Supreme Court New South Wales Medium Neutral Citation: Children's Guardian v CF1 [2020] NSWSC 1673 Hearing dates: 3 November 2020 Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a working with children check clearance is set aside. (2) Remit the proceedings to the Tribunal, differently constituted, to be determined according to law. Catchwords: ADMINISTRATIVE LAW - judicial review - appeal from decision of New South Wales Civil and Administrative Tribunal - working with Children clearance - where defendant was charged with multiple counts of sexual intercourse and sexual assault of a minor - where charges did not proceed to Court because complainant did not want to give evidence - whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act - where Tribunal conflated concepts of not being satisfied offences occurred and finding that allegations were groundless - where Tribunal erred in finding allegations groundless - where Tribunal erred in giving negligible weight to witness statements - where undue weight placed on evidence not being tested in circumstances where defendant did not require witnesses for cross-examination - where denial of procedural fairness - decision set aside and matters remitted to tribunal Legislation Cited: Child Protection (Working with Children) Act 2012 No. 51 (NSW) ss 5, 14, 15, 18, 30, Sch 1 Civil and Administrative Tribunal Act 2013 (NSW) Sch 3 Cases Cited: Children's Guardian v BRL [2016] NSWSC 1206 Children's Guardian v CXZ [2019] NSWSC 1083 DVY v Children's Guardian [2020] NSWCATAD 151 M v M (1988) 166 CLR 69 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Texts Cited: Nil Category: Procedural and other rulings Parties: Children's Guardian (Plaintiff) CF1 (Defendant) Representation: Counsel: J Emmett & J Brezniak (Plaintiff) D McGirr (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) McGirr Lawyers Pty Ltd (Defendant) File Number(s): 2020/204189 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: DVY v Children's Guardian [2020] NSWCATAD 151 Date of Decision: 15 June 2020 Before: S Leal, Senior Member E Hayes, General Member File Number(s): 2019/00149537 Judgment 1. The defendant applied under the Child Protection (Working with Children) Act 2012 No. 51 (NSW) ("the Act") for a working with children check clearance ("clearance") from the plaintiff, the Children's Guardian. That application was refused by the Children's Guardian on 12 April 2019. 2. The defendant applied to the New South Wales Civil and Administrative Tribunal for an administrative review of the decision of the Children's Guardian. On 15 June 2020 the Administrative and Equal Opportunity Division of NCAT set aside the decision of the Children's Guardian and granted to the defendant a clearance: DVY v Children's Guardian [2020] NSWCATAD 151. 3. By summons filed 10 July 2020 the Children's Guardian seeks to set aside the orders made by NCAT and seeks that the proceedings be remitted to it, differently constituted, to be determined according to law. On 24 July 2020 Garling J ordered that the defendant, formerly referred to as DVY, be known as CF1. Background 1. In 2016 the defendant was charged with the following seven offences: (1) Sexual intercourse with a person under ten years (namely six years) between 5 October 2006 and 31 October 2006; (2) Sexual intercourse with a person under ten years (namely six years) between 5 October 2006 and 31 October 2006; (3) Sexual intercourse with a person under ten years (namely nine years) under authority between 5 October 2009 and 31 March 2010; (4) Indecent assault of a person under 16 years (namely nine years) between 5 October 2009 and 31 March 2010; (5) Aggravated sexual assault of a person under the age of 16 years (namely ten years), between 5 October 2011 and 31 December 2011; (6) Aggravated sexual assault of a person under the age of 16 years (namely 11 years), between 1 January 2012 and 4 October 2012; and (7) Aggravated sexual assault of a person under the age of 16 years (namely 11 years), between 1 January 2012 and 4 October 2012. 1. The complainant in respect of each offence was his wife's niece. At the time the defendant was charged the complainant was aged 16 years. 2. The charges did not proceed to Court. They were withdrawn by the Director of Public Prosecutions on the first day of the trial because the complainant did not want to give evidence in Court, and she said that she did not want the matters to continue. 3. The offences with which the defendant was charged fell within clause 1(2)(b) of Schedule 1 of the Act with the result that the defendant was subject to an assessment requirement in s 14 of the Act. Sub-clause 1(2) of Schedule 1 stipulated that such a requirement existed because proceedings had been commenced against a person whatever the outcome of those proceedings. 4. Section 15 of the Act sets out matters relating to the assessment requirement. Section 15(4) identified the matters that may be considered by the Children's Guardian. Paragraph (h) was "the seriousness of the person's criminal history and the conduct of the person since the matters occurred". Section 5C of the Act defined criminal history to include criminal charges "whether or not heard, proven, dismissed, withdrawn or discharged". 5. The defendant was charged on the basis of the complainant's evidence in a statement made to the police and signed by her on 18 November 2016. In addition, the DPP had statements from the complainant's mother, father and her father's brother. There was also a police interview with a school friend of the complainant, "A", who gave evidence of the complainant making a complaint to her when they were in year 3. The judgment of the Tribunal 1. The Tribunal first set out the task that it was required to undertake as follows: Issues [4] The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children. [5] If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider: (1) whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and (2) whether it is in the public interest to grant the applicant a working with children check clearance. Does the applicant pose a real and appreciable risk to the safety of children? [6] To engage in child-related work in NSW, a person must hold a working with children check clearance. The Children's Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. The Children's Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children's Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children's Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s 5B and s 18 of the Child Protection (Working with Children) Act 2012) [7] In determining whether the applicant poses a real and appreciable risk to the safety of children, we have considered those matters raised by the Children's Guardian in refusing the applicant a working with children check clearance, namely that the applicant was charged with sexual offences following allegations that he sexually assaulted his niece when she was between the ages of six and eleven years. [8] We have also considered the written and oral evidence of the applicant and his wife. [9] We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s 30(1) of the Child Protection (Working with Children) Act. What findings are we able to make in relation to allegations that the applicant sexually assaulted his niece? [10] The question for the Tribunal is this: in our determination as to whether the applicant poses a real and appreciable risk to the safety of children what findings are we able to make in relation to allegations that the applicant sexually assaulted his niece? [11] There are three possibilities. We may be satisfied that such the allegations have been established. Alternatively, we may be satisfied that the relevant conduct did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, we 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 the existence of a risk has not been disproven: Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. 1. The Tribunal then set out extracts from the decision of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 where the statutory test for assessing risk under s 18(2) of the Act was explained, and a portion of the judgment of Fagan J in Children's Guardian v BRL [2016] NSWSC 1206, where Fagan J considered what approach should be taken to untested statements in cases where an applicant was seeking to be granted a clearance. The need for the reference to that authority arose because a number of statements were tendered with no cross-examination of the makers of the statements taking place. 2. The Tribunal then set out in some detail its summary and analysis of the evidence which was before it. 3. Having done so, the judgment continued: Can a positive finding be made that the allegations against the applicant have been established? [75] For the following reasons, we cannot make a positive finding that the allegations against the applicant have been established: (1) The criminal proceedings against the applicant were discontinued because the complainant did not want to give evidence and did not want the matter to proceed. (2) The applicant has always maintained his innocence on the charges. (3) The applicant has given a written statement and provided oral evidence to this Tribunal, under oath, declaring that he is innocent of the charges that were laid against him. (4) The complainant was not available to be tested on her unsigned police statement. Is there a real risk that the conduct the subject of the allegations occurred? [76] For the reasons provided below and in light of the complainant's refusal to give evidence in the criminal proceedings against the applicant, the lack of explanation for her decision, the internal and external inconsistences contained in the complainant's unsigned and untested statement, the inherent improbability of the later allegations and the inconsistency between statements before us, we cannot be satisfied that there is a real risk that the conduct the subject of the allegations occurred. Refusal to give evidence in the criminal proceedings [77] The complainant advised the Office of the Director of Public Prosecutions that she did not want to give evidence and did not want the matter to go ahead. For this reason, the criminal proceedings were discontinued. No evidence was provided at to why the complainant did not want to give evidence. Inconsistencies in the complainant's statement and with other statements and lack of inherent probability of the conduct alleged [78] Contained in the complainant's unsigned statement are the following claims that have been disputed by the applicant and the applicant's wife who were cross-examined during these proceedings: (1) That the applicant's wife was working at night at the time of the sexual assault alleged to have taken place in 2012 when the complainant was 11 years old. The applicant's wife gave evidence that she had given up any night work by the time her youngest child was born in 2009. No evidence was provided to dispute this. (2) That the applicant told the complainant 'I would never touch you, you are my niece.' In oral evidence before us the applicant denied this. The applicant was cross-examined at length on his evidence by Counsel for the Children's Guardian. (3) In her statement, the complainant claims to have told the applicant's eldest son that the applicant had been touching her. In his police statement, the applicant's eldest son denied being told this by the complainant. No evidence was called to dispute this and the applicant's eldest son was not required for cross-examination, (4) In her statement, the complainant states that the applicant had vaginal-penile intercourse with her while one of her cousins was asleep on the bed right beside her and another on the lounge in the same room. She describes the assault in the following terms: 'It felt like [DVY] was really aggressive because I was trying to move away but [DVY] grabbed me on my shoulder with the one hand and was pulling me back towards him.' According to the complainant, the two other instances of vaginal-penile intercourse also took place while the applicant's eldest son was sleeping on the same mattress at the complainant and his elder son was sleeping on the lounge in the same room. We have concerns that the applicant could have had vaginal-penile intercourse with the complainant in these circumstances without disturbing the child on the bed beside the complainant. The implausibility of this account in a statement that has not been tested leads us to doubt the veracity of the complainant's allegations that the applicant had vaginal-penile intercourse with her. (5) In his unsigned statement, the complainant's father states that in the middle of November 2016, the complainant said to him 'someone has been touching me since ages 6 to 11…. I pretended to be asleep, Dad, when this thing was happening.' There is no mention of the applicant having vaginal-penile intercourse with the complainant. In the complainant's account of the first allegation of vaginal-penile penetration in her unsigned police statement she explains how when she tried to move away the applicant grabbed her by the shoulder and pulled her back. This does not accord with her alleged statement to her father that she would pretend to be asleep 'when this thing was happening.' [79] The doubts we have in relation to the veracity of the complainant's account of the applicant's alleged vaginal-penile intercourse and the inability of the Tribunal to test the complainant's statement lead us to entertain a general doubt as to the complainant's credibility and the consequent veracity of her allegations against the applicant. [80] In making these findings, we have given weight to the written and oral evidence of the applicant and his wife, both of whom we found to be credible witnesses. [81] We have given minimal weight to the statement of the complainant, given its internal and external inconsistencies and the fact that it is untested. [82] Because they have been untested, we have given negligible weight to the statements of the complainant's mother and uncle and father. In considering the mother's statement, we have taken into account the undisputed evidence of the applicant and his wife that the complainant's mother allows her son to remain with the applicant unsupervised. This would indicate that the complainant's mother trusts the applicant. This heightens our doubts as to the veracity of the complainant's allegations against the applicant. [83] In considering the father's statement, we have take into account the evidence of the applicant that the complainant made the allegation to her father shortly after the applicant had, at her mother's request, removed the complainant, under protest, from her boyfriend's house. This would provide a possible motive for the allegations and one we have been unable to explore given the complainant's unavailability to be questioned on her evidence. [84] We have given negligible weight to the evidence of disclosures allegedly made by the complainant, in particular the phone call by the mother of 'K' to the complainant's mother in 2011. This is because the statement of the complainant's mother is unsigned and untested and because we have no evidence from the mother of 'K' to confirm the call or provide details of it. (see Children's Guardian v BLF [2016] NSWSC 1206) Instances of disclosure [85] For the reasons set out above, we have doubts that the applicant sexually assaulted the complainant as alleged and on this basis find that we can not be satisfied that the assaults ever occurred. [86] Before us is evidence that the complainant disclosed to her father, mother, uncle and school friends 'K' and 'A' that her uncle had sexually assaulted her. For the reasons provided below, this evidence does not change our view that, on the evidence before us, we cannot be satisfied that the conduct the subject of the complainant's allegations ever occurred. [87] In her police interview that took place on 21 April 2017, the complainant's school friend 'A' stated that when she and the complainant had been in Year 3, the complainant told her she had been sexually assaulted by her uncle. This conflicts with the police statement of the complainant who said that the applicant had sexually assaulted her two weeks after her sixth birthday and that she had told her friend the following year which, it is not disputed, could not have been in Year 3. The disclosure could not have been made earlier, according to 'A', as she and the complainant had not been friends until Year 2. In light of the discrepancies between the complainant's account of the disclosure and 'A''s account, coupled with the fact that 'A' police interview was not contemporaneous (instead made in 2016) and that her evidence has never been tested, we give it negligible weight. [88] In the absence of any evidence from the mother of the complainant's school friend 'K' and further details and clarification from the complainant's mother as to the mother's phone call to her, we give negligible weight to the unsigned and untested statement of the complainant's mother in relation to her conversation with the mother of 'K'. [89] The applicant gave oral evidence to the Tribunal in which he stated that shortly before her disclosure to her father, the applicant had forced the complainant to leave her boyfriend's house and return home, which had upset the complainant. The applicant gives this as a possible motive by the complainant to make the allegations he declares in his evidence to be false. In the absence of further evidence by the complainant, her father and her uncle to address the question of possible motive, we give negligible weight to the disclosures by the complainant of the alleged assaults. [90] For the reasons set out above, we cannot make a positive finding that the conduct the subject of the allegations ever occurred. Furthermore, in light of the internal and external inconsistencies contained in the complainant's unsigned and untested statement, the inherent improbability of the later allegations, the inconsistency between statements before us and our subsequent doubts as to the veracity of the complainant's account, we cannot be satisfied that the conduct the subject of the allegations ever occurred. For these reasons, on the evidence before us, we find the allegations to be groundless. 1. The Tribunal next considered the matters which it was required to consider in s 30 of the Act. The Tribunal said: [91] As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings. The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a)) [92] The matters that led to the refusal of the applicant's working with children check clearance are allegations that the applicant sexually assaulted his wife's niece over a number of years. These are very serious allegations. For the reasons set out above, however, we are not satisfied that the conduct that is the subject of the allegations ever took place. The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b)) [93] The conduct which is the subject of the allegations is said to have taken place between 2006 and 2012. There have been no subsequent allegations made against the applicant who retains the support of his wife and children and who, on the evidence before us, is trusted by the complainant's mother to care for her son unsupervised. The age of the person at the time the matters occurred (s30(1)©) [94] The applicant was 26 to 32 years of age at the time of the alleged offences. 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 (s30(1)(d)) [95] The complainant was aged 6 to 12 at the time of the alleged offences. She was the applicant's niece by marriage and said to have been in his and his wife's care at the time of the alleged assaults. The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e)) [96] The applicant is 20 years older than his niece. Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f)) [97] The applicant knew his niece was a child and the time of the alleged assaults. The person's present age (s30(1)(g)) [98] The applicant is 40 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h)) [99] The applicant has no criminal record and has not been the subject of any other charges, allegations or apprehended violence orders, other than those related to the alleged assault of his niece. [100] When interviewed by officers from the Department of Family and Community Services following their father's arrest, the applicant's children described a close and supportive relationship with the applicant. In light of the allegations made by the complainant, a safety plan was implemented by FACS in co-operation with the applicant, his wife, their eldest son and two family friends. It is agreed that the safety plan is no longer enforced. Since the allegations were made, the applicant has not come to the adverse attention of the authorities. There is no evidence to suggest that officers of the Department of Family and Community Services have any current concerns about the applicant's children. Likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i)) [101] On the evidence before us and for the reasons set out above, we are not satisfied that the applicant ever engaged in the conduct described in the allegations made by the complainant. [102] Such conduct would, we are satisfied, have a detrimental impact on children. There is no evidence before us, however, that the applicant would be likely to ever engage in any such conduct. [103] Given that we do not accept that the conduct the subject of the allegations ever occurred, there is no evidence or material identified during the hearing and examination of the evidence which would establish that the applicant poses a real and appreciable risk to the safety of children. There have been no allegations of any kind made against the applicant either prior to or after the matters for which he was initially charged. Any order of a court or tribunal that is in force in relation to the person (s30(1)(il) [104] There are no orders in force in relation to the applicant. Information given by the applicant in, or in relation to, the application (s30(1)(j)) [105] No further information has been provided. Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl) [106] No further information has been provided. Any other matters that the Children's Guardian considers necessary (s30(1)(k)) [107] No further matters have been put forward for our consideration. Conclusion on section 30(1) matters [108] 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. [109] For the reasons set out above, we are satisfied that the applicant did not engage in the conduct alleged by the complainant. There is no other evidence before us to indicate that the applicant would pose a real and appreciate risk to the safety of children. [110] On the basis of the evidence before us, we find that the applicant does not pose a real and appreciable risk to the safety of children. Section 30(1A) considerations [111] Section 30 (1A) of the Child Protection (Working with Children) Act 2012 prohibits the Tribunal from making an order allowing a person to work with children unless satisfied that: (1) 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 child-related work, and (2) it is in the public interest to make such an order 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? [112] The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation. [113] In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a "reasonable person" would need to know that: (1) the applicant has no criminal history; (2) the charges made against the applicant were withdrawn after the complainant stated that she did not wish to give evidence against the applicant; (3) the complainant's mother has continued to leave her son in the applicant's care, despite the allegations by her daughter, the complainant; (4) the unsigned statement of the complainant contains internal and external inconsistencies, as detailed above; (5) aspects of the complainant's statement, as detailed above, contain allegations that seem implausible; (6) there have been no subsequent or earlier allegations against the applicant. [114] 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 allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. Is it in the public interest to make the orders sought by the applicant? [115] Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. CHB v Children's Guardian [2016] NSWCATAD 214 [116] The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration. [117] The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant. Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 [118] In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said: "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest." [119] 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. This is because we are satisfied that it is in the public interest for the applicant to be involved with his children's sporting activities and to engage in employment to support his family. 1. Finally, under the heading "Decision" the Tribunal said: [120] For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order. Grounds of Appeal 1. The grounds of appeal set out in the summons are these: 1. The Tribunal erred at law by misconstruing or misapplying s. 18(2) of the Child Protection (Working with Children) Act 2012 (WWC Act) in that it: a. 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 the allegations as groundless: Reasons at [90]; b. had no rational basis, in assessing the extent of any risk posed by the defendant to the safety of children, for treating the evidence of disclosures by the complainant to third parties as being of negligible weight: Reasons at [87]-[89]; c. failed to consider the likelihood that the allegations of the complainant might be true, in circumstances where the allegations could not properly be dismissed as groundless: Reasons at [103]; d. could not be affirmatively satisfied that the complainant's evidence was untrue, if the Tribunal so concluded, in circumstances where the complainant was not cross-examined and was not required for cross-examination; Reasons at [109]. 2. The Tribunal erred at law by placing weight on the fact that the police statements before it were unsigned, in circumstances where there was no rational basis on which any weight could be placed on this fact, it being common ground that signed copies of the statements had been located. 3. As a consequence of the errors alleged in paragraphs l(a)-(d) and 2 above, the Tribunal also erred at law by relying on its foregoing reasons when holding that: a. 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: Reasons at [114]; and b. it is in the public interest to make the orders sought by the defendant: Reasons at [119]. 1. In the written submissions for the Children's Guardian, counsel abandoned ground 2, and made clear that ground 3 was a ground consequential upon ground 1. Submissions 1. The plaintiff submitted that reading paragraphs [90] and [103] of the Tribunal's judgment together, the Tribunal appears to say that the allegations are groundless, or that there is no real and appreciable risk, because the Tribunal is not satisfied that the conduct occurred. The plaintiff submitted that if the Tribunal reasoned that way it would be an error, because it conflates the question "Is the Tribunal satisfied the conduct occurred?" with the question "If the Tribunal cannot be so satisfied, is there nevertheless a real and appreciable risk?" The plaintiff drew attention to the judgment of Harrison J in Office of the Children's Guardian v CFW at [15] and submitted that even if the Tribunal cannot be satisfied that the alleged conduct occurred, that does not equate to the allegations being groundless. 2. The plaintiff submitted that the Tribunal failed to turn its mind to the question actually posed by s 15(1) which is to consider the question of risk that is indicated by all of the facts. The plaintiff submitted that the Tribunal's singular focus on the question of whether or not the conduct as alleged occurred caused it to fall into error. That is because the failure to arrive at a state of satisfaction that the alleged conduct occurred does not equate to the allegations being groundless. 3. The plaintiff submitted that to be satisfied that the defendant did not engage in the conduct alleged, the Tribunal needed to reject the complainant's statement as untrue. The plaintiff submitted that it was not open to the Tribunal to reach this conclusion where the complainant was not required for cross-examination. 4. The plaintiff submitted that for the claims to be dismissed as groundless there would need to be some externally demonstrated fact which would lead to a conclusion of groundlessness. The plaintiff submitted that in the present case the only objective fact which could lead to a conclusion that the complaint was groundless would be if it could be demonstrated that the complainant never slept at the defendant's home. The plaintiff submitted that although there was extensive debate on the issue the Tribunal made no express finding about the matter. The plaintiff submitted that in the absence of an affirmative finding of satisfaction that the complainant never slept at the defendant's home, it is difficult to see any other matter that supported a conclusion that the complainant's allegations were groundless or insupportable. The plaintiff submitted that that further supported the conclusion that the Tribunal misunderstood what was involved in finding that the allegations were groundless. 5. The plaintiff submitted that by the Tribunal having equated its non-satisfaction as to the occurrence of the allegations with those allegations being groundless, it failed to consider whether the defendant posed a risk to the safety of the children based on an evaluation of all of the evidence and that the Tribunal thereby failed to proceed as required by s 15(1) of the Act. 6. The plaintiff submitted that the Tribunal erred in giving negligible weight to the statements of the witnesses who were not subject to cross-examination, particularly because it appears that none of those witnesses was required for cross-examination. 7. The plaintiff submitted that although the Tribunal purported to rely on what Fagan J said in BRL as to the use to which untested evidence could be made and the weight that could be given to it, the Tribunal's reasoning failed to give due recognition to the weight that could be given to the non-hearsay use of the prior disclosure evidence. The plaintiff submitted that the Tribunal erred by giving negligible weight to the statements when there was no rational basis to do so. That was said to be particularly so in relation to the evidence of contemporaneous or near contemporaneous disclosure to "K" and "A" which predated the defendant's allegation that the complainant had a motive to lie because he removed the complainant from her boyfriend's house. 8. The plaintiff submitted that, following what was said by Walton J in Children's Guardian v CXZ [2019] NSWSC 1083 at [215]-[218], it was not open to the Tribunal to make a finding rejecting the complainant's statement in circumstances where the complainant had not been required for cross-examination. In those circumstances, the plaintiff submitted, it was not open to the Tribunal to be affirmatively satisfied that the complainant's evidence was untrue or that her allegations were groundless. 9. The defendant submitted that the relevant decision of the Tribunal is to be found at [120] which was that the Tribunal was satisfied that the applicant did not pose a real and appreciable risk to children. The defendant submitted that the decision was not based on whether the allegations were "groundless" but on whether the defendant posed a real or appreciable risk to children. 10. The defendant submitted further that because it had found that the allegations were groundless it did not need to turn its mind to making a finding in relation to the elements of real or appreciable risk. Nevertheless it did so and that, it was submitted, fortified its decision. 11. The defendant submitted that the Tribunal assessed the evidence in its entirety and gave reasons for determining that it could not make a positive finding that the allegations against the defendant had been established. The defendant submitted that the Tribunal had regard to the oral evidence including extensive cross examination of both him and his wife, he noted that the complainant was not available to be tested on her unsigned police statement, and he said that no evidence was provided as to why the complainant did not want to give evidence. 12. The defendant submitted in those circumstances, it was open to the Tribunal to find that the allegations were groundless. 13. The defendant submitted that the Tribunal did not base its conclusion only on the allegations being groundless but on a consideration of the matters set out in s 30(1) of the Act. 14. The defendant submitted that it was open to the Tribunal to determine that the evidence of complaints by the complainant to third parties should be given negligible weight and was not in any event evidence of the truth of the allegations having taken place. When that was considered with the absence of the complainant to give evidence or be cross-examined, he submitted that the Tribunal was correct in exercising its discretion to give negligible weight to such evidence. 15. In relation to the issue of whether the victim ever stayed overnight in the defendant's house, the defendant submitted that the Tribunal considered his evidence and that of his wife as well as the statement of his eldest son. The defendant submitted that the Tribunal properly analysed and considered the evidence, and took into account that the complainant did not give evidence in the proceedings. 16. The defendant submitted that even if the conclusion by the Tribunal that the allegations were groundless cannot be upheld, the Court should consider the further conclusions of the Tribunal based on a consideration of the s 30(1) matters and its conclusion that there was no real or appreciable risk in granting the clearance. 17. The defendant submitted that the approach the Children's Guardian took to the case was an adversarial one. It chose not to call the complainant and other witnesses but to rely on the cross-examination of the defendant and his wife in order to prove that they were liars. The defendant submitted that in circumstances where he and his wife were believed by the Tribunal the plaintiff must accept the outcome of not calling the complainant and the other witnesses. 18. The defendant, while accepting that a finding that the allegation was groundless was unusual, submitted that the finding did not infect the remainder of the judgment. In that regard, the defendant submitted that when considering the s 30(1) matters, the Tribunal had regard to all of the evidence to conclude that the defendant did not pose a real and appreciable risk to children. Determination 1. An appeal to this Court from the Administrative and Equal Opportunity Division of NCAT is provided by cl 17 of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) which provides, (1) A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision - (a) A Division decision for the purposes of the Child Protection (Working with Children) Act 2012. (b) … (2) The Supreme Court may make such orders as it considers appropriate in the light of its decision on the appeal, including (but not limited to) the following— (a) an order affirming, varying or setting aside the decision under appeal, (b) an order varying the decision under appeal, (c) an order setting aside the decision under appeal and, if it considers appropriate, making a decision in substitution of that decision, (d) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court. 1. In my opinion, the Tribunal erred in law in three ways as follows: (1) It misdirected itself as to what is required for the allegations to be groundless; (2) It was not open to the Tribunal to regard the statements of the witnesses whose statements were described as unsigned and untested as being of negligible weight; and (3) It erred in law in determining that the allegations were groundless. 1. Although the errors made by the Tribunal are discrete errors, each of them is closely related to the other. (1) Misdirection as to what was required for the allegations to be groundless 1. In M v M (1988) 166 CLR 69 the High Court was considering allegations of sexual abuse in relation to custody proceedings in the Family Court. The decision has been relied upon in a number of cases involving working with children clearances. 2. The High Court said: [22] In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said: 'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.' His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. [23] No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. 1. The concept of groundless allegations is one of three determinations capable of being made on the evidence before the Court. There will first be cases where the Court is able to make a positive finding that the allegation is well founded. Secondly, there will be cases where the Court has no hesitation in rejecting the allegation as groundless. Thirdly, there will be cases where the Court cannot confidently make a finding that sexual abuse has taken place. The third group are the difficult cases. Ultimately, the Children's Guardian, in the first instance, and the Tribunal if there is a review, must determine whether, despite the inability to reach a firm view one way or the other about the sexual abuse, the applicant poses a risk to the safety of children. 2. Applying M v M, Harrison J in CFW set out the statutory test as follows: [13] The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. [14] The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. [15] The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: … determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare. 1. What is clear from M v M and CFW is that not being able to be satisfied that sexual abuse has taken place is not the same as a finding that allegations made are groundless. It is apparent, however, that the Tribunal has conflated the two matters. 2. The Tribunal first said that it could not make a positive finding that the allegations were established at [75]. One of the reasons was that the complainant was not available to be tested on what was described as her unsigned police statement. I will return to that matter later in the judgment. 3. The Tribunal then said that it could not be satisfied that there was a real risk that the conduct the subject of the allegations occurred (at [76]), and went on to consider a number of matters in what they described as "complainant's unsigned statement". The Tribunal made reference to the complaints made to the complainant's father, mother, uncle and school friends "K" and "A", and said that that evidence did not change their view that they could not be satisfied that the conduct had ever occurred. 4. The Tribunal then said at [90]: For the reasons set out above, we cannot make a positive finding that the conduct the subject of the allegations ever occurred. Furthermore, in light of the internal and external inconsistencies contained in the complainant's unsigned and untested statement, the inherent improbability of the later allegations, the inconsistency between statements before us and our subsequent doubts as to the veracity of the complainant's account, we cannot be satisfied that the conduct the subject of the allegations ever occurred. For these reasons, on the evidence before us, we find the allegations to be groundless. 1. At [92], [101] and [103], the Tribunal reiterated that they were not satisfied that the applicant engaged in the conduct described and then went on to say at [109]: For the reasons set out above, we are satisfied that the applicant did not engage in the conduct alleged by the complainant. 1. The conflating of the concepts of not being satisfied and finding either that the allegations were groundless or did not happen is particularly highlighted at [90] and then by the conclusion at [109] which relied on the same reasons as the conclusion, expressed a number of times, that the Tribunal could not be satisfied that the allegations had occurred. 2. The particular significance of [90] is that everything the Tribunal had considered including the internal and external inconsistencies in the complainant's statement led only to the conclusion that the Tribunal could not be satisfied that the allegations occurred. Without anything further the Tribunal then said that for the same reasons the allegations were groundless. The two matters are not the same. The Law of the Excluded Middle does not apply. Not being satisfied that the allegations occurred is not the same as saying that the allegations did not occur (as [109] says) or that the allegations were groundless (as [90] says). 3. It is clear that this finding of the Tribunal infected its ultimate determination, because [109] reads: For the reasons set out above, we are satisfied that the applicant did not engage in the conduct alleged by the complainant. There is no other evidence before us to indicate that the applicant would pose a real and appreciate risk to the safety of children. 1. The "reasons set out above" only caused the Tribunal not to be satisfied that the conduct in the allegations occurred: see at [86], [90], [92] and [101]. The tribunal did not identify any further evidence that brought them to the positive conclusion in [90] and [109]. (2) Giving negligible weight to statements 1. In Children's Guardian v BRL, the Children's Guardian sought to tender four police statements that had been prepared in relation to allegations that had been made against the defendant. The Tribunal received the statements, not for proving the truth of what was in them, but for the fact that they were made. In that case the Children's Guardian contended that the Tribunal erred in law by limiting the use that it could make of the statements. Justice Fagan said: [23] …[I]t 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. I reject the plaintiff's submission that because the rules of evidence do not apply in the Tribunal it was bound to take in the statements for all purposes. That does not follow. Being at liberty not to apply the rules of evidence by virtue of s 38(2) the Tribunal had the power by force of the concluding words of that subsection to consider the denial of natural justice which would result if it should act upon statements of this kind in proof of such serious allegations without the defendant having an opportunity to test them. [29] 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). [30] If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016. [31] It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight. [32] What might well have made a difference to the plaintiff's case regarding the gravity of the risk that these allegations may be truthful would have been some evidence tendered to the Tribunal to explain why the complainant would not testify at trial. The possibilities include, on the one hand, that the allegations were false. At the opposite extreme is the possibility that family pressure was exerted on the complainant, given that the complainant's father was the brother-in-law of the defendant. It is possible that at the least she was unsupported by her father in coming forward with the complaints. These competing possibilities, and others which may be imagined, remain matters of speculation, because the Children's Guardian has not inquired into, let alone adduced evidence of, the reasons for the complainant's conduct. If either of these latter possibilities had been supported by investigation on the part of the Children's Guardian and by the tendering of evidence, a case could have been made for receiving the statements for all purposes (even without opportunity to cross examine) and then discounting their weight. 1. I note that the Tribunal itself made reference to paragraphs [30]-[32] of that judgment although, for reasons that are not clear, it identified those paragraphs at paragraph [13] of the Tribunal's judgment as being paragraphs [22]-[24]. 2. Having done so, the Tribunal noted at [14] that: [T]he complainant did not give oral evidence before us nor was she available for cross-examination. Further, at [75] the Tribunal gave as a reason they could not make a positive finding that the allegations had been established was that: The complainant was not available to be tested on her unsigned police statement. 1. In relation to the weight given to evidence, the Tribunal said: [80] In making these findings, we have given weight to the written and oral evidence of the applicant and his wife, both of whom we found to be credible witnesses. [81] We have given minimal weight to the statement of the complainant, given its internal and external inconsistencies and the fact that it is untested. [82] Because they have been untested, we have given negligible weight to the statements of the complainant's mother and uncle and father. In considering the mother's statement, we have taken into account the undisputed evidence of the applicant and his wife that the complainant's mother allows her son to remain with the applicant unsupervised. This would indicate that the complainant's mother trusts the applicant. This heightens our doubts as to the veracity of the complainant's allegations against the applicant. … [84] We have given negligible weight to the evidence of disclosures allegedly made by the complainant, in particular the phone call by the mother of 'K' to the complainant's mother in 2011. This is because the statement of the complainant's mother is unsigned and untested and because we have no evidence from the mother of 'K' to confirm the call or provide details of it. (see Children's Guardian v BLF [2016] NSWSC 1206) … [87] …The disclosure could not have been made earlier, according to 'A', as she and the complainant had not been friends until Year 2. In light of the discrepancies between the complainant's account of the disclosure and 'A''s account, coupled with the fact that 'A' police interview was not contemporaneous (instead made in 2016) and that her evidence has never been tested, we give it negligible weight. [88] In the absence of any evidence from the mother of the complainant's school friend 'K' and further details and clarification from the complainant's mother as to the mother's phone call to her, we give negligible weight to the unsigned and untested statement of the complainant's mother in relation to her conversation with the mother of 'K'. [89] The applicant gave oral evidence to the Tribunal in which he stated that shortly before her disclosure to her father, the applicant had forced the complainant to leave her boyfriend's house and return home, which had upset the complainant. The applicant gives this as a possible motive by the complainant to make the allegations he declares in his evidence to be false. In the absence of further evidence by the complainant, her father and her uncle to address the question of possible motive, we give negligible weight to the disclosures by the complainant of the alleged assaults. 1. It is clear from the judgment in BRL that Fagan J's reasons for considering that the Tribunal in that case was correct in accepting the statements for a limited purpose and reducing the truth of allegations in them to negligible weight were based on the fact that the makers of the statements were not to be called for cross-examination because they were not made available by the Children's Guardian, and no explanation for their absence was put forward (see at [23]-[25] and [31]). 2. The position in the present case was different. After receipt of the documentary evidence, the following exchange occurred: SENIOR MEMBER: Thank you. So, exhibit 8 is the applicant's outline of submissions filed on 24 February 2020. Thank you. And, is there any oral evidence to be called or any witnesses who are required today? MCGIRR: We have not - there was only to be one witness from the other side which is Detective Davis who we have advised we don't require on the basis we've agreed. We have [the defendant and his wife] here as witnesses for cross examination. They will swear their statement. And, if there's any further questions of them they're able to answer. Other than that, we only have submissions. 1. In addition, during final submissions, the following exchange occurred: SENIOR MEMBER; Okay. So, can I - before we deal with the next question, can I, just as a matter of memory jogging, what witnesses were required for cross-examination, if any? And, what was the response? Mr McGirr? MCGIRR; We didn't require any witnesses for cross-examination. SENIOR MEMBER: Including [the complainant's mother]? MCGIRR; Correct. SENIOR MEMBER: Do you require [the complainant's father] for cross-examination now? MCGIRR: Do I? Member, we've got a real cost issue. My clients don't have all the money to go back to have a hearing for half a day on cross- examining [the complainant's father]. That's the issue. Of course, there's a procedural disadvantage here. If my client's incurring costs, then - of which is clear on the evidence he doesn't have. He's a factory worker. So, effectively, 10 what - what - if - if - if that's available to me, it would come at a cost to my client which he just doesn't have. SENIOR MEMBER: Thank you. Thank you. MCGIRR: So --- SENIOR MEMBER: But [the complainant's mother] wasn't required for cross-examination. Would that change now for [the complainant's father]? Would he be required? You're saying it's a cost issue, simply? Was that --- MCGIRR: It is a cost issue. SENIOR MEMBER: Is that also --- MCGIRR: That's right. SENIOR MEMBER: …a cost issue for not requiring Yvette and - and, again, I'm not looking behind your instructions, but maybe I'll just ask you an open question. Was there anything you could tell me about requiring or not requiring any of the other witnesses for cross-examination? MCGIRR: That - that - they had statements there that were unsigned, for starters, which now – [the complainant's uncle]'s statement, for instance, is unsigned - still unsigned, and hasn't been found. So, in regards to [the complainant's mother], there's now a signed statement. Our case is always that they were unsigned, and that was dealt with on the - on the day of the - of the - of the hearing when it was given leave to - to try and find those executed statements. 1. It is clear, therefore, that the defendant did not require any of the makers of the statements, including the complainant, to be made available for cross-examination. Mr McGirr for the defendant said in submissions that the Children's Guardian took a particular approach to the case which was to conduct a searching cross-examination of the defendant and his wife with a view to proving that they were liars. However, it is also apparent that the approach of the defendant to the Tribunal proceedings was to put forward the defendant and his wife to prove that the allegations were false and to argue that since the only matter against their evidence was what was contained in unsigned statements, the defendant's evidence should be preferred. Indeed, Mr McGirr submitted that as far as the rule in Brown v Dunn was concerned, there could no question of procedural fairness to the complainant by not requiring her for cross-examination. 2. That, however, does not deal with the fact that the Children's Guardian, as the opposing party, was entitled to procedural fairness in relation to evidence which it called. For a party not to require the makers of statements that were to be tendered to be present for cross-examination, and then to contend that little or no weight should be given to them because those statements were untested, denies procedural fairness to the Children's Guardian. In BRL, the shoe was really on the other foot, and Fagan J made clear that in that case procedural fairness to the defendant had to be considered when the makers of the statements were not produced and no explanation was given for that. 3. In CXZ, Walton J said: [215] … [A]s to the Tribunal being unable to test the veracity of the complainant's statement, I accept that it was not open to the Tribunal to make a finding rejecting the complainant's statement in those circumstances. In that respect, it might be noted that I accept the submission of the Children's Guardian that the principles stated in FZ do not apply as the complainant was not sought for cross-examination. [216] In FZ, Young JA stated (at [25]): [25] In Ramsay v Australian Postal Corporation [2005] FCA 640; 147 FCR 39, Spender J said at 47 [27]: "While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is." ]217] However, such principles were expounded in circumstances where the complainant had been sought for cross examination. That background was explained by Harrison J at first instance in FZ v Commissioner for Children and Young People [2010] NSWSC 1144 (at [69]) as follows: [69] … However, all of that lies at the very heart of the plaintiff's complaint. As long as anything said by KB to the police or to Ms Dean remains at large, it is not possible to say that it has been established to a degree of comfortable satisfaction. According to this line of reasoning, it would not be possible for the Tribunal legitimately to have formed the view or to have reached the conclusion that KB had been sexually abused by the plaintiff upon the basis of the available material or the extent and degree of attempts to verify it. The plaintiff invited the Tribunal to adopt such a course, by cross-examination, but he was denied that opportunity. [Emphasis added.] [218] As mentioned, in the present case the complainant was not sought for cross-examination. 1. Similarly, it was not open to the Tribunal in the present case to reject, as having more than negligible weight, the complainant's statement, or those of her mother, father and uncle for that matter, when they had not been required for cross-examination. That was a denial of procedural fairness to the Children's Guardian. 2. It is also troubling that the Tribunal made frequent reference to a number of the statements being unsigned. Whilst it is true that initially unsigned statements were tendered, there was an affidavit from Detective Senior Constable Matthew Davis who deposed to having witnessed the statements of the complainant, her mother and her uncle. Detective Davis said, however, that it had not subsequently been possible to find signed copies of the statement. 3. The Tribunal said about this: [18] The applicant was charged on the basis of the complainant's evidence, contained in her unsigned police statement. We note the affidavit by Detective Senior Constable Matthew Davis dated 17 February 2020 in which he deposes that he had witnessed the complainant sign her police statement on 18 November 2016 but that the signed statement itself has not been able to be located. The signed statements of the complainant's mother and the complainant's uncle have similarly been unable to be located although signed police statements by the applicant's wife and the applicant's son have been provided to us. A signed statement by the complainant's father was recently discovered and provided to us. Further, the Tribunal noted at [58] and [65] that Detective Davis deposed to having witnessed the statements of the mother and the uncle. 1. In circumstances where the solicitor for the defendant had not required Detective Davis to be present for cross-examination to challenge his evidence of seeing the statements signed, it is difficult to understand why the Tribunal repeatedly referred to statements being unsigned when according little or negligible weight to them. 2. Further, despite acknowledging at [18] that a signed copy of the father's statement had been provided to it, the Tribunal erroneously referred at [78(5)] to the father's statement being unsigned. 3. There was evidence from a school friend of the complainant, "A", who in a police interview said that the complainant disclosed to her the abuse by the defendant. The Tribunal said of this evidence: [87] In her police interview that took place on 21 April 2017, the complainant's school friend 'A' stated that when she and the complainant had been in Year 3, the complainant told her she had been sexually assaulted by her uncle. This conflicts with the police statement of the complainant who said that the applicant had sexually assaulted her two weeks after her sixth birthday and that she had told her friend the following year which, it is not disputed, could not have been in Year 3. The disclosure could not have been made earlier, according to 'A', as she and the complainant had not been friends until Year 2. In light of the discrepancies between the complainant's account of the disclosure and 'A''s account, coupled with the fact that 'A' police interview was not contemporaneous (instead made in 2016) and that her evidence has never been tested, we give it negligible weight. 1. The Tribunal seems to have given this negligible weight for three reasons. First, the Tribunal said that she could not have been Year 3 when the disclosure was made. Secondly, the police interview was held in 2016 and was not contemporaneous with the events. Thirdly, her evidence was never tested. 2. The evidence was never tested because the defendant did not require her for cross-examination. As to its contemporaneity, in the absence of their being some suggestion of collusion between "A" and the complainant, it is difficult to understand the import of this reason. Nor is it clear why the complaint could not have been made when the complainant and "A" were in Year 3. The complainant said it was the following year after the first two assaults (at which time she was then aged six) when she told "A", and she said she remembered it was the beginning of Year 3. In her police interview "A" said that she thought the disclosure was made when they were in Year 3 although she did say (at A110): I don't remember what year, but I'm pretty sure its year 3. 1. The strength of "A"'s evidence was not when the complaint was made exactly, but the fact that it was made at all, and that the content of it did not significantly differ from the complainant's evidence. 2. It was not open in the circumstances for the Tribunal to give "A"'s evidence negligible weight. 3. As to the involvement of "K", the complainant's mother recounted in her statement a telephone call she received when the complainant was 11 or 12 years old from the mother of "K", who was a friend of the complainant. "K"'s mother said, "someone is molesting [the complainant], its (sic) [CF1]". 4. It may be accepted that if that statement was received as the truth of the assertion, it would be second-hand hearsay. However, the significance of the evidence was that the call was made. As with the evidence from "A", it showed that a complaint had been made contemporaneously with two of the offences charged, and prior to any issue of the defendant being involved with preventing the complainant staying at her boyfriend's house in 2016. 5. The Tribunal's approach to this evidence was to say at [61] that they would not accept it as evidence of the truth of the allegation. That decision is not challenged. The Tribunal also said: [86] Before us is evidence that the complainant disclosed to her father, mother, uncle and school friends 'K' and 'A' that her uncle had sexually assaulted her. For the reasons provided below, this evidence does not change our view that, on the evidence before us, we cannot be satisfied that the conduct the subject of the complainant's allegations ever occurred. … [88] In the absence of any evidence from the mother of the complainant's school friend 'K' and further details and clarification from the complainant's mother as to the mother's phone call to her, we give negligible weight to the unsigned and untested statement of the complainant's mother in relation to her conversation with the mother of 'K'. [89] The applicant gave oral evidence to the Tribunal in which he stated that shortly before her disclosure to her father, the applicant had forced the complainant to leave her boyfriend's house and return home, which had upset the complainant. The applicant gives this as a possible motive by the complainant to make the allegations he declares in his evidence to be false. In the absence of further evidence by the complainant, her father and her uncle to address the question of possible motive, we give negligible weight to the disclosures by the complainant of the alleged assaults. 1. For reasons already given, it was not open to the Tribunal in the circumstances to give negligible weight to the statements on the basis that they were "unsigned and untested". The solicitor for the defendant said that he did not want to cross-examine any of the makers of the statements, leading the Senior Member to ask, "Including [the complainant's mother]", to which he replied, "Correct". Further, as noted, the discussion by the Tribunal at [89] was misconceived when the non-hearsay evidence was that the call was made when the complainant "was about 11 or 12 years old", long before the issue of the complainant's boyfriend arose. (3) Finding the allegations were groundless 1. The Tribunal's reasons for finding that the allegations are groundless appear to be based on the following matters: (a) The Tribunal found the defendant and his wife to be open and credible witnesses; (b) The statements of the complainant, her mother, her father and her uncle were unsigned and untested; (c) The statement of "A" was not evidence that the complainant had been sexually abused by the defendant because the complainant did not give evidence about the matter; (d) There were matters in the complainant's statement that were contradicted by the defendant and his wife; (e) There were internal inconsistencies in the complainant's statement; (f) The evidence of complaint to "K" was of negligible weight because "K"'s mother did not give evidence, and because the statement of the complainant's mother was unsigned and untested. 1. I have already held that it was not open to the Tribunal to give negligible weight to the evidence of the complainant, her mother, father and uncle, including the evidence of the complaints to "A" and "K". 2. By contrast, the Tribunal had an untested statement of the defendant's son. The Tribunal noted two aspects of his evidence. The first was his evidence about whether the complainant ever slept over at his unit. The evidence rose no higher than saying, I don't ever remember [the complainant] sleeping over for a whole night. I don't remember if she slept the night. I was only really little as well so it's hard for me to remember if she slept the night. The second was his denial of the complainant's assertion that she had told him what his father did to her. The Tribunal said it "gave weight to the contents of his police statement", without explaining why that was so when it was also untested. If it was because the Tribunal had a signed statement from him, then that only highlights its error in giving negligible weight to the statements of the complainant, her mother, and uncle in the face of the unchallenged evidence of Detective Davis that they had signed their statements. 1. It is clear that the defendant and his wife made a favourable impression on the Tribunal members, and their evidence was accepted. However, an acceptance of their evidence does not of itself mean that the allegations are groundless. That is only a finding on the balance of probabilities and that leaves considerable scope for the possibility that the allegations were true. It should be recalled that the High Court in M v M spoke of cases where "the court has no hesitation in rejecting the allegation as groundless". Walton J made a similar point in CXZ where he said: [212] To the extent that the Tribunal may be found to have, by implication, made a finding as to whether the allegation was or was not groundless (contrary to the above conclusion), then the proper implication to be drawn from the decision of the Tribunal, when taken as a whole is, in my view, the Tribunal was inclined to the view the allegation was not groundless. [213] Thus, without suggesting the Tribunal expressly made a finding that the allegation was not groundless, and contrary to my primary conclusion, there are components of the decision which, as discussed below, support a finding that the Tribunal would not have, without hesitation, found the allegation to be groundless. That same approach is applicable to each of the allegations save for allegation 5 where the Tribunal did not appear to have traversed the question. [214] First, the Tribunal's statement that it "was unable to test the veracity of the complainant's version", and that the "AVO was made by consent and without admissions", demonstrated why the allegation was not made out to the requisite standard and also, implicitly, that there was material before the Tribunal which meant the allegation would not be dismissed as groundless, and the Tribunal did not do so. 1. Cases where the allegation can be dismissed as groundless are not cases where there is competing evidence which has to be weighed up. 2. The Tribunal had evidence that the DPP only withdrew the charges on the first day of the trial because the complainant indicated she did not wish to go ahead with the matter. It ought to have given some weight to the fact that the DPP considered the matter serious enough to charge the defendant. The Tribunal had evidence of a complaint made to "A" and an allegation that "K"'s mother had rung the complainant's mother to assert that the complainant had been "molested". The fact that these persons asserted that complaints had been made by the complainant at a time relatively contemporaneously, and well before any possible revenge motive was put forward by the defendant was significant. There was no challenge to any of these witnesses by cross-examination because of the way the defendant and his lawyers were conducting the proceedings. 3. It was not open to the tribunal in those circumstances to reach a conclusion that the allegations were groundless. 4. None of this is to say that if the Tribunal had determined the review according to law it could not have reached the same conclusion that it ultimately reached. However, the path it took to that conclusion was a wrong one. It is not possible to say what conclusion would have been reached if the Tribunal had followed the correct path as outlined in these reasons. The Act and the authorities, in particular M v M and CFW, allow for the fact that a Tribunal can be left in a state of agnosticism about whether the alleged sexual misconduct took place. Provided, however, the matters in s 30(1) are taken into account, and provided the Tribunal has regard to what is contained in s 30(1A), a clearance may be granted notwithstanding the uncertainty about the misconduct. Conclusion 1. The result is that the decision of the Tribunal must be set aside and the matter remitted to the Tribunal, differently constituted, to be determined according to law consistently with these reasons. 2. Accordingly, I make the following orders: 1. The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a working with children check clearance is set aside. 2. Remit the proceedings to the Tribunal, differently constituted, to be determined according to law. ********** Amendments 27 November 2020 - Quotes within paragraphs [57] and [58] anonymised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2020