017] NSWSC 893 at [62] to [63] where his Honour noted that the determination whether a person poses a risk to the safety of children (in the way in which that term is understood from Commission for Children and Young People v V [2002] NSWSC 949) is an evaluative judgement. Justice Davies noted as a related point in that case that a careful reading of the reasons demonstrated that the Tribunal had properly had regard to the evidence by identifying the matters which led it to the conclusion is ultimately reached.

90. The plaintiff submitted that the Tribunal had not fulfilled that requirement in the present case. That argument was put in substance as an alternative analysis of the propositions put in support of grounds 1 and 2. For the reasons stated in respect of those grounds, I am not persuaded that the Tribunal failed adequately to explain its reasoning process. As with grounds 1 and 2, the submission assumes that the Tribunal could not be satisfied as to the existence of a real and appreciable risk without making positive findings as to particular events. For the reasons already explained, I do not accept that submission. Ground 4 is not made out.

Irrelevant consideration

91. Ground 5 is:

“The Tribunal fell into error when it took into account an extraneous consideration adversely to the plaintiff, namely, that the plaintiff exercised his fundamental common law right to silence as a suspect prior to and in the criminal proceeding.”

92. The plaintiff relied in this context on s 89(1)(a) of the Evidence Act 1995 (NSW), which provides:

"An inference unfavourable to a party must not be drawn from evidence that the party failed or refused to answer one or more questions… put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence."

93. The plaintiff acknowledged that the Tribunal hearing was not a criminal proceeding but contended that the Tribunal drew an adverse inference against the plaintiff in circumstances where he had a statutory right not to have an adverse inference drawn against him as well as enjoying the common-law privilege against self-incrimination as a suspect.

94. It is beyond dispute that the plaintiff had a right to remain silent in the criminal proceedings and that it would have been an error in the criminal proceedings to take the fact that he did so into account adversely to him. It follows, in my view, that it would also have been wrong, in the proceedings before the Tribunal, to take into account adversely to the plaintiff the fact that he exercised his right to remain silent in the criminal proceedings. However, I do not think that is what the Tribunal did. In my assessment, ground 5 is based on a misconception as to the Tribunal's reasoning.

95. The only purpose for which it was observed that the plaintiff had exercised his right to silence was in drawing a comparison between the respective experiences of the plaintiff and the complainant. The Tribunal observed that, whereas she had been required to give an account of her allegations on many occasions and in different circumstances, including being subjected to lengthy cross-examination in the criminal proceedings, the only account the plaintiff had given was that contained in his evidence before the Tribunal.

96. The burden of the Tribunal's reasoning was that, whereas the complainant had been through many interview processes and had been cross-examined up hill and down dale, the plaintiff had provided only a 9 page affidavit "very late" and had provided "very limited disclosures and explanations".

97. The plaintiff placed particular reliance on paragraph 92 of the Tribunal's reasons which, it was submitted, revealed that the Tribunal had regard to the absence of any statement by the plaintiff to the JIRT team in concluding that the applicant poses a risk to the safety of children. However, as submitted by the Children's Guardian, the paragraph must be read as a whole. The Tribunal said:

“The magistrate found there was a prima facie case at the end of the prosecution evidence. The Department of Family and Community Services upon their investigation had found that some of the allegations were ‘substantiated’. The JIRT team investigation was concluded without any interview or statement by CMD. The team found that some of the allegations by child M were substantiated. These are matters relevant to whether CMD presents a risk."

98. Read in the context of the whole discussion of the different experiences of the child and the plaintiff and their "different exposure in terms of giving evidence", it is clear in my view that the point the Tribunal was making was that three separate authorities had found some substance to the allegations, although the evidence ultimately did not satisfy the criminal standard of proof.

99. I am not persuaded that the Tribunal drew any adverse inference against the plaintiff on the basis that he exercised his right to silence in the criminal proceedings. Ground 5 is not made out.

Failure to have regard to mandatory consideration

100. Ground 6 is:

“In determining the statutory question posed by s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal failed to have regard to mandatory relevant considerations which the Tribunal was required to consider by reason of ss 30(1)(i) and (j) of that Act.”

101. As already noted, s 30(1) of the Act provides a list of mandatory considerations to be taken into account by the Tribunal in determining an application under the Act. The matters listed in s 30(1)(i) and (j) are:

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

…

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

102. The plaintiff submitted that the information given by him within the meaning of s 30(1)(j) included his submissions before the Tribunal as to the alleged inconsistencies in child M's evidence at the trial of the criminal proceedings.

103. In particular, he submitted that, "in adopting what is labelled as ‘child M's version’ and making findings in relation to the fourth and fifth tutoring occasions, the Tribunal did not consider the extensive inconsistencies in her evidence submitted by the plaintiff". As I understood it, the submission went so far as to contend that the Tribunal was required to reconcile each of the alleged inconsistencies in the child's evidence identified in the submissions.

104. In my view this ground is based on a misapprehension as to the scope of s 30(1)(j). The "information" given by the applicant would include his affidavit and the content of any other factual material put forward by him. The Tribunal was of course required to have regard to his submissions as a matter of procedural fairness but I do not think submissions form part of the "information" required to be taken into account under s 30(1)(j).

105. In any event, even if that is wrong, it is clear that the Tribunal did have regard to the inconsistencies identified on behalf of the plaintiff in the complainant's evidence. In my view, as submitted by the Children's Guardian, the tribunal was not necessarily required to resolve those inconsistencies and clearly felt unable to do so. The Tribunal nonetheless accepted that there were inconsistencies and it was on that basis that it concluded it could not be satisfied on the balance of probabilities that any of the child’s complaints was proved to that standard (see paragraph 155 of the reasons for decision).

Remaining grounds of appeal

106. Ground 7 (asserting a failure to apply the Briginshaw standard of proof) was not pressed.

107. Ground 8 is:

“The Tribunal misconstrued or misapplied s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (and thereby failed to discharge the statutory functions and duties conferred or imposed by Part 4 of that Act and s 63 of the Administrative Decisions Review Act 1997 (NSW)) in falling into each or all of the errors alleged in grounds 1 to 7 in determining whether the Defendant posed a risk to the safety of children.”

108. As acknowledged by the plaintiff, that is a "cumulative ground" which builds on the earlier grounds. For the reasons given in respect of those grounds, I am not persuaded that the Tribunal misconstrued or misapplied s 18(2) of the Act. Ground 8 is not made out.

109. Grounds 9 and 10 are:

“9. Further or in the alternative to the above grounds, the Tribunal fell into error on the grounds of Li unreasonableness in concluding that the appellant posed a real and appreciable risk to the safety of children.

10. Further or in the alternative to the above grounds, the Tribunal erred in concluding that the appellant posed a real and appreciable risk to the safety of children on the basis of illogical reasoning.”

110. Ground 9 alleges that the decision of the Tribunal lacked "evident and intelligible justification" and was thus unreasonable in the sense explained by the High Court in Minister for Immigration v Li. The burden of the submission was that the Tribunal essentially found that because the plaintiff had credibility problems, there was a strong possibility that the underlying conduct "did in fact occur" with no positive findings made by the Tribunal that the conduct did in fact occur based on any evidence and without reference to the inconsistencies in the child's evidence in reaching that conclusion. Ground 10 in substance relies on the same analysis, contending that the conclusion of the Tribunal was based on illogical reasoning.

111. For the reasons explained in respect of grounds 1 and 2, I reject that submission. In my assessment, the Tribunal provided cogent reasons for concluding that, although it could not be satisfied as to any particular conduct on the balance of probabilities, there remained sufficient concern based on that which he had explained and that which he had failed to explain to indicate the existence of a risk, if he were allowed to work with children, to their safety.

112. Grounds 9 and 10 are not made out.

113. For those reasons, I am satisfied that the appeal must be dismissed.

‘**********

Amendments

05 November 2018 - typographical error [13]

Decision last updated: 14 November 2018