Office of the Children's Guardian v CFW

[2016] NSWSC 1406

Supreme Court

New South Wales

Medium Neutral Citation:	Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Hearing dates:	15 September 2016
Date of orders:	05 October 2016
Decision date:	05 October 2016
Before:	Harrison J
Decision:	(1) Set aside the orders made by the New South Wales Civil and Administrative Tribunal on 20 April 2016 in CFW v Children’s Guardian [2016] NSWCATAD 76.  (2)    Remit the proceedings to the Tribunal, differently constituted, to be dealt with according to law.
Catchwords:	ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children clearance – whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act – whether Tribunal failed to take into account mandatory relevant considerations – possibility defendant had engaged in relevant criminal or inappropriate conduct – possibility the defendant had intentionally sought out child pornography – whether failure to take into account could have materially affected the decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900
Cases Cited:	BKE v Office of Children’s Guardian [2015] NSWSC 523 BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 CFW v Children’s Guardian [2016] NSWCATAD 76 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 Commission for Children and Young People v V [2002] NSWSC 949 M v M (1988) 166 CLR 69; [1988] HCA 68 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSLWR 527; [2014] NSWCA 105
Category:	Principal judgment
Parties:	Office of the Children’s Guardian (Plaintiff) CFW (Defendant)
Representation:	Counsel: C Lenehan (Plaintiff)   Solicitors: Lea Armstrong, Crown Solicitor (Plaintiff) Linda Rogers Solicitor (Defendant)
File Number(s):	2016/147683
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By its amended summons filed in court on 15 September 2016, the Children’s Guardian seeks orders setting aside a decision of the New South Wales Civil and Administrative Tribunal on 20 April 2016: see CFW v Children’s Guardian [2016] NSWCATAD 76. An order that the matter be remitted to the Tribunal to be dealt with according to law is also sought. The defendant filed a submitting appearance.

2. For the reasons that follow, I consider that each of these orders should be made.

Background

3. In August 2005, the defendant was charged with the offence of possess child pornography under s 578B of the Crimes Act1900. It was alleged that between 2002 and 2004 he had viewed and downloaded prohibited material from various websites. Approximately 400 files were recovered from the unallocated space within the defendant’s computer depicting young children apparently under the age of 16 engaged in sexual acts or in sexual poses.

4. The defendant was not convicted. The magistrate dismissed the charge, holding that although his actions were “very suspicious”, the Crown could not rebut the assertion beyond reasonable doubt that the defendant may have inadvertently saved the images on his computer in the course of downloading adult pornography.

5. Thereafter, in October 2014, the defendant applied for a Working with Children clearance under the Child Protection (Working with Children) Act 2012.

6. The criminal proceedings against the defendant had triggered the risk assessment procedure under the Child Protection Act: see s 14 operating in conjunction with Schedule 1 cl 1(b) and Schedule 2 cl 1(y). The Children’s Guardian notified the defendant that it would be carrying out a risk assessment as required by the Act. In June 2015, the Children’s Guardian refused to grant the defendant a Working with Children clearance. In July 2015, the defendant applied to the Tribunal under section 27 of the Act for a review of that decision. On 6 August 2015, the Tribunal stayed the application of the barring order made by the Children’s Guardian and later set aside the decision of the Children’s Guardian and ordered it to grant the defendant a Working with Children clearance.

The legislative scheme

7. The object of the Child Protection Act is to protect children by requiring persons engaged in child-related work to obtain a clearance, and by not permitting certain persons to engage in child-related work. 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. Section 18(2) of the Act provides as follows:

“(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.”

9. Section 30(1) of the Act provides relevantly as follows:

“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,

…

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

…

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

10. Section 63(1) of the Administrative Decisions Review Act 1997 is in these terms:

“63 Determination of administrative review by Tribunal

(1)    In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)    any relevant factual material,

(b)    any applicable written or unwritten law.”

11. Clause 17(1) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 provides as follows:

“17 Certain decisions to be appealed [sic] directly to Supreme Court

(1)    A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision:

(a)    a Division decision for the purposes of the Child Protection (Working with Children) Act 2012,

…

(2)    The Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:

(a)    an order affirming, varying or setting aside the decision under appeal,

(b)    an order varying the decision under appeal,

(c)    an order setting aside the decision under appeal and, if it considers appropriate, making a decision in substitution of that decision,

(d)    an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.

(3)    Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.”

Grounds of appeal

12. The grounds upon which the Children’s Guardian appeals to this Court are as follows:

1. The Tribunal misconstrued or misapplied s 18(2) of the Child Protection (Working with Children) Act 2012 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 in that it put aside matters it considered to be “open” in determining whether the defendant posed a risk to the safety of children.

2. Alternatively or further to ground (1), the Tribunal failed in the duty imposed by s 62(3) of the Civil and Administrative Tribunal Act 2013 to set out in its written statement of reasons the reasoning process that led it to the conclusions it made regarding the matters identified in ground (1).

3. In determining the statutory question posed by s 18(2) of the Act, the Tribunal failed to have regard to mandatory relevant considerations, being:

1. the possibility that the defendant had engaged in the criminal or inappropriate conduct identified by the Tribunal at [103] of its reasons; and

2. the possibility that the defendant had intentionally sought out child pornography.

Ground 1

The statutory test

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.

The Tribunal’s decision

18. The Tribunal in the present case purported to apply the approach set out in M v M and BKE at [98] as follows:

“[98] In our view the cases of M v M … and … BKE v Office of the Children’s Guardian and Anor … have applicability to aspects of the fact finding role of the Tribunal in the current proceedings. Significantly, the preliminary issue is whether the Tribunal can be satisfied that a particular allegation on the available evidence had or had not been made out, [and if not] whether the Tribunal could still be satisfied that the applicant did or did not pose a real and appreciable risk.”

19. If the Tribunal had in fact applied that approach it would have conformed to what was said in M v M. The Tribunal proceeded at [103] to [108] to say this:

“[103]   In making a finding as to whether the criminal allegations occurred, (to the civil standard) we find that we are unable to make a positive finding. In doing so we find that the evidence in the form submitted at the hearing is (in our view) not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations did not amount to any inappropriate conduct or have no truth, (or in the alternative – have truth), but rather that we are unable to positively determine them, in that we are required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open.

[104] In any event, we are required to determine notwithstanding the absence of any finding, whether the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

[105] In our view the applicant was a very poor witness, in that his answers were very limited in their ability to impart information to the Tribunal as the ultimate finder of fact in the proceedings. The applicant appeared completely unprepared or unable to fully understand many of the questions put to him, and was uncertain and somewhat disorientated in his answers. The difficulties of the applicant’s oral evidence was to an extent partly conceded by all legal representatives, however the Tribunal notes that he attempted to answer all questions, and did elect to give evidence before the Tribunal. The Tribunal also notes the applicant’s submissions concerning the passage of time since the conduct that he was questioned about during the hearing.

[106] Notwithstanding these problems outlined above, in our view, there was no evidence that the applicant was untruthful or deliberately evasive in his answers, and in that regard has (in our view) satisfied the requirement of section 27(4) of the Act.

[107] We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons.

[108] In our view, even though we have determined that a positive finding cannot be made in respect of the alleged conduct which would point to risk, on the evidence and material before us, the applicant does not currently pose a real and appreciable risk to the safety of children and young persons. In our view the risk is neither real, nor appreciable, and neither is there sufficient evidence before us to the requisite standard that there is any real likelihood of future risk.” [Emphasis added]

20. Although this analysis is arguably formulated in terms of the second proposition identified in M v M, the Tribunal does not expressly address what flowed from its conclusion that the question of the veracity of the allegations made against the defendant “remains open”. The Tribunal was obliged to consider questions of risk that may have been indicated by all of the facts, including the facts and circumstances surrounding the proceedings for the alleged offence that triggered the original assessment requirements, and any doubt or suspicion as to such matters. So much follows from the fact that the Tribunal was equally unable affirmatively to be satisfied that the relevant allegations were not true.

21. Even though the Tribunal observed that the defendant was “a very poor witness”, it nevertheless considered that “there was no evidence that the applicant was untruthful or deliberately evasive in his answers”. On that basis, it concluded that the defendant had satisfied “the requirement of section 27(4) of the [Act]”, namely that he was required to disclose fully to the Tribunal any matters relevant to the application.

22. The Tribunal expressed its conclusion in the following paragraphs:

“[109] For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act … we reach the following conclusion.

[110] The evidence and material referred to in these reasons does not establish that the applicant currently poses a real and appreciable risk to the safety of children.

[111] The evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

[112] We note that the safety, welfare and wellbeing of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

[113] In our view having regard to all of the material before the Tribunal, to the requisite standard the applicant does not pose a risk to the safety of children.

[114] It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children’s Guardian.”

23. In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the “possibility” of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant “remain[ed] open”, the Tribunal should then have asked itself how that “open” conclusion, together with all of the other material before it, bore upon the question of risk.

24. That was the point made by Buss JA in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [85], where his Honour said in the context of the equivalent Western Australian legislation:

“[85] Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an ‘unacceptable risk’ of the kind I have described… The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an ‘unacceptable risk’, to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.”

25. It is timely to recall how the High Court approached the issue in M v M. At 71-2, the High Court said this:

“Central to the case are the wife’s allegations that the father has sexually abused the child and that the child’s welfare will be put at further risk. At first instance Gun J. was not satisfied that the father had so abused the child. On the other hand, he was not satisfied that the father had not so abused the child. He considered that there was a possibility that the child had been sexually abused by the husband and that in the interests of the child he should eliminate the risk of such abuse by denying access to the husband. He also rejected the suggestion that the husband should have supervised access. In the Full Court the majority concluded that Gun J. applied the correct principles and that there was ample evidence to support the findings which he made. Nicholson C.J. dissented on the ground that an order for access should not be refused because there was a mere possibility that access would expose a child to sexual abuse. He considered that ‘[t]here must be a real or substantial risk of such abuse occurring as a matter of practical reality.’ His Honour would have referred the matter back to the primary judge for further consideration because he had not applied the correct test.”

26. At 74 the High Court identified the “critical passage” in the primary judge’s judgment in this way:

“The critical passage in the primary judge’s judgment dealing with the standard of proof is as follows:

‘[M]y task is to evaluate the evidence adduced and decide whether or not I am satisfied on the balance of probabilities that the husband has sexually abused the child. If I am satisfied that the husband did sexually abuse the child, I would discharge the order for access. If I am not satisfied on the balance of probabilities that the husband has sexually abused the child but I am not sure that he did not do so, in other words if I have lingering doubts, it is my view that I should discharge the order for access on the ground that no risk or possible risk should be taken which would endanger the welfare of the child’.”

27. What are arguably the critical passages in the High Court’s judgment are to be found at 77 as follows:

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

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

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

28. The High Court concluded as follows at 78:

“In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.”

29. The Tribunal in the present case cited a passage from the decision of Beech-Jones J in BKE at [33] as follows:

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

30. There is nothing in the Tribunal’s reasons to indicate that it approached its task in the manner identified in these authorities. Its “open conclusion” suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or “inappropriate conduct”. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. This is particularly so having regard to the Tribunal’s earlier observation at [97] that the Local Court found that the defendant’s actions were “very suspicious”, notably an observation that the Tribunal did not question.

31. In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be “open”. In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act.

Materiality of the errors identified in ground 1

32. The Tribunal’s errors were also of significance to the conclusions that it reached and could not be said to be immaterial. That follows from the fact that they bore directly upon the central question of risk posed in s 18 of the Act. Moreover, at least in respect of some crucial matters, the Tribunal appears to have erroneously foreclosed further analysis on the basis that the open finding was the end-point of any relevant inquiry.

33. For example, it was common ground before the Tribunal that the defendant had at least downloaded and viewed “prohibited material”: see at [41], [43], [90] and [91] of the Tribunal’s reasons. The primary issue between the parties was the question of his intention to do so. A substantially similar, but slightly different, issue arose in the proceedings before the Local Court. The key question there was said by the magistrate not to be whether the applicant had viewed child pornography, observing that it “is not an offence to view a child pornography website” and that it “only becomes an offence when the material is saved, downloaded or stored on a computer”.

34. The Tribunal mischaracterized the Local Court’s findings at [97] in these terms:

“[97] In the current matter the Court was unable to be satisfied that the applicant was the one who placed the images in the unallocated space of his computer. The Magistrate referred to the fact that the prosecution was based on a circumstantial case, and that whilst the actions of the defendant (this applicant), were very suspicious, the Crown could not rebut the assertion that the images may have been saved to unallocated space on his computer by another person (based on the evidence before the Court).”

35. The Local Court actually said that the asserted involvement of a third person was “difficult to accept” as it would also mean that the same “mysterious person” supplied the defendant’s correct credit card details. The Local Court dismissed the charge because the Crown could not rebut the assertion that the defendant may inadvertently have saved the images found on the unallocated space on his computer in the course of downloading adult pornography. There was uncontradicted expert evidence that supported that possibility.

36. In her written submissions, counsel for the Children’s Guardian made specific mention of the different nature of the issues that confronted the Tribunal in comparison to those that arose in the Local Court. She emphasised that there were

“more than 540 child pornography pictures found on the computer and the [defendant] had visited websites where those pictures could be obtained over a two year period. He opened files knowing that those pictures would be available in those files. For the purposes of the criteria for [paedophilia] it is irrelevant whether or not the [defendant] meant to download those files, as the police needed to prove, or whether he merely intended to look at them.”

37. That was important because the defendant’s expert had accepted that if he was intentionally seeking out child pornography, it would raise “concerns” and would have “change[d] the situation somewhat” in terms of her determination of risk. Counsel for the Children’s Guardian specifically put her case on that basis.

38. Clearly, such matters were central to the statutory question of risk confronting the Tribunal. Notwithstanding that fact, the Tribunal would appear to have put all such matters aside by reason of its inability to make any relevant “positive finding”.

39. For those additional reasons, the Tribunal failed to discharge the statutory functions and duties conferred or imposed by Part 4 of the Act and section 63 of the Administrative Decisions Review Act.

Ground 2

40. Section 62 of the Civil and Administrative Tribunal Act provides as follows:

“62 Tribunal to give notice of decision and provide written reasons on request

(1)    The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2)    Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3)    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.

(4)    Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.”

41. This ground of appeal is in essence an alternative formulation of ground 1. The plaintiff contended that there was simply no substantive engagement with the second proposition set forth in M v M: the Tribunal stated its conclusions without setting forth its reasoning process, leaving the Children’s Guardian in doubt about what legal tests were followed. Analysis of the relevance of the possibilities and suspicions referred to above with respect to the question of risk is said to be entirely lacking in the Tribunal’s reasons.

42. I put aside for present purposes the question of whether or not this ground involves impermissibly construing the Tribunal’s decision “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272. In my opinion, having regard to my conclusions with respect to ground 1, it is unnecessary to consider this ground further.

Ground 3

43. The failure to take into account mandatory relevant considerations is an error of law going to jurisdiction. As the High Court held in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39, a decision maker’s failure to take into account a relevant consideration “is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action”.

44. Whether a consideration is a mandatory relevant consideration will depend on the construction of the statute. Even if a relevant consideration is construed to be mandatory, it is possible that it “might be so insignificant that the failure to take it into account could not have materially affected the decision”: Peko-Wallsend at 40. The determination of whether a consideration is mandatory can be distinguished from the question of the weight to be given to a relevant consideration.

45. The plaintiff nominated two specific matters that the Tribunal was bound, but failed, to have regard to:

1. the possibility that the defendant had engaged in the relevant criminal or inappropriate conduct; and

2. the possibility that the defendant had intentionally sought out child pornography.

46. The Tribunal in fact acknowledged those matters at [103] and [78], [80] respectively. However, the Children’s Guardian contended that it approached its task on the basis that its “open finding” was the end-point of any consideration of those matters. A “mere perfunctory acknowledgement of the existence of [a] mandatory consideration” will not suffice where a decision maker is bound to take a particular matter into account: see for example Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSLWR 527; [2014] NSWCA 105 at [215] and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at 174-176.

47. In order to make out this ground, the Children’s Guardian must also demonstrate that the Tribunal was bound to have regard to those matters as a question of statutory construction.

48. The possibility that the defendant had engaged in the relevant criminal or inappropriate conduct or specifically that he had intentionally sought out child pornography were necessarily bound up in the mandatory consideration of the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. The evidence of the defendant’s expert was that if he was intentionally seeking out child pornography, it would have raised concerns and altered the situation in terms of her assessment of risk. That demonstrates the importance of undertaking the analysis identified by Buss JA in Grindrod (No 2): weighing all such reasonable suspicions in the process of determining what might happen in the future. The Tribunal instead put to one side its “open” finding and correlative suspicions and thereby failed to satisfy the statutory command that it “must consider” the matters identified in s 30(1).

49. The Children’s Guardian submitted that the two matters identified above had to be considered by the Tribunal as an aspect of the requirement in s 30(1)(a) to consider “the seriousness of … any matters that caused a refusal of a clearance” (any assessment of “seriousness” necessarily requiring some weighing or assessment of those possibilities). They were equally required to be considered by the Tribunal as an aspect of the requirement in s 30(1) (k) to assess “any other matters that the Children’s Guardian considers necessary” (noting again that the question of the defendant’s intention to seek out child pornography formed part of the case of the Children’s Guardian, as set out in its written submissions).

50. The Children’s Guardian submitted that, having regard to the materiality of those considerations, as required by Peko-Wallsend, each of the matters which the Tribunal should have considered, but failed to consider, bore directly upon the central question of risk to the safety of children: s 18(2) of the Act. It could not therefore be said, in those circumstances, that the failure was immaterial.

51. I agree.

52. The two matters referred to at [45] above are clearly related although the possibility that the defendant had intentionally sought out child pornography is arguably the more relevant articulation of the important inquiry for present purposes. The decision in the Local Court turned on questions related to the burden of proof. No such consideration attended the Tribunal’s statutory task. The Tribunal should in the circumstances have directly engaged with the evidence and submissions suggesting that the defendant’s computer came to contain the offending material inadvertently or unintentionally, despite the evidence suggesting that downloading material from the sites in question involved payment or the generally frail nature of that contention having regard to questions arguably attending the reliability of the defendant’s evidence.

53. The question was necessarily at the heart of an assessment of whether or not the defendant posed a risk to the safety of children and the Tribunal’s satisfaction concerning it. It was a matter with which the Tribunal necessarily had directly to engage. These were not matters that were so insignificant that the failure to take them into account could not have materially affected the Tribunal’s decision.

Conclusion and orders

54. In these circumstances I make the following orders:

1. Set aside the orders made by the New South Wales Civil and Administrative Tribunal on 20 April 2016 in CFW v Children’s Guardian [2016] NSWCATAD 76.

2. Remit the proceedings to the Tribunal, differently constituted, to be dealt with according to law.

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Decision last updated: 05 October 2016