Office of the Children's Guardian v DVR

[2022] NSWSC 1036

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Office of the Children’s Guardian v DVR [2022] NSWSC 1036

Hearing dates:

8 December 2021

Date of orders:

4 August 2022

Decision date:

04 August 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The NSW Civil and Administrative Tribunal’s decision in proceedings DVR v Children’s Guardian [2021] NSWCATAD 223 dated 30 July 2021 is set aside.

(2) The proceedings are remitted back to the President of the NSW Civil and Administrative Tribunal for determination according to law.

(2) The defendant is to pay the plaintiff’s costs.

Catchwords:

ADMINISTRATIVE LAW – judicial review ­– appeal against decision of the NSW Civil and Administrative Tribunal – Child Protection (Working with Children) Act 2012 (NSW) – working with children check clearance – Whether the Tribunal misconstrued the concept of ‘risk’ in their assessment under s 18(1) –Whether the Tribunal failed to consider the accumulative weight of the allegations – Whether the Tribunal erred in its application of s 30(1A) – Whether the Tribunal provided adequate reasons – Appeal dismissed

Legislation Cited:

Administrative Decisions Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW) ss 4, 13, 14, 15, 17, 18, 27, 30(1A)

Children (Criminal Proceedings) Act 1987 (NSW), ss 15A

Civil and Administrative Tribunal Act 2013 (NSW) cl 17(1)(a) of Schedule 3, s 62(3)

Crimes Act 1900 (NSW) ss 61M, 66C

Police Act 1990 (NSW) s 181D

Cases Cited:

Accident Insurance Mutual Holdings v McFadden (1993) 31 NSWLR 412

Alfred v Walter Construction Group Ltd [2003] FCA 993

BKE v Children’s Guardian [2015] NSWSC 523

CGR v Office of Children’s Guardian [2018] NSWSC 26

Children’s Guardian v CF1 [2020] NSWSC 1673

Children’s Guardian v CXZ [2019] NSWSC 1083

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Commissioner for Children and Young People v V [2002] NSWSC 949

CXZ v Children’s Guardian [2020] NSWCA 338

M v M [1988] HCA 68; 266 CLR 69

McNamara v Consumer Trade & Tenancy Tribunal (2005) 221 CLR 646

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26

Sorby v The Commonwealth (1983) 152 CLR 281

Tilley v Children’s Guardian [2017] NSWCA 174

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Category:

Principal judgment

Parties:

Office of the Children’s Guardian (Plaintiff)
DVR (Defendant)

Representation:

Counsel:
Z. Heger with C. Robertson (Plaintiff)
L. Sims (Defendant)

Solicitors:
Crown Solicitors (Plaintiff)
Aubrey Brown Lawyers (Defendant)

File Number(s):

2021/245520

Publication restriction:

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

Judgment

1. HER HONOUR: This is an administrative law matter seeking judicial review of a decision of the New South Wales Civil and Administrative Tribunal (“NCAT”).

2. By summons filed 27 August 2021 the plaintiff relevantly seeks:

1. The orders made by NCAT on 30 July 2021 be set aside.

2. The proceedings be remitted to the Tribunal, differently constituted, to be determined according to law.

3. The plaintiff is the Office of the Children’s Guardian (“Children’s Guardian”). The defendant, will be referred to by the pseudonym DVR. The parties relied on a joint courtbook (“Ex A(1)-(2)”).

4. At the hearing, the plaintiff was represented by Z. Heger of Counsel. The defendant was represented by L. Sims of Counsel.

5. On 14 September 2021 this Court made orders that the defendant be referred to by the pseudonym “DVR”, and that the persons known as “BE” and “JM” in the Tribunal below be referred to by those pseudonyms. This Court also made orders prohibiting the publication of information that reveals or tends to reveal the identity of DVR or BE for 30 years. It was unnecessary to make any such order in respect of JM, in the light of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

6. There is no dispute between the parties regarding the background, procedural history and legislative framework. I gratefully adopt most of the parties’ submissions regarding these topics with some additions. I shall briefly set it out them out here.

Background

7. The plaintiff appeals from a decision of the Tribunal given on 30 July 2021: DVR v Children’s Guardian [2021] NSWCATAD 223 (“the Tribunal’s Decision”). The appeal is brought pursuant to cl 17(1)(a) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 (NSW)(“NCAT Act”) as of right on a question of law.

8. The hearing before the Tribunal concerned the plaintiff’s decision to refuse the defendant’s application for a working with children check clearance (“WWCC”). This decision arose out of allegations that the defendant sexually assaulted his stepdaughter (“JM”), a 14-year-old girl (“BE”), and two girls under the age of 10 years.

9. The main issues for determination before the Tribunal were: firstly, whether the defendant posed a real and appreciable risk to the safety of children under s 18 of the Child Protection (Working with Children) Act 2012 (NSW) (“WWC Act”); secondly, if he does not, whether a reasonable person would allow the defendant to have direct, unsupervised contact with their children; and finally, whether it is in the public interest to grant the defendant a WWCC under s 30(1A) of the WWC Act.

Sexual assault allegations of JM

10. In 2015, DVR was charged with seventeen sexual assault offences against JM, namely aggravated sexual intercourse and aggravated indecent assault. The offences were alleged to have occurred between 2005 and 2007 when JM was aged between 13 and 15 years. In 2017, DVR was acquitted of all charges by jury decision in the District Court.

11. Although JM had made reports in 2006, 2007 and 2008 of sexual assault by the DVR, she did not request the matter be investigated until the relationship between the DVR and her mother ended in 2014. In a police statement she said she was motivated to request the investigation after having found out from her mother that the DVR may have sexually assaulted someone else.

12. A 2017 Police Force Evidence Based Investigators Report (“Police Report 2017”) sustained a finding that, on the basis of an evidence based non-criminal investigation, DVR had sexually assaulted JM as alleged.

13. The 2017 Police Report took into account that, between 2004 and 2006, JM told her school friend, a school counsellor and a boyfriend that DVR had sexually assaulted her. The report also found that a further disclosure in 2007 was consistent with other disclosures, as was JM’s police statement made in 2014.

14. DVR denied assaulting JM and took the view that JM had made the allegations because he had tried to stop her relationship with a teenager known to police.

Sexual assault allegations of BE

15. In late April 2014, DVR was on duty in the early hours of the morning when he and two other police officers found a drunk, 14 year old girl, BE, wearing only underpants, ugg boots and a singlet top in the company of three young men. DVR took BE home alone in his police vehicle, which was a van used to transport working police dogs and which had only one passenger seat, in the front of the van.

16. Later that morning, BE’s mother told police of her daughter’s disclosure that, in the police van on the way home, DVR digitally penetrated her, performed oral sex on her and touched her breasts. Both BE and DVR participated in recorded interviews with police at the time.

17. In a 2016 NSW Police Force Evidence Based Investigators, the allegations by BE were not sustained. The finding was made following advice received from the Office of the Director of Public Prosecutions (“DPP”) that there was no likelihood of a conviction and they would not be proceeding with the matter. The Report did however find that the defendant had breached the NSW Police Code of Conduct by transporting an underage female alone and by not ensuring she was left with a responsible adult.

Allegations that DVR sexually assaulted two girls under the age of 10 years between 2001 and 2002

18. In 2016, the Children’s Guardian received a notification in relation to allegations that the defendant had sexually assaulted two girls under the age of 10 years between 2001 and 2002. The allegations were not sustained, the girls in question (now women) declined to provide any information and there was no criminal investigation.

19. DVR denied these allegations. He understood the allegations to have been made in the context of a friend’s family law proceedings where the wife had accused the husband (the defendant’s friend) of the sexual assault of her children. The defendant had given evidence on behalf of the husband and only upon receiving the information from the Children’s Guardian did he become aware that the wife had also made allegations against him.

Procedural history

20. On 4 December 2017, the defendant applied to the Office of the Children’s Guardian for a volunteer WWCC under s13 of the WWC Act nominating ‘clubs or other bodies’ as the relevant child related employment sector.

21. On 29 January 2018, the defendant was subject to a risk assessment pursuant to s 14 and 15(1) and cl 1(1)(b) of Sch 1 to the WWC Act in circumstances where proceedings had been commenced against him for disqualifying offences (aggravated indecent assault and aggravated sexual intercourse against JM). He was acquitted of those charges.

22. On 18 May 2018, the Children’s Guardian imposed an interim bar under section 17 of the WWC Act on the basis that the defendant posed a real and appreciable risk to the safety of children.

23. By letter dated 18 April 2019, the plaintiff refused the defendant’s application for a WWCC under s 18(2) of the WWC Act on the basis that the defendant posed a real and appreciable risk to the safety of children.

24. On 3 May 2019, the plaintiff filed an application for an administrative review under the Administrative Decisions Act 1997 (NSW) (“Administrative Decision Act”) pursuant to s 27 of the WWC Act.

25. The plaintiff’s application was heard on 22 October and 11 December 2020. Following the hearing, both parties filed supplementary submissions and an agreed chronology.

26. On 30 July 2021, the Tribunal delivered its decision. The Tribunal set the decision aside and granted the defendant a WWCC: see Tribunal Decision at [166], [167].

The legislative framework

27. The paramount consideration in the operation of the WWC Act is “[t]he safety, welfare and well-being of children and, in particular, protecting them from child abuse”: see s 4 WWC Act. Section 3 sets out the objects of the WWC as follows:

3   Object of Act

The object of this Act is to protect children—

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

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

28. Section 12 of WWC Act concerns the two classes of clearances. Section 12 reads:

12   Classes of clearances

(1)  There are to be the following classes of working with children check clearances—

(a)  volunteer—authorising workers to engage in unpaid child-related work,

(b)  non-volunteer—authorising workers to engage in paid and unpaid child-related work.

(2) Despite section 8, the holder of a volunteer clearance may engage in paid child-related work if the person has been engaged in that work for a period of 30 consecutive days or less.

29. Pursuant to s 13 of the WWC Act, a person may apply to the Office of the Children’s Guardian for a WWCC. Where the Children’s Guardian becomes aware that the defendant for a WWCC is subject to an assessment requirement, the Children’s Guardian must conduct a risk assessment to determine whether the defendant poses a risk to the safety of children: see s 15(1) WWC Act.

30. Pursuant to s 14 of the WWC Act, A person is subject to an assessment requirement under the WWC Act if any of the matters specified in Schedule 1 apply to the person. Schedule 1 includes where proceedings have been commenced against a person for an offence specified in cl 1 of Sch 2. This includes, for example, offences under ss 61M (aggravated indecent assault) and 66C (aggravated sexual intercourse) of the Crimes Act 1900 (NSW)). If the offence was committed as an adult, and the person is not, because of those proceedings, a disqualified person (cl 1(1)(b)).

31. Pursuant to s 17 of the WWC Act, the Children’s Guardian may, at any time after receiving an application for a WWCC, determine that the defendant is subject to an ‘interim bar’, being a bar on the defendant engaging in child-related work.

32. Section 18 of the WWC Act regards the procedure for determination of applications for WWCC clearances and is the central focus of this Judicial Review. Section 18 reads:

18 Determination of applications for clearances

(1) The Commission must not grant a working with children check clearance to the following persons (disqualified persons):

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

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

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

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

[my emphasis]

33. ‘Risk to the safety of children’ is defined in section 5B of the WWC Act as “a real and appreciable risk to the safety of children”.

34. A person who has been refused a WWCC by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of the decision within 28 days after notice of the decision was given to the person: see s 27 WWC Act.

35. In determining an application under Part 4, the Tribunal must consider the matters listed under s 30(1) of the WWC Act. Section 30(1) reads:

30   Determination of applications and other matters

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

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

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

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

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

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

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

(g)  the person’s present age,

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

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

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

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

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

36. Section 30(1A) of the WWC Act reads:

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

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

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

Legal Principles

37. The abovementioned provisions were considered in the recent decision of CXZ v Children’s Guardian [2020] NSWCA 338 (“CXZ v Children’s Guardian”). In this case, at [7a], Basten JA confirmed that the correct test to be applied in assessing whether a person poses a risk to the safety of children is that which was addressed in Tilley v Children’s Guardian [2017] NSWCA 174 (“Tilley v Children’s Guardian”). In that case, the Court followed Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 (“BKE v Children’s Guardian”), who applied the principles identified by the High Court of Australia in M v M [1988] HCA 68; 266 CLR 69 (“M v M”).

38. The issue in M v M was whether providing custody or access to a parent may expose the child to an unacceptable risk of sexual abuse. Having regard to the paramount issue to be decided, namely, the interests of the welfare of the child, the High Court said at [77]):

“[77]   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… In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”

39. CXZ v Children’s Guardian, in relation to s 18(2) of the WWC Act, it was held by Simpson AJA, at [48]-[49] and [52]-[54]:

“[48]   The respondent’s position throughout these proceedings has been that, in considering whether an applicant for a clearance poses a risk to the safety of children, the decision-maker (in this case, the Tribunal) must adopt the “three step approach” outlined in the submissions extracted above. This was also clearly stated in the respondent’s submissions to the primary judge, where the respondent submitted:

“13.   It is well established that the three-step approach to assessing risk that was endorsed by the High Court in M v M … is applicable to proceedings under the [Child Protection] Act.” (WF 142)

As the subsequent submissions make clear, the respondent’s contention was that any allegation raised against an applicant for a clearance is required to be individually subjected to that process.”

[49]   Although, as will appear below, the primary judge accepted and acted on that construction of the judgment in M v M, it is not, in my opinion, correct. It represents a misunderstanding of what the High Court said. It should be rejected.

…

[52]   Nowhere does the High Court say, or suggest, that every individual allegation is to be assessed as either “well founded” or “groundless”. Nowhere does the High Court say, or suggest, that all allegations must be treated as falling into one or other of those categories. Indeed, it explicitly says the opposite. In those cases which do not fall into one or other of those categories the court or tribunal must decide whether the evidence is such as to justify a finding that there is a relevant risk.”

[53]   In the context of the Child Protection Act this assessment will depend upon a number of things: among them, the seriousness of the allegations, the strength of any evidentiary support for the allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant.

[54]   The view I have expressed above that the proposition that a three-step process is required should be rejected is in accordance with what Beech-Jones J said in BKE. At [33] his Honour said: [my emphasis]

“… Thus in such cases it may be that [the Tribunal] can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, [the Tribunal] 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, [the Tribunal] 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.”

40. This ‘three-step process’ is set out by Simpson AJA at [55]:

[55]   The notion of a mandatory three-step process appears to have been drawn (in my opinion, mistakenly) from the decision of Harrison J in Office of the Children’s Guardian v CFW [2016] NSWSC 1406, where his Honour said:

“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 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’. …

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. …

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.” (Citations omitted.)

41. Having regard to what Beech-Jones J said in BKE, Simpson AJA further stated at [57]-[58]:

[57]   None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

[58]   It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.”

42. McCallum JA, who agreed with the decision of Simpson AJA, stated at [28]-[30]:

“[28]    McCallum JA: I agree with Simpson AJA that the appeal should be allowed. As Basten JA has noted, this Court in Tilley at [34]-[35] approved the approach taken by Beech-Jones J in BKE where his Honour applied the principles identified by the High Court in M v M (a family law case involving allegations of sexual abuse) to the similar task of assessing future risk to children raised by s 18(2) of the Child Protection (Working with Children) Act. I agree with Basten JA that the principles stated in the relevant passage in Tilley do not involve a gloss on the section but provide a method for a court to assess future risk.

[29]   I also agree with what [Basten JA] has said at [7(e)] that the proposition that a “lingering doubt or suspicion” should “count against” the applicant has no legal force or significance. That is not to derogate from the method for assessing future risk approved in Tilley, but only to recognise that the judicial explanation of a method for undertaking a statutory task can never supplant the terms of the statute.

[30]   In my view, as Simpson AJA has explained, the case does involve an error in the application of the principles approved in Tilley which is such as to warrant a grant of leave. I also agree that ground 4 should be upheld. The primary judge found that the Tribunal failed to consider “the accumulated weight of the allegations”. However, his Honour’s explanation of that conclusion is anchored to the conclusions his Honour reached as to the Tribunal’s putative failure to undertake “the third stage of the inquiry”. To find error on that basis is to elevate the judge-approved method for assessing risk to a set of hardened rules the application of which, if care is not taken, will supplant the statutory test. I agree with Simpson AJA that the Tribunal did not err in the application of that test. I agree with the orders her Honour has proposed.”

43. Basten JA, who in dissent refused leave to appeal, distilled the main points of his reasoning at [7]:

“[7]   In my view no issue of principle is raised for the following reasons.

(a)   The correct test to be applied in assessing whether a person poses a risk to the safety of children was addressed by this Court in Tilley v Children’s Guardian [4] at [34]-[35]. The Court followed Beech-Jones J in BKE v Office of the Children’s Guardian, [5] who had applied the principles identified by the High Court in M v M. [6] The issue in M v M was whether providing custody or access by a parent may expose the child to an unacceptable risk of sexual abuse.

(b)   The principles do not involve a gloss on the statutory provision, but provide in conventional terms a method for a court to assess future risk.

(c)   Where a suggestion of risk is based upon allegations of past conduct which are disputed by the person claiming the clearance, there is no three-step process involved, but rather a single process in the course of which the Children’s Guardian or NCAT is required to make findings with respect to allegations of past conduct.

(d)   Where the Guardian or NCAT is not affirmatively satisfied that the alleged conduct occurred, but is not able to dismiss the allegation as groundless, it is necessary to assess whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children.

(e)   Although uncertainty as to whether the conduct occurred was described in Office of the Children’s Guardian v CFW as a circumstance where “a lingering doubt or suspicion remains”, stating that this should “count against” the applicant, [7] this language has no legal force or significance. The possibility that relevant and material misconduct may have occurred could support a future risk and is in that sense a factor which could “count against” the applicant. Nevertheless, the phraseology is unhelpful and should be eschewed; however, its use does not necessarily demonstrate error.

(f)   The primary judge applied the approach described in M v M and thus the correct test under s 18(2) of the Act.”

The Tribunal’s decision

44. On 30 July 2021, the Tribunal, comprised of Senior Members S. Leal and L. Houlahan, set aside the decision of the Office of the Children’s Guardian and granted the defendant a WWCC (the Tribunal’s decision). The plaintiff seeks judicial review of this decision in this Court.

45. As to the sexual assault allegations of JM, the Tribunal made the following findings:

“[18]   In oral evidence in these proceedings, the applicant denied ever having sexually assaulted JM. He told the Tribunal that JM’s demeanour had completely changed after she started going out with her boyfriend in 2004, when she was in Year 7.

[19]   On the evidence before us, we cannot be satisfied that the applicant sexually assaulted his stepdaughter, JM. This is because of the inconsistencies between JM’s evidence at trial and the material contained on file.”

…

[23]   For these reasons, on the evidence before us, we cannot be satisfied that the applicant sexually assaulted his former stepdaughter, JM.”

46. With regards to the sexual assault allegations of BE, the Tribunal made the following findings:

[51]   “The applicant gave oral evidence in these proceedings in relation to BE’s allegations. He denied deliberately leaving out the details of the night in his duty book explaining that he used the duty book only as a record of duties. He recorded the specific details of the night in a notebook instead, telling the Tribunal that the undated entry ‘were my contemporaneous notes prepared at the police station at 4.25am.

[52]   He told the Tribunal that he wrote down this lengthy account of the evening’s events because ‘because I needed to get my thoughts down and transcribe them into my official notebook, but I didn’t get the opportunity because I was called in the next night.’

[53]   There is no dispute that the applicant was approached and cautioned by NSW Police Professional Standards Command Investigators the day after BE’s police interview.

[54]   In oral evidence in these proceedings, the applicant agreed that he had not accompanied BE to the door of her residence:

I was more concerned about how I was feeling. I saw her run up the driveway, saw her mum, thought she was home. I’d suffered a great deal of anxiety and needed time to process what had happened. ..I was thinking about my own daughter. I thought my God, what if my daughter behaved like that, what would I do?

[57]   He told the Tribunal that he had conducted registration checks and COPS checks for BE after he left the property. He agreed that he had also checked BE’s Facebook profile, which revealed that she had posted sexually promiscuous posts.

[58]   He agreed that, given her behaviour that night, he should have considered her a child at risk but that at the time ‘it had not entered my mind.’ He agreed that he should have reported it.

[59]   The applicant gave the following explanation to the Tribunal for his failure to report the incident:

Q.  Why didn't you seek guidance from a superior?

A.  Well, I ‑ yes.  Yes.  I suppose if I was ‑ if time had gone a little bit slower and I didn't get interviewed or I didn't get pulled up the next night, I probably would've sought guidance.  I was actually reaching out to a fellow officer and I was going to talk to him about it but I was rushed off to a job in another location and I spent the whole night there and then came back and I was interviewed and it just ‑ it went to nothing.  I was intending to put a intelligence report on her but didn't get the ‑ well, when I say I didn't get the opportunity, the opportunity didn't arise for me to do that because of what happened in the ensuing days.

Q.  You're saying that it was a matter of circumstance that you didn't get an opportunity to tell others about it?

A.  Well, yeah, it sound pretty ordinary but‑‑

Q.  Is that what you're saying?

A.  Well, yes, I am.  I'm saying that, yeah.

[60]   In his oral evidence in these proceedings, the applicant stated that he had only checked the registration of BE’s mother’s car once he’d left the property but could not explain why, in his police record of interview, he said that he had conducted the registration check while he was parked outside the property.

[61]   On the evidence before us, we are satisfied that, despite his statement in his police record of interview, the applicant conducted the check of the vehicle in BE’s driveway only after he had left the residence. In making this finding, we give weight to the contemporaneous note in the applicant’s duty book indicating he had left BE’s residence at 3.05am [‘off 3.05am’] and the CAD evidence that he conducted the vehicle check thirty-five minutes later. We also accept the evidence given in these proceedings by the applicant who we found to be a truthful witness.

[62]   In accepting this, we also find that the applicant left BE, a young, vulnerable 14-year-old girl, at a residence he hadn’t, at that stage, confirmed was hers via a registration check of the car in the driveway, and did not take BE to the front door to confirm she was in the care of a responsible adult.

[63]   In oral evidence before the Tribunal, the applicant considered his actions on the night he had taken BE home:

Well, on reflection, I could've done things a lot better and if I had my time over again I would've done.  I would've done things better.  I would've made sure that she ‑ I would've spoken to her mother and perhaps this would not have come about…I just wanted the situation to go away. I’d never been in that situation. It was very confronting and unique and I could not fathom what was going on. I just wanted to get out and calm down.

[64]   The applicant told the Tribunal that at the time he had taken BE back to her residence, his mental health had been deteriorating, he had undiagnosed PTSD, extreme mood swings, nightmares, flashbacks and trouble sleeping and had become overprotective of children.

[65]   He feels that he let down BE and that he could have managed the incident better. In retrospect, he believes that he shouldn’t have been at the job that night because of his mental state. He told the Tribunal that his mental health is now much better and he is continuing to receive treatment.

…

[67]   In these proceedings, the Children’s Guardian declined a request by the applicant to make BE available for cross-examination. We do not agree with the respondent that the applicant should have pressed this request at hearing. The applicant requested BE for cross-examination and the request was declined, with Counsel for the Respondent noting in his submissions that it is the Children’s Guardian’s approach not to make complainants available to give evidence in proceedings:

The applicant has met the respondent’s reliance on the child’s allegations by requesting that the child attend the Tribunal for cross-examination. That request has been resisted by the Respondent, who has historically preferred in such proceedings not to contact complainants or other individuals mentioned in documents which it has filed. In this case, there is no evidence that the child is unavailable or unwilling to attend.

[68]   The Tribunal notes that as the complainant had been fourteen years old when the complaint had been made in 2014, she was no longer a child by the time these proceedings were commenced.

[69]   As BE has not been made available to be cross-examined in relation to her allegations, it would be a breach of procedural fairness to the applicant for the Tribunal to accept BE’s statement as evidence of the truth of her allegations. (see Children’s Guardian v BLF [2016] NSWSC 1206)

[70]   On the evidence before us, and for the reasons provided below, we are not satisfied that the applicant sexually assaulted BE as alleged. In making this finding, we have accepted the oral evidence of the applicant in these proceedings, who we found to be a truthful witness. His oral evidence in these proceedings is consistent with notes in his police duty book and his detailed handwritten account of the event. Although undated, we accept the applicant’s evidence that he wrote his account of the event within two hours of dropping BE home.

[71]   The applicant’s statement during his police interview that he made a registration check of the car in BE’s driveway when parked outside her house is, we are satisfied, inconsistent with his oral evidence in these proceedings. His oral evidence in these proceedings, namely that he must have conducted the vehicle check after leaving BE’s residence, is, however, consistent with the contemporaneous notes in his police duty book.

[72]   On the evidence before us, we are satisfied that the applicant was mistaken in his police interview when he said he had conducted the vehicle check while still at BE’s residence and that he must have made the check later, which would accord both with the contemporaneous notes in his duty book and the records of the police radio system.

[73]   Furthermore, in the applicant’s account of the evening to his former wife, which was recorded without his knowledge, his denial of the allegation is both detailed and consistent with his police interview.

[74]   As BE was not made available to be cross-examined in relation to her allegations, we do not accept her statement as evidence of her allegations.

[75]   On the evidence before us, as considered above and including the decision of the Office of the Director of Public not to institute proceedings in the matter, we are not satisfied that the applicant sexually assaulted BE as alleged.”

47. With regards to the allegations that DVR sexually assaulted two girls under the age of 10 years between 2001 and 2002, the Tribunal made the following findings:

“[78]   Given the lack of evidence before us and the applicant’s sworn denial of the allegations, we cannot be satisfied that the applicant ever sexually assaulted two girls under ten years between 2001 and 2002.”

48. Under the heading ‘Professional conduct findings made against the applicant’, the Tribunal made the following findings:

“[94]    On the evidence before us and for the reasons set out in the 2017 NSW Police Force Investigator’s Report, we are satisfied that in accessing JM’s profile, the applicant went beyond the execution of his duty.”

49. Under the heading ‘Suggestion that the applicant may have performed child-related work without holding a working with children check clearance’, the Tribunal made the following findings:

“[97]   In oral evidence in these proceedings, the applicant confirmed that he wishes to be granted a working with children child clearance primarily to enable him to coach sport and to be involved in sporting activities with his grandchildren. He is no longer able to coach the junior members of the local sporting club (between the ages of 5 and 17) because he doesn’t hold a working with children check clearance.

[98]   Club players are able to join the club’s senior sporting competition once they have left the under 17 team. According to the applicant, this senior sporting competition only ‘very rarely’ has term members under the age of 18 years. The applicant gave evidence that, in his current training position, he was never left to manage the players unsupervised.

[99]   The Tribunal accepts the applicant’s evidence that, in his current training position, he is never left unsupervised with players. This means that even if a 17-year-old player were to be chosen to play in the senior competition, he would not have been left with the applicant unsupervised.

[100] Section 8 of the Child Protection (Working with Children) Act 2012 provides that a worker must not engage in child-related work unless he or she holds a working with children check clearance of a class applicable to the work.

[101]   According to the Child Protection (Working with Children) Regulation 2013, work for a club, association, movement, society or other body of a cultural, recreational, sporting or community service nature that involves providing programs or services primarily for children is child-related work. Work as a coach or as a team manager, or an assistant coach or assistant team manager, for a sport or activity for children is child-related work. (Regulation 7)

[102]   Given that the applicant’s work training players in the senior sporting competition is not an activity for children nor is it work providing services primarily for children, we are not satisfied that it meets the definition of ‘child-related work.’

[103]   For these reasons, we are not satisfied that the applicant is required to hold a working with children check clearance for this work, even if there were, on occasion, a player in the group who was under 18 years of age.

…

[104]    In 2019, a police event report was created for the applicant’s de facto partner who was stated to be suffering from post-traumatic stress disorder, chronic alcoholism and depression. She told police the applicant had kicked her in the leg. According to the report, the applicant told police that he and his partner had been arguing and ‘she became enraged and lashed out at him at which point he has kicked her to the left side of her leg.’

…

[106]   An interim AVO was issued by the police for the protection of the applicant. The applicant confirmed that whilst he and his partner remain in a relationship, they haven’t lived together since May 2020. He told the Tribunal that ‘the only time we ever argued and the only time the house was disruptive was when she was drinking.’

…

[108]   The applicant agreed that he was considering a career in children’s welfare. He is hoping to find work in a youth shelter where, as a former sports coach, he would be able to work with troubled youth between the ages of ten and eighteen.

[109]   He told the Tribunal that as a police officer, he had been involved with youth in juvenile detention in the puppy-training program and had found the work to be very rewarding. He enjoyed the mentoring role in that program and was impressed by the change in behaviour of the youth as a result of the program. In a statutory declaration dated 14 February 2018, the applicant advised as follows:

“I have been actively involved in coaching, mentoring and training young people both in my professional and personal life. I was involved in a mentoring program at [name of juvenile detention centre] where I oversaw the training of puppies in the NSW Police Dog Unit’s puppy raising development program. This program brought me into close contact with young inmates, mentoring them not only in puppy development, but also their own personal development. As a result of this program, I received a Premiers Award in 2013.”

[110]   In evidence before the Tribunal, the applicant said that he does not believe that he poses a risk to the safety of children. He told the Tribunal:

There are always children around me. My children and their friends have always felt safe. I have always been around children’s sport. I have three granddaughters and my daughter-in-law doesn't hesitate to let me take them out alone. I have mentored children and have a good standing in the community.

[111]   He told the Tribunal he believes he has a lot to offer to children.”

50. Under the heading ‘Risk assessment report’ the Tribunal summarised the findings of psychiatrist Dr Olav Nielssen’s risk assessment report:

“[118]   When asked about the applicant’s risk to children, Dr Nielssen gave the following opinion:

(1)    the applicant does not have a psychiatric disorder that would cause him to pose a risk to children;

(2)   given the investigations and trial did not confirm that the applicant sexually assaulted the complainants, past behaviour is no guide to future conduct;

(3)   based on the applicant’s mental health, personal history and circumstances, there would be a low probability of the applicant engaging in that kind of conduct in the future;

(4)   given that the applicant has been a parent of four children and a stepfather to two others and has been heavily involved in team sports and in numerous ambiguous situations in the course of his police work, that degree of life experience would be expected to make him a suitable person to have unsupervised contact with children;

(5)   despite the disciplinary findings made against the applicant by NSW police in relation to the allegations by JM and BE, Dr Nielssen maintains the opinion that the applicant does not have a disorder of abnormal sexual interest that would make him a danger to a child placed in his care.

[119]   According to Dr Nielssen:

With regards the application of actuarial instruments to estimate the probability of sexual offending, the instruments that are available, such as Static 99R, Sonar and RSVP, are administered on the assumption that the person who is the subject of the risk assessment has committed a sexual offence, in most cases a contact sexual offence. Hence they are not relevant in the assessment of the probability that [DVR] might commit any kind of offence against children in the future, as he has never been found to have committed an offence. Even if they were applicable, [DVR] would be assessed as having a very low or negligible likelihood of committing a sexual offence based on the absence of any of the main risk factors.”

[120]   In conclusion, Dr Nielssen stated:

I did not identify any features of [DVR]’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach, and hence I do not recommend interventions to mitigate risk to children. Based on the information that it available, including a clinical evaluation of [DVR] and an assessment of his level of maturity and his conduct as a policemen and as a parent, I do not believe that [DVR’s] volunteer work as a sports coach or his involvement in his grandchildren’s sporting activities would adversely affect the safety, welfare and well-being of children placed in his care.

[121]   In oral evidence in these proceedings, Dr Nielssen confirmed the opinions expressed in his report.”

51. Under the heading ‘Conclusion on s 30(1) matters’ the Tribunal made the following findings:

“[135]   The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.

[136]   As set out above, the applicant was charged with sexually assaulting his stepdaughter between 2005 and 2007. For the reasons set out above, we are not satisfied the conduct ever occurred.

[137]   The applicant was alleged to have sexually assaulted BE in 2014. For the reasons set out above, we cannot be satisfied that applicant sexually assaulted BE as alleged.

[138]   No details are before us in relation to the allegation that the applicant sexually assaulted two young girls 2001 and 2002. On the evidence before us, we cannot be satisfied that the applicant sexually assaulted the girls.

[139]   As set out above, disciplinary proceedings were taken against the applicant in relation to the BE and JM allegations.

[140]   In relation to the BE allegations, neither issue alleging that the applicant had sexually assaulted BE was sustained. We give weight to these findings, the reasons for which accord with our reasons, as set out above, for finding that on the evidence before us, the applicant did not sexually assault BE as alleged.

[141]   We give weight to the findings of the 2016 NSW Police Force Evidence Based Investigators Report that by taking BE home unaccompanied in circumstances that were neither exigent nor appropriate, the applicant failed to comply with the NSW Police Handbook. We also give weight to the findings of the 2016 Police Force Investigator’s Report that the applicant failed to provide a duty of care to BE by not making inquiries to ensure there was a responsible person at the address.

[142]   For the reasons set out above, we are satisfied that the applicant did not make a registration vehicle check for the car in BE’s driveway until he had left the residence, thereby exacerbating his failure to provide a duty of care to BE.

[143]   The 2017 NSW Police Force Evidence Based Investigators Report sustained a finding that, on the basis of an evidence based non-criminal investigation, that the applicant sexually assaulted JM as alleged. While we accept there is evidence that in 2005, 2006 and 2007 JM reported that the applicant had sexually assaulted her, in her evidence at trial, she was unable to remember having reported the alleged assaults. Although it is suggested in the 2017 NSW Police Force Evidence Based Investigators Report that victims of sexual assault may have difficulties with memory recall, there is no evidence before us to indicate this was the case for JM. We have also had the benefit of the applicant’s oral evidence in these proceedings which was not available to the police investigators who prepared the 2017 NSW Police Force Evidence Based Investigators Report.

[144]   In the light of JM’s evidence at trial and the evidence of the applicant both at trial and during these proceedings, we are unable to find on the balance of probabilities that the applicant sexually assaulted her. For these reasons, we give little weight to the sustained finding of Issue 3 in the 2017 NSW Police Force Evidence Based Investigators Report, as set out above.

[145]   For the reasons given above, we also give weight to the finding by the 2017 Police Force Investigator’s Report that the applicant accessed COPS event record for JM in 2007, ‘for curiosity reasons not being in lawful execution of his duty.’

[146]   As set out above, we accept that a recommendation was made that the applicant be removed from the NSW Police Force on the basis of loss of the Commissioner’s confidence and having regard to the allegations of sexual assault against JM and BE. We also accept that this recommendation was not acted upon and that the applicant was instead discharged from the NSW Police Force for medical reasons.

[147]   We have given the recommendation for the applicant’s removal little weight. This is because the recommendation took into account the sustained finding that, on the evidence based non-criminal investigation undertaken by the NSW Police investigators, the applicant sexually assaulted JM.

[148]   For the reasons set out above, we do not agree with that finding. Instead, as set above, on the evidence before us, we cannot be satisfied on the balance of probabilities that the applicant sexually assaulted JM as alleged.

[149]   We do, however, give weight to the sustained findings that the applicant failed to show a duty of care to BE and acted in breach of the NSW Police Code of Conduct by taking her home unaccompanied and that in accessing the COPS profile for JM he went beyond the execution of his duty.

[150]   In light of the evidence provided by the applicant in these proceedings, we are satisfied that he regrets both taking BE home unaccompanied and failing to ensure she was left in the care of a responsible person. We are satisfied that he has gained an insight into his shortcoming in this regard. As the applicant is no longer a serving police officer, he no longer has access to the COPS database system. There is, therefore, no risk that he will access any records on the system.

[151]   In determining whether the applicant poses a real and appreciable risk to the safety of children, we have given weight to the opinion of Dr Nielssen both in his risk assessment report for the applicant and his oral evidence in these proceedings.

[152]   We accept the applicant’s evidence that his partner’s health has improved since 2019 and that whilst they remain in a relationship, they are no longer living together. We are satisfied that the applicant’s relationship with his partner has no bearing on whether the applicant poses a real and appreciable risk to the safety of children.

[153]   Having considered all the evidence before us, we are satisfied, for the reasons set out above, that the applicant does not pose a real and appreciable risk to the safety of children.”

52. Under the heading ‘Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work?’ the tribunal made the following findings:

“[156] The information that a reasonable person would have to properly consider under the test in s 30(1A)(a) of the Child Protection (Working with Children) Act 2012 is all the evidence before us, as considered above.

[157]   Having regard to all this evidence, and particularly the evidence of the applicant in these proceedings, in addition to the character references provided for him, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:

(1)   that the applicant was acquitted of all charges in relation to the allegations by JM;

(2)   the evidence of the applicant at trial denying he ever sexually assaulted JM;

(3)   JM’s inability at trial to recall having reported the alleged offences by the applicant;

(4)   the applicant’s oral evidence in these proceedings denying he assaulted BE as alleged;

(5)   the decision not to institute proceedings against the applicant in relation to BE;

(6)   the character references provided for the applicant describing him as trustworthy and honest, and the unchallenged evidence that he received a Premier’s Award in 2013 for his work with youth in the NSW Police Dog Unit’s puppy raising development program;

(7)   the applicant’s long and positive history of involvement in his local sporting organisation;

(8)   Dr Nielssen’s report that he did not identify anything in the applicant’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach and hence did not recommend interventions to mitigate risk to children.

[158]   Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would not allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.”

53. Under the heading ‘Is it in the public interest to make the orders sought by the applicant?’ the Tribunal made the following findings:

“[163]   For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant.

[164]   The applicant has a long history of positive involvement in his sporting organisation and his expertise and knowledge would be of benefit to players of all ages in the organisation.”

54. It should be noted that paragraph [158] above included the word “not”. I take this to be a typographical error as it is in direct contradiction with the findings in [157], its conclusion at [156] and the orders made.

55. The Tribunal made the determination that DVR did not pose a real and appreciable risk to children. It was the Tribunal’s view that the reasonable person would allow his or her child to have direct contact with the defendant that was not directly supervised by another person while the defendant was engaged in child-related work, and that it is in the public interest to make such an order: Tribunal Decision at [165].

The grounds of appeal

56. The grounds of Appeal as set out in the summons are as follows:

1. The Tribunal erred at law by misconstruing or misapplying s 18(2) of the WWC Act in that it:

1. proceeded upon the basis it could not be satisfied the defendant poses a “risk to the safety of children” within s 18(2) unless it was positively satisfied that the alleged assaults against JM and BE took place;

2. alternatively, to the extent the Tribunal concluded that the allegations made by JM and BE were groundless, the Tribunal misdirected itself as to what is required for allegations to be groundless, or erred in so holding, because there was no rational basis, having regard to the evidence advanced and the Tribunal’s findings, on which the Tribunal could properly treat JM’s and BE’s allegations as groundless; and

3. alternatively, to the extent the Tribunal concluded that BE’s allegations were untrue, could not have been so satisfied in circumstances where BE was not cross-examined and the defendant did not seek an order requiring BE to attend for cross-examination.

2. The Tribunal erred at law by concluding that it would be a breach of the obligation of procedural fairness owed to the defendant for BE’s statement to be received as evidence of the truth of BE’s allegations: Tribunal’s Decision at [69].

3. The Tribunal erred at law by failing to consider, or failing to give adequate reasons for rejecting, the plaintiff’s submissions that:

1. in applying s 18(2) of the WWC Act, the Tribunal was required to consider whether the respondent posed a risk to the safety of children based on the possibility that the alleged conduct occurred, in accordance with the authority in CXZ v Children’s Guardian [2020] NSWCA 338 at [52] and [57] and BKE v Children’s Guardian [2015] NSWSC 523 at [33];

2. receiving BE’s statement as evidence of the truth of BE’s allegations would not breach the obligation of procedural fairness owed to the defendant; and

3. significance should be given to the cumulative weight of JM’s and BE’s allegations.

4. As a consequence of the errors alleged in Judicial Review grounds 1-3 above, the Tribunal also erred at law by relying on its foregoing reasons when holding that:

1. a reasonable person would allow his or her child to have direct, unsupervised contact with the defendant whilst the defendant is engaged in child-related work; and

2. it was in the public interest to make the orders sought by the defendant.

57. In oral submissions, Counsel for the plaintiff summarised the grounds of appeal (T3.37-5.26). As the defendant agrees with this analysis of the grouping of the judicial grounds, I shall adopt them. I shall briefly explain them here.

58. The first key error is that the Tribunal misconstrued the concept of risk under s 18(2) of the WWC Act (Ground 1(a)). Ground 1(b) is related. It is to the extent that the tribunal concluded the allegations were groundless, it erred in doing so. Ground 3 makes the same point but expressed it as a failure to consider a ground or providing inadequate reasons for the ground. It is really the same risk as posed by Ground 3(a) but putting it as a failure to consider ground or an inadequate reasons ground.

57. The second key error is that is the tribunal erred in concluding that accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. Ground 2 of the summons is related to 1C. It puts it differently and says “to the extent the Tribunal concluded the allegations were groundless it erred in doing so. This is a kind of back up ground in the sense of what the tribunal did to conclude the allegations were groundless, it erred in doing so but also goes to the risk assessment so it is in essence part of the same error.

58. The third error is that the tribunal failed to consider the cumulative weight of JM and BE’s allegations (Ground 3C). It is alleged that the tribunal have taken a siloed approach to each of JM’s and BE’s allegations, rather than considering them as a whole and what, when taken together, this indicates about the possibility of the conduct having occurred and the defendant's risk arising from that. So it's closely allied to the first ground. It's a further demonstration of how the tribunal failed to engage with the key question, that is the risk that's indicated by all of the facts.

59. Ground 4 really takes those three errors but says that they also arose at a different stage of the decision‑making process. That is when the questions under s 30(1A) that need to be addressed.

Grounds 1(a)-(b) and 3(a): requiring “positive satisfaction” of the allegations

62. As stated above, this group of review grounds is that: firstly, the Tribunal misconstrued the concept of risk under s 18(2) of the WWC Act; secondly, to the extent that the tribunal concluded the allegations were groundless, it erred in doing so; and finally, the Tribunal failed to consider a ground or provided inadequate reasons for its decision.

The plaintiff’s submissions

63. The plaintiff submitted that, in respect of JM’s and BE’s allegations, the Tribunal concluded that it was not “satisfied” that the assaults took place, which informed its consideration of the s 30(1) matters, specifically, s 30(1)(a), (c) and (i), of the WWC Act. In coming to its conclusion, the Tribunal failed to turn its mind to the question actually posed by s 18(2) of the WWC Act, which is whether the defendant poses a “risk to the safety of children” that is indicated by all of the facts.

64. The authorities suggest that where the safety, welfare and well-being of the child, including protecting them from child abuse, is paramount, and allegations of sexual abuse or other such conduct have been made, and the conduct is neither well founded nor groundless, the Tribunal must still determine whether “by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children.” In other words, even if not “satisfied” that the relevant allegations are made out, the Tribunal must still consider whether or not there is a sufficient possibility that the alleged conduct occurred such as to give rise to a risk to the safety of children.

65. It is accepted that this approach will lead to WWCC being refused even where allegations have not been proven. However, as Simpson AJA observed in CXZ at [58]:

“[58]   A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.”

66. The plaintiff accepts that the allegations of JM and BE are not well founded, however, they are by no means groundless. In the circumstances, the Tribunal was required to consider whether the evidence gave rise to a “risk to the safety of children” but failed to do so. That error alone is a sufficient basis for allowing the appeal.

67. In relation to Judicial Ground 1(b), the plaintiff submitted that an alternative construction of the Tribunal’s findings that it found the allegations made by JM and BE to be groundless. To the extent that that is the case, the Tribunal misdirected itself as to what is required for allegations to be groundless, or erred in so holding, because there was no rational basis, having regard to the evidence advanced and the Tribunal’s findings, on which the Tribunal could properly treat JM’s and BE’s allegations as groundless.

68. The authorities make clear that not being positively satisfied that that alleged conduct took place is not the same as finding that the allegations are groundless. Where the Tribunal is contemplating rejecting an allegation as groundless, it should have “no hesitation” in doing so. As stated in Children’s Guardian v CF1 [2020] NSWSC 1673 (“Children’s Guardian v CF1”) as per Davies J at [80], cases where an allegation can be dismissed as groundless “are not cases where there is competing evidence which has to be weighed up.”

69. In relation to JM, there was considerable evidence before the Tribunal regarding the allegations including evidence of contemporaneous disclosures regarding the alleged abuse (see Tribunal’s decision at [7], [14] to [16]). Some weight ought to have been given to the fact that the Director of Public Prosecutions considered the matter serious enough to charge the defendant, and that NSW Police considered it serious enough to investigate the allegations following which it concluded that “it is more likely than not that [the defendant] did sexually assault JM”: see Tribunal’s Decision at [13].

70. In respect of BE, there was also evidence before the Tribunal regarding the allegation including evidence of a contemporaneous disclosure regarding the alleged assault to BE’s mother (see Tribunal’s Decision at [25]). While in respect of BE’s allegations the Tribunal accepted the evidence of the defendant, this does not itself mean that BE’s allegations were groundless. That is only a finding on the balance of probabilities and that leaves considerable scope for the possibility that the allegations were true: See Children’s Guardian v CF1 at [79]. To be satisfied that the defendant did not engage in the conduct alleged, the Tribunal needed to reject BE’s statement as untrue which it could not do in circumstances where BE was not required for cross-examination.

71. This was not a case where there was some externally demonstrated fact which would lead to a conclusion of groundlessness (for example, evidence that the defendant was never left alone with JM or BE). In the absence of such objective evidence and having regard to the evidence otherwise before the Tribunal, it was not open to the Tribunal to treat JM’s and BE’s allegations as groundless.

72. In relation to Judicial Ground 3(a), the plaintiff submitted that the Tribunal failed to consider, or failed to give adequate reasons for rejecting the plaintiff’s submissions regarding the correct test to be applied in assessing whether a person poses a risk to the safety of children (ie the test enunciated in BKE v Children’s Guardian and affirmed in CXZ v Children’s Guardian). There is no mention in the Tribunal’s reasons of the test in BKE v Children’s Guardian. The Tribunal’s reasons do not expose any evaluation of the risk posed by the defendant to children apart from references to Dr Nielssen’s findings (which also fixate on the assumption that the defendant did not sexually assault JM or BE: see Tribunal’s Decision at [116], [118(2)]);

73. The error arising from this failure may be put in several ways. First, the failure to consider a substantial, clearly articulated argument is a denial of natural justice. Secondly, the Tribunal failed to comply with its obligation under section 30(1)(k) of the WWC Act to consider “Any other matters that the Children’s Guardian considers necessary”. Thirdly, the Tribunal failed to comply with its obligation to provide reasons under s 62(3) of the NCAT Act, which amounts to an error of law.

The defendant’s submissions

What was required from the Tribunal under s 18(2)?

74. The first defendant submitted that, pursuant to s 18(2) of the WWC Act, the Tribunal was required to determine if the defendant was a person who poses a risk to the safety of children. That risk is a real and appreciable risk to the safety of children: See s 5B WWC Act.

75. In Commissioner for Children and Young People v V [2002] NSWSC 949 (“CCYP v V”) at [42], when considering risk, Young CJ in EQ said:

“…one does not define risk as meaning minimal risk. One would in any case … exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child.”

76. The term “real and appreciable risk” has a wider application. For example, it is part of the central question when privilege against self-incrimination is claimed: see Sorby v The Commonwealth (1983) 152 CLR 281 at 294. In Accident Insurance Mutual Holdings v McFadden (1993) 31 NSWLR 412 at 422, in reference to this question Kirby P (as he then was) said:

“A remote or slight possibility of legal peril to a witness may not, in a particular case, be sufficient to invoke the privilege…”

77. In Alfred v Walter Construction Group Ltd [2003] FCA 993, Gyles J said:

“The danger must be real and appreciable, and not of an imaginary or insubstantial character.”

78. The task of the Tribunal was to answer the question required by the WWC Act. In doing so, the Tribunal was not required to adopt a particular approach. In particular, the Tribunal was not required to adopt the three stage approach that was developed in by His Honour Beech-Jones in BKE v Children’s Guardian at [31]-[33] and endorsed by the Court of Appeal in Tilley v Children’s Guardian.

79. The three stage approach is an established, but not mandatory, method to undertake the assessment required by s 18(2). It involves first, a determination of positive findings of whether the relevant allegations are made out, secondly, a determination whether the relevant allegations are groundless, and thirdly, where an allegation is neither made out or groundless, an assessment of risk based on the possibility that an allegation is correct, is not required under s 18(2): Simpson AJA in CXZ v Children’s Guardian at [52], [57].

80. The three stage test is not required by and does not supplant s 18(2). As McCallum JA said in CXZ v Children’s Guardian at [28]-[30]:

“[28]   I agree with Basten JA that the principles stated in the relevant passage in Tilley do not involve a gloss on the section but provide a method for a court to assess future risk.

…

[30]   However, his Honour’s explanation of that conclusion is anchored to the conclusions his Honour reached as to the Tribunal’s putative failure to undertake “the third stage of the inquiry”. To find error on that basis is to elevate the judge-approved method for assessing risk to a set of hardened rules the application of which, if care is not taken, will supplant the statutory test. I agree with Simpson AJA that the Tribunal did not err in the application of that test.”

81. In CXZ v Children’s Guardian at [7] Basten JA described what was required of the Tribunal in the following terms:

“[7]   … there is no three-step process involved, but rather a single process in the course of which the Children’s Guardian or NCAT is required to make findings with respect to allegations of past conduct.”

Did the Tribunal proceed upon the basis it could not be satisfied the defendant poses a “risk to the safety of children” within s 18(2) unless it was positively satisfied that the alleged assaults against JM and BE took place?

82. The defendant submitted that the Tribunal’s determination that the defendant did not pose a risk to the safety of children was not made solely on the basis that the alleged assaults on JM and BE did not occur. In addition to those significant findings the Tribunal considered the following matters:

1. the defendant’s evidence before the Tribunal concerning risk to children (Tribunal’s Decision at [110]-[111]) and the relevant events (Tribunal’s Decision at [143], [150], [152]);

2. the adverse finding made by the internal Police investigation concerning the allegation that the defendant sexually assaulted JM and BE (Tribunal’s Decision at [90], [91], [143], [144]);

3. the evidence given by JM to investigators and the District Court (Tribunal’s Decision at [143]);

4. the lack of evidence to support the proposition that JM had difficulties with memory recall as a consequence of sexual assault (Tribunal’s Decision at [143]);

5. the failure of the defendant to comply with Police procedures, standing orders or police directives in conveying BE home (Tribunal’s Decision at [82], [86], [149]) and the associated the adverse finding made by the internal Police investigation (Tribunal’s Decision at [141]);

6. the timing of a vehicle check made by the defendant after conveying BE home (Tribunal’s Decision at 142]);

7. the defendant accessing the COPS system in relation to JM in 2017 (Tribunal’s Decision at [92]-[94], [145]);

8. the recommendation of the NSW Police Commissioners Advisory Panel that the defendant be removed from the Police under s181D (3)(a) of the Police Act 1990 (NSW) (Tribunal’s Decision at [95], [146], [147]);

9. the allegation (found to be unsubstantiated) that the defendant undertook child-related work without holding a working with children check clearance (Tribunal’s Decision at [97]-[103]);

10. allegations of domestic violence between the defendant and his de facto partner (Tribunal’s Decision at [104]-[106], [152]);

11. references concerning the defendant’s volunteer work (Tribunal’s Decision at [107]);

12. the finding that the alleged assaults on two young girls in 2001 and 2002 did not occur (Tribunal’s Decision at [138]); and

13. the risk assessment report and oral evidence of Dr Olav Nielssen (Tribunal’s Decision at [112]-[121], [151]).

83. The Tribunal concluded, having considered all of those matters, that the plaintiff does not pose a real and appreciable risk to the safety of children (Tribunal’s at [153]).

84. The observations of Her Honour Simpson AJA in CXZv Children’s Guardian at [83]-[85] are apposite:

“[83]   In this respect I have come to the view that the primary judge was in error. As I have indicated above, the Tribunal carefully considered each allegation that was put before it. As indicated, in many instances, the Tribunal was unable to make a positive finding as to the veracity of the allegations, and, in a number of cases, found the allegations (even if proved) to warrant the assignment of little weight in the context of the assessment of whether the applicant posed a risk to children.

[84]   Against that, and in the context of the allegations, the Tribunal balanced evidence favourable to the applicant, including, significantly, psychiatric reports (including one prepared on behalf of the respondent) that the applicant posed a low risk to the safety of children. It then moved, as indicated above, to the s 30 considerations and dealt with each of those in turn.

[85]   In my opinion the Tribunal properly discharged its function and properly assessed whether the evidence disclosed that the applicant posed a risk to the safety of children. It concluded that he did not. In my opinion the primary judge was in error in finding that it failed to discharge its function.”

Did the Tribunal make a finding that the allegations made by JM and BE and were groundless?

85. In relation to Judicial Ground 1(b), the defendant submitted that the Tribunal did not make an express finding that the allegations made by JM were groundless. The Tribunal found that the assaults as alleged did not take place (Tribunal’s Decision at [23], [122], [124], [130] and [136]). The Tribunal also referred to the cross-examination of JM in the District Court where she stated that she could not remember a number of essential details of her complaints (Tribunal’s Decision at [10]) and other relevant evidence.

86. In the defendant’s submission, the Tribunal did not expressly state that the allegations made by BE were groundless. The Tribunal made a finding that the assaults as alleged did not take place (Tribunal’s Decision at [70], [75], [122], [124] and [140]). The Tribunal also referred to other evidence that exculpates the defendant:

1. the defendant’s evidence, including his evidence at hearing concerning the timing of the vehicle check on the car in BE’s driveway (Tribunal’s Decision at [53]–[60], [71]–[72]);

2. the defendant’s account to his former wife as recorded by the Police (Tribunal’s Decision at [48], [73]);

3. the decision of the Director of Public Prosecutions not to prosecute the defendant (Tribunal’s Decision at [75]);

4. a statement from a teacher at BE’s school concerning inappropriate and sexualised behaviours (Tribunal’s Decision at [47]);

5. the defendant’s contemporaneous notes (Tribunal’s Decision at [43]);

6. the internal Police investigation that found that the defendant had not assaulted BE (Tribunal’s Decision at [83], [84]); and

7. DNA testing of BE’s underpants that did not find any DNA of the defendant but did find DNA from four other males (Tribunal’s Decision at [34]-[35]).

Was the Tribunal required to make a determination that the allegations made by JM and BE were groundless?

87. The Tribunal was required to make a determination as to whether the defendant is a real and appreciable risk to the safety of children. In doing so, the Tribunal was not required to make an assessment that the allegations made by JM and BE were groundless.

88. If the Tribunal followed the three stage approach of BKE v Children’s Guardian and Tilley v Children’s Guardian, then it would have been required to determine if the allegations were groundless if they were not substantiated on the balance of probabilities.

89. However, the Tribunal adopted a much broader approach. In addition to the evidence concerning the allegations made by JM and BE, the Tribunal also had before it:

1. the defendant’s evidence to Police investigators, before the District Court and before the Tribunal from which the Tribunal could form a view as to his credit as a witness and the strength of his contentions that he did not pose a risk to children;

2. the internal Police investigation, which was broader than the allegations made by JM and BE (Tribunal’s decision at [90], [91], [143],[144])

3. allegations of domestic violence between the defendant and his de facto partner (Tribunal Decision at [104]-[106], [152]);

4. references concerning the defendant’s volunteer work (Tribunal Decision at [107]);

5. the (unsubstantiated) allegations of assaults on two young girls in 2001 and 2002 and the defendant’s evidence in relation to those allegations (Tribunal Decision at [138]); and significantly,

6. the risk assessment report and oral evidence of Dr Olav Nielssen (Tribunal Decision at [112]-[121], [151]).

90. To the extent that there was some evidence to support the JM and BE allegations, the Tribunal was required to consider whether the other evidence before it considered the question of whether the defendant did not pose a real and appreciable risk to the safety of children. That included the uncontradicted expert evidence of Dr Nielssen.

91. In CXZ v Children’s Guardian, there was no express finding that any of the allegations were groundless. Clearly no such finding was required to be made in the present case.

Did the Tribunal err by failing to consider, or failing to give adequate reasons for rejecting, the plaintiff’s submissions that in applying s 18(2) the Tribunal was required proceed in accordance with CXZ v Children’s Guardian at [52] and [57] and BKE v Children’s Guardian at [33]?

92. In relation to Judicial Ground 3, the defendant submitted that this point of appeal is inconsistent with the case put by the plaintiff before the Tribunal.

121. In relation to Judicial Ground 3(b), the plaintiff submitted that the Tribunal failed to consider, or failed to give adequate reasons for rejecting the plaintiff’s submissions regarding receiving BE’s statement as evidence of the truth of BE’s allegations would not breach the obligation of procedural fairness owed to the defendant. Apart from a reference to Children’s Guardian v BRL [2016] NSWSC 1206 (“Children’s Guardian v BRL”) (at [69]), there is no analysis of the obligation of procedural fairness owed to the defendant or the reasoning process that led the Tribunal to the conclusions it made on this issue.

122. The plaintiff submits that the Tribunal did not provide adequate reasoning for its actual conclusion that accepting BE’s statement would deny procedural fairness to the defendant. In the circumstances, the statement of reasons has failed to “explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”: see Wingfoot at [55].

The defendant’s submissions

127. The defendant referred to the Tribunal’s decision and noted that in making the finding that the defendant did not sexually assault BE as alleged the Tribunal considered the following evidence:

1. the NSW Police Force Investigator’s Report dated 4 January 2016 (Tribunal’s decision at [45], [51], [80] – [86], [140]);

2. the circumstances in which the allegation arose, including the intoxication of BE (Tribunal’s Decision at [24]);

3. the records in the defendant’s Police notebook (The Tribunal’s Decision at [27]);

4. contemporaneous notes made by the defendant (Tribunal’s Decision at [28], [43]);

5. the Police interview of BE (Tribunal’s Decision at [29]);

6. the Police interview of the defendant in relation to the BE allegations (Tribunal’s Decision at [30]-[33], [39], [40]);

7. DNA testing of BE’s clothing (Tribunal’s Decision at [34]-[35]);

8. the defendant’s evidence at hearing (Tribunal’s Decision at [37], [38], [41]-[42], [53]-[54], [59]-[60]);

9. a statement from a teacher of BE (Tribunal’s Decision at [47]);

10. evidence obtained under a listening device (Tribunal’s Decision at [48]);

11. notes taken by other Police officers (Tribunal’s Decision at [49]); and

12. an assessment by FACS of the BE allegations (Tribunal’s Decision at 50];

128. The defendant submitted that it is unsurprising that the Tribunal came to the conclusion that the BE allegations did not occur. The NSW Police Force Investigator’s Report made the same finding.

129. The defendant further submitted that this point of appeal is at odds with the case asserted by the plaintiff before the Tribunal. The plaintiff conceded that the defendant had given many months notice of their request for BE to be available for cross-examination (plaintiff’s further submissions to the Tribunal at [17], Ex A(2), 955) but maintained a policy position against this request (Tribunal’s Decision at [67]). Had the plaintiff wanted to rely upon BE’s evidence at its highest, they could have taken a different approach.

Did the Tribunal err in concluding that it would be a breach of the obligation of procedural fairness owed to the defendant for BE’s statement to be received as evidence of the truth of BE’s allegations?

130. In the defendant’s submission, refusing to accept the truth of allegations made in the statement of BE was but one of the options available to the Tribunal. In addressing this issue in Children’s Guardian v BRL at [23] – [28] where Fagan J said:

“[23]   The plaintiff contends that the Tribunal erred in law in limiting the use it would make of the statements. From the Tribunal's reference to the decisions of Harrison J in FZ v Commissioner for Children and Young Persons [2010] NSWSC 1144 and of the Court of Appeal in Commissioner for Children and Young Persons v FZ [2011] NSWCA 111, it is clear that the reason for the Tribunal deciding to limit the purpose for which it would receive the statements was that procedural fairness would be denied to the defendant if they were taken as evidence of the truth of the allegations. This was because the Children's Guardian did not intend to call the makers of the statements for cross-examination and their allegations therefore could not be tested.

[24]   Of course, it would have been open to the Tribunal to take the statements as evidence of the facts asserted in them but this would be subject to consideration of how much weight should be attached in circumstances where they are were not tested. Although not referred to in the reasons, it is understandable that the Tribunal would not have been willing to do that where the Children's Guardian had tendered no evidence on the preliminary application to explain why the makers of the statements were not to be called for cross-examination on their allegations; nor did the Guardian indicate that it intended to call such evidence at the final hearing.

[25]   In fact, as I was informed on the hearing of the summons, the Children's Guardian has not attempted to contact the makers of the statements to ascertain their willingness or ability to attend to give evidence, or to ascertain their reasons for not being so willing or able if that is the case…

…

[28]   I consider that there was no error in law in the Tribunal receiving the statements for the limited purpose that it did.”

131. The parallels between Children’s Guardian v BRL and the present case are clear. The plaintiff has made a policy decision not to call a witness who has made extremely serious allegations, and yet assert that their evidence has some probative value. At the relevant time that witness was an adult. The plaintiff conceded that there is no evidence that BE was unavailable or unwilling to attend (plaintiff’s submissions to the Tribunal at [97], Ex A(1) 334-335).

132. It was open to the Tribunal in applying Children’s Guardian v BRL to either: refuse to consider BE’s statement as evidence of the truth of its contents; or admit BE’s statement as evidence of the truth of its contents but give it negligible weight.

133. As Fagan J said in Children’s Guardian v BRL at [30]:

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

134. The plaintiff seeks to make a policy-based argument that the plaintiff be relieved of the obligation to make witnesses available for cross-examination (plaintiff’s submissions at [58]). Those submissions should not be accepted.

135. The defendant submitted that the approach set out by Fagan J in Children’s Guardian v BRL does not mandate that a complainant be available in every case. His Honour indicates that enquiries should be made as to the willingness of a complainant to give evidence and where a complainant is unwilling, an explanation provided to the Tribunal: See Children’s Guardian v BRL at [58].

136. The approach taken by Fagan J allows the admission of statements where the maker is unavailable for cross-examination, subject to weight. This emphasises the responsibilities of the plaintiff as a statutory office holder and as a model litigant. This approach is consistent with the severe consequences that may flow from the denial of a WWCC. An individual may lose their employment or business. They may be forced to change career. They or their partner may cease acting as a carer, including to family members. The risk of injustice in those severe consequences is ameliorated by enabling serious allegations to be properly tested.

Did the Tribunal err by failing to consider, or failing to give adequate reasons for rejecting, the plaintiff’s submissions that receiving BE’s statement as evidence of the truth of BE’s allegations would not breach the obligation of procedural fairness owed to the defendant?

137. The defendant submitted that the Tribunal refused to receive BE’s statement as evidence of the truth of her allegations on the basis of Children’s Guardian v BRL, an authority cited in detail in the plaintiff’s submissions to the Tribunal at [108]–[110] and on the basis of related submissions made by the plaintiff.

138. The defendant drew attention to where the plaintiff stated in those submissions at [98]:

“…the Tribunal is not bound by the rules of evidence and is authorised to determine its own procedure… But this flexibility does not mean that the Tribunal can adopt any procedure whatsoever and does not remove the Tribunal's duties to act reasonably and to provide the parties with procedural fairness… Procedural fairness may in some cases require that a rule of evidence be complied with or reflected somehow in the way that the Tribunal handles the material before it… ln some cases, then, a rule of evidence - such as the hearsay rule, which is relevant to this case - will in practical terms be binding upon the Tribunal.”

139. The plaintiff also drew the Tribunal’s attention to CCYP v FZ, which was considered and applied by Fagan J in Children’s Guardian v BRL.

140. The plaintiff then sought to argue that: the actual evidence of BE was not significant and that it was appropriate for the Tribunal to accord that evidence less weight: see plaintiff’s submissions at [105]-[107]; the actual evidence of BE was not significant and that it was appropriate for the Tribunal to accord that evidence less weight: see plaintiff’s submissions at [105]-[107]); the case could be distinguished from CCYP v FZ and Children’s Guardian v BRL; and they should be relieved from obligations of procedural fairness on policy grounds.

141. To the contrary: the allegations made by BE were of great significance; CCYP v FZ and Children’s Guardian v BRL could not be distinguished, the Tribunal was obliged to apply them; and the policy argument did not address the requirement for the Tribunal to apply CCYP v FZ and Children’s Guardian v BRL.

142. The reasons provided by the Tribunal in relation to BE’s statement (Tribunal’s Decision at [67]-[69]) met the requirements in s 62(3) of the NCAT Act. They did not need to be more extensive. In Wingfoot the High Court at [55]-[56] said:

“[55]   The statement of reasons must explain the actual path of reasoning by which the [decision-maker] in fact arrived at the option the [decision-maker] in fact formed on the … question referred to it. … The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

[56]   A [decision-maker] explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.”

143. In applying Wingfoot, in CGR v Office of Children’s Guardian [2018] NSWSC 26 at [41], Lonergan J said:

“[41]   This is the standard by which [the ground of appeal] needs to be assessed. The Tribunal is not a court, and its reasons should not be scrutinised with an eye keenly attuned to error.”

Resolution

144. The central contention of these grounds of appeal is that the Tribunal fell into error by concluding that accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. Alternatively, it argued that the Tribunal’s approach to BE’s allegations is that it simply concluded the allegations were untrue and to the extent that it did so, the Tribunal could not have been so satisfied in circumstances where BE was not cross-examined. This alleged error is also expressed as a failure to provide reasons for making this decision.

145. The plaintiff submitted that while the defendant initially requested that BE be made available for cross-examination, that request was not pressed at the hearing (Tribunal Decision at [67]). Further it would be an unnecessarily onerous task for both the Children’s Guardian and the Tribunal to require for cross-examination any historical complainant whose allegations are the subject of a risk assessment for a WWCC. Alternatively, the plaintiff submitted of the Tribunal’s approach to BE’s allegations is that it simply concluded the allegations were untrue. To the extent that it did so, the Tribunal could not have been so satisfied in circumstances where BE was not cross-examined, and the defendant ultimately did not seek an order requiring BE to attend for cross-examination

146. The defendant submitted that, in accordance with the decision in BRL, it was open to the Tribunal to either: refuse to consider BE’s statement as evidence of the truth of it’s contents; or admit BE’s statement as evidence of the truth of it’s contents but give it negligible weight. The Tribunal refers to the decision of Children’s Guardian v BRL at [69] of their decision and was therefore aware of these principles.

147. The plaintiff’s argument that the factual circumstances of Children’s Guardian v BRL can be distinguished to these proceedings. In my view, the principles established by Fagan J in Children’s Guardian v BRL are of wide import and applies to cases such as this.

148. The Tribunal noted the circumstances surrounding BE’s allegations. At [67] they noted that the defendant requested for BE to be made available for cross-examination and the request was declined, with Counsel for the Children’s Guardian in the hearing before the Tribunal submitting that it is the Children Guardian’s approach not to make complainants available to be evidence in proceedings. At [68], the Tribunal notes that BE, despite being 14 years old at the time of the complaint, was no longer a child when the proceedings commenced. The Tribunal considered various other pieces of contextual evidence surrounding the BE allegations, including the internal Police Force investigations. It was on this basis that the Tribunal decided not to accept BE’s statement as evidence of the truth of her allegations. I do not accept the plaintiff’s submission that due to a policy decision made on behalf of the Children’s Guardian, it was the obligation of the defendant to press his request to have BE cross-examined. While I understand that plaintiff’s policy decision, it may result in procedural unfairness to the defendant. It should not be a blanket view if the plaintiff seeks to challenge the Tribunal’s findings on its approach to the evidence.

149. In my view, it was open to the Tribunal to decide, considering the factual circumstances and in consideration of the principles of Children’s Guardian v BRL, accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. By outlining the circumstances surrounding BE’s statement, it is my view that the Tribunal discharged of their duty and did not disclose of path of reasoning as per Wingfoot at [55]. Judicial Grounds 1(c) and 2 fail.

Ground 3(c): Tribunal failed to consider cumulative weight of evidence

150. This ground was briefly addressed in the parties’ submissions with further clarity provided by the oral submissions at the hearing. It is the plaintiff’s contention that the tribunal failed to consider the cumulative weight of JM and BE’s allegations. It is submitted by the plaintiff that the tribunal have taken a siloed approach to each of JM’s and BE’s allegations rather than considering them as a whole and what them, taken together, indicated about the possibility of the conduct having occurred and the defendant's risk arising from that. This ground is also expressed as a failure to provide reasons for making this decision.

151. At the hearing, when the issue was raised as to whether failing to consider the cumulative weight of the evidence constituted an error of law, Counsel for the plaintiff referred to the decision of Children’s Guardian v CXZ [2019] NSWSC 1083, where Walton J stated at [293] that the Children’s Guardian was correct to submit that the Tribunal did not expressly or impliedly evaluated the accumulated weight of the evidence of the allegations when assessing the risk (T28.1-42). Counsel submitted that while Walton J’s decision was overruled on Appeal (in CXZ v Children’s Guardian, referred to throughout this Judgment), the Court of Appeal did not say anything in disapproval of the concept that a siloed approach should not be adopted (T29.10-11).

152. In CXZ v Children’s Guardian, Simpson AJA stated at [79]  

There is no need to go beyond the language of the High Court in M v M, which (adapted to accommodate the Child Protection Act) requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him.

[my emphasis]

153. However, in my view, this was not the issue that was before the Court of Appeal in CXZ v Children’s Guardian and without express reference to this concept, it cannot be said that the Court of Appeal’s silence is authority for failing to consider the cumulative weight of evidence as constituting an error of law. In any event, If I am wrong, I will consider the parties submissions on this issue.

The plaintiff’s submissions

154. In relation to Judicial Ground 3(C), the plaintiff submitted that the Tribunal failed to consider, or failed to give adequate reasons for rejecting the plaintiff’s submissions regarding the significance that should be given to the cumulative weight of JM’s and BE’s allegations. There was no consideration of how BE’s allegations may have reinforced the credibility of JM’s allegations or vice versa.

155. At the hearing, Counsel for the plaintiff provided further arguments in relation to this ground (T28.4-8):

“In my submission, it is in the sense that it really reveals again a misconstruction of the concept of risk under section 18(2), and, as I said, it is closely related to the first error, because the Tribunal has taken this siloed approach of, let's look at JM's allegation, are we positively satisfied it's made out. No, we're not, so we put it to one side. Let's look at BE's allegation-”

The defendant’s submissions

156. The defendant submitted that the Tribunal did not fail to consider the cumulative weight of JM’s and BE’s allegations. This is a matter that was expressly set in the NSW Police Force Investigator’s Report (Tribunal’s Decision at [91]) as well as the plaintiff’s submissions (plaintiff’s further submissions to the Tribunal at [3] (Ex A(2) 950)). Those matters were addressed by the Tribunal (Tribunal’s Decision at [144]). In essence, JE was not a credible witness because she failed to remember essential details of her complaints in giving evidence before the District Court. In contrast, the defendant was found to be a credible witness having been cross-examined in both the District Court and the Tribunal. The reasons given by the Tribunal were consistent with their obligations under s62(3) of the NCAT Act and with Wingfoot.

157. Counsel for the defendant in oral submissions also provided further submissions on this topic (T44.13-45):

“…the third alleged error is the failure to consider or give reasons for how it considered the cumulative weight of the two allegations. Essentially it's that the Tribunal should have applied some sort of coincidence reasoning to say that because BE had made allegations then JM's allegations were more likely to be true.

As a proposition of whether that's an error of law in failing to consider that matter, in my submission it's not, but if it is an error of law, it's not made out because in fact the Tribunal did consider the cumulative weight of the two allegations and that is, it's only brief in the reasons but again one has to consider the level of detail that the Tribunal is required to go to in stating its reasons.

So at paragraph 91 of the Tribunal's reasons, where the Tribunal sets out, this is in consideration; so just to place us within the flow of the Tribunal's decision, the Tribunal considered the allegations made in respect of JM, considered the allegations made in respect of BE, considered the allegations in relation to two girls under the age of 10 and then this section falls under the heading "Professional Conduct Findings Made Against the Applicant" which is the heading that appears above paragraph 79.

So there were professional conduct findings made by the police and there were a number of different issues that had been considered by the police and issue 3 was whether the defendant had sexually assaulted his step‑daughter which was JM and at 91 the Tribunal recites a passage from the internal police report or conclusion of their findings which refers to this point about the cumulative weight. "The two known females who have been alone with DR are JM and BE...when the assaults are alleged to have occurred".

And so the Tribunal is extracting a passage where the police had considered the cumulative weight of the allegations and considering it in their assessment of the evidence and then at 144 of their decision the Tribunal returns to that issue.”

The plaintiff’s submissions in reply

158. The defendant submitted that the Tribunal did consider the cumulative weight of JM’s and BE’s allegations, relying on the Tribunal’s extract from the NSW Police Force Investigator’s Report that “[JM] and [BE] both made allegations of sexual assault and both [JM] and [BE] were of similar age when the assaults are alleged to have occurred”: Tribunal’s Decision at [91]. The Tribunal’s recitation of this content without more hardly constitutes consideration of the cumulative weight of JM’s and BE’s allegations; it did not engage in an “active intellectual process” on that topic. The defendant also refers to the Tribunal’s Decision at [144]. There the Tribunal concluded that it could not find on the balance of probabilities that the assault against JM occurred. It did not consider how the existence of two, similar, allegations affected the assessment of the defendant’s risk.

Resolution

159. The argument made before the Tribunal was, which is again argued before this Court, that the Tribunal failed to consider the cumulative weight of JM and BE’s allegations.

160. This issue is directly considered by the NSW Police Force Investigator’s Report dated 21 August 2017, which was reproduced in the Tribunal’s decision at [91]. In this report, the Investigator noted that the two known females who have been alone with the defendant, JM and BE, both made allegations of sexual assault and both were of similar age when the assaults are alleged to have occurred. The investigator noted that no sustained findings were made against DVR in relation to the BE matter due to, largely, a lack of corroborative evidence. However, critically, the investigator stated that the fact remains that BE had made an allegation of sexual misconduct consistent with the allegations of JM. In my view, I am satisfied that the Tribunal considered the cumulative weight of the allegations of JM and BE.

161. As this information was before the Tribunal, who reproduced it in their decision at [91], I am also satisfied that the Tribunal considered the cumulative weight of the allegations of JM and BE when making their assessment of the evidence. When the Tribunal’s reasons are read fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]) and without “an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287), the Tribunal has deposed of its obligation to provide reasons. Judicial Ground 3(c) fails.

Ground 4: errors infected application of s 30(1A) matters

162. Judicial Ground 4 is that as a consequence of the errors alleged, the Tribunal also erred at law by relying on its foregoing reasons when holding that:

1. a reasonable person would allow his or her child to have direct, unsupervised contact with the defendant whilst the defendant is engaged in child-related work: Tribunal’s Decision at [158]; and

2. it was in the public interest to make the orders sought by the defendant: Tribunal’s Decision at [163].

163. Ground 4 really takes the above-mentioned errors and alleges that they also arose at a different stage of the decision‑making process, where the s 30(1A) considerations are addressed.

The plaintiff’s submissions

164. The plaintiff submitted that the errors in the Tribunal’s analysis outlined above and submitted also infected its conclusions on the matters set out in s 30(1A) of the WWC Act.

165. At [156] of its reasons, the Tribunal stated that the information a reasonable person would have to properly consider under the test in s 30(1A)(a) of the WWC Act is “all the evidence before us, as considered above”. At [157] of the Tribunal’s decision, they referred to a number of matters to which a reasonable person would have regard, none of which include the similar nature of the allegations made by JM or BE, or any contemporaneous disclosures of the alleged assaults and all of which supported its conclusion that it could not be satisfied that the alleged conduct occurred. At [158] of its decision, the Tribunal concluded that it was satisfied that a reasonable person would allow their child to have direct, unsupervised contact with the defendant whilst he is engaged in child-related work having regard to the material before it and for the reasons “set out above”.

166. At [163] of its decision, the Tribunal concluded, for the reasons “set out above”, that it was not satisfied that the defendant poses a risk to the safety of children and that having regard to the material before it, it was satisfied for the purposes of section 30(1A)(b) that it is in the public interest to make the orders sought by the defendant.

167. The plaintiff submitted that, in both cases, the Tribunal appears to have adopted its earlier reasoning regarding the risk posed by the defendant, including its conclusion that it was “not satisfied” that the defendant had engaged in the alleged conduct towards JM and BE. Both conclusions are therefore affected by the errors outlined above.

The defendant’s submissions

168. The defendant submitted that there being no errors in the Tribunal’s reasoning, as asserted in Appeal Grounds 1–3, there was no error on the part of the Tribunal.

169. The Tribunal referred to all of the evidence. In addition to that, the Tribunal expressly referred to eight separate matters that supported the finding that the defendant was not a risk to children (Tribunal’s Decision at [157]). That evidence would, in the mind of a reasonable person, more than overcome the evidence of JM and BE.

170. The plaintiff has not identified any errors in the authorities cited by the Tribunal. The decision in relation to public interest was a rational application of the findings made by the Tribunal to those principles.

Resolution

171. The central contention of this ground of Judicial Review is that, by making the errors alleged in grounds 1-3, the Tribunal erred by deciding that a reasonable person would allow his or her child to have direct, unsupervised contact with the defendant while the defendant is engaged in child-related work and it was in the public interest to make the orders sought by the defendant.

172. The Tribunal, in addressing these considerations, relied upon their earlier reasons at [158] and [163]. Having established that the Tribunal made the errors alleged in Judicial Ground 1(a), it is consequent that the Tribunal’s application of s 30(1A) was infected by this error. As such, I find that the Tribunal has made an error of law on the face of the record in relation to these Judicial Grounds.

Result

173. The result the Tribunal have made the errors of law on the face of the record alleged in Judicial Grounds 1(a) and 4. The Tribunal’s decision dated 30 July 2021 is set aside. The proceedings are remitted back to the President of the NSW Civil and Administrative Tribunal for determination according to law.

Costs

174. Costs are discretionary. Costs generally follow the event. The defendant is to pay the plaintiff’s costs.

The Court orders:

1. The NSW Civil and Administrative Tribunal’s decision in proceedings DVR v Children’s Guardian [2021] NSWCATAD 223 dated 30 July 2021 is set aside.

2. The proceedings are remitted back to the President of the NSW Civil and Administrative Tribunal for determination according to law.

3. The defendant is to pay the plaintiff’s costs.

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Amendments

15 August 2022 - Publication restriction amended.

Decision last updated: 15 August 2022