Supreme Court New South Wales Medium Neutral Citation: Children's Guardian v CXZ [2019] NSWSC 1083 Hearing dates: 16 November 2018 Date of orders: 22 August 2019 Decision date: 22 August 2019 Jurisdiction: Common Law Before: Walton J Decision: The Children's Guardian shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment. Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Clearance – principles to be applied by Tribunal in considering risk – whether failure to apply principles in M v M – whether failure to properly consider risk in relation to allegations – whether failure to assess cumulative weight of allegations – whether inadequate reasons provided by the Tribunal – directions Legislation Cited: Administrative Decisions Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Family Court Act 1975 (Cth) Cases Cited: A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 BKE v Office of Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 BVT v Office of Children's Guardian [2016] NSWSC 1169 CFJ v Office of the Children's Guardian [2016] NSWSC 1625 CGD v Children's Guardian [2018] NSWSC 776 Children's Guardian v CFW [2016] NSWSC 1406 Children's Guardian v CKF [2017] NSWSC 893 Children's Guardian v BRL [2016] NSWSC 1206 CLD v Children's Guardian [2017] NSWSC 936 CMD v NSW Office of Children's Guardian [2018] NSWSC 1348 Commission for Children and Young People v V (2003) 56 NSWLR 476; [2002] NSWSC 949 Commissioner for Children and Young Persons v FZ [2011] NSWCA 111 CXZ v Children's Guardian [2018] NSWCATAD 36 DAR v Children's Guardian [2018] NSWSC 942 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 House v King (1936) 55 CLR 499; [1936] HCA 40 M v M (1988) 166 CLR 69; [1988] HCA 68 McGinn v Ashfield Council [2012] NSWCA 238 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Category: Principal judgment Parties: Children's Guardian (Plaintiff) CXZ (Defendant) Representation: Counsel: P Singleton with L Beange (Plaintiff) L Andelman (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Craig Milne & Company (Defendant) File Number(s): 2018/82822 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the grounds specified in s 8(1)(e) of that Act, the name and address of the defendant and any child referred to in the evidence before the Supreme Court and the name and address of any other person whose publication would identify their names and addresses not be published without leave of the Court and that the defendant be referred to as "CXZ". Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 36 Date of Decision: 02 December 2016 Before: S Leal, Senior Member; R Royer, General Member File Number(s): 2017/23607 Judgment 1. HIS HONOUR: On 1 October 2014, the defendant ("CXZ") applied for a working with children check clearance pursuant to s 13(1) of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act"). The defendant made the application for the purposes of supporting his youngest child's sporting activities and in order to provide an opportunity for working as a security officer in hospitals. 2. The pseudonym used for the defendant resulted from an order made by the Court under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) upon the ground found in s 8(1)(e) of that Act. 3. By s 8 of the Act, it is an offence for a person to work in child-related employment unless he or she has a "clearance" or has a pending application for one and is not subject to an "interim bar". 4. Once an application is made the provisions of Div 3 of Pt 3 of the Act were applicable, relevantly, ss 14 and 15(1)-(3) provide as follows: 14 Assessment requirements A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person. 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. 1. When CXZ applied for a "clearance", the Children's Guardian erroneously determined that it was required to conduct a risk assessment pursuant to s 14 of the Act because Sch 1 of the Act applied to CXZ as proceedings had been commenced against him for an offence of murder of an adult in 1996. However, as at 1 October 2014, Sch 1 of the Act did not apply to CXZ as the offence was not listed in Sch 1. 2. Murder was, at that time, a disqualifying offence in cl (1)(a) of Sch 2. However, CXZ was acquitted of that charge in 1997. 3. While CXZ did not dispute that the Children's Guardian had discretionary powers in s 15 of the Act to conduct a risk assessment of CXZ, he contended the relevance of the fact that CXZ was not subject to those assessment requirements arose in two ways, the first of which remains relevant. It was contended there was no onus on CXZ in the Civil and Administrative Tribunal of NSW ("the Tribunal") to demonstrate that he posed a risk to children as he proceeded as a person who had been refused a clearance within the meaning of s 27(1) of the Act. Section 28(7) of the Act was not applicable to him (it was common ground that the matter proceeded before the Tribunal under s 27 of the Act). 4. On 2 December 2016, the Children's Guardian by Director, Mr David Reeves refused to grant a working with children check clearance pursuant to s 20(1) of the Act. That decision was made appropriately pursuant to s 18(2) of the Act. 5. Section 18 of the Act provides as follows: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 1. The Children's Guardian gave reasons as required by s 20(3) of the Act. 2. By s 27(1) of the Act, if an application for a clearance is refused then the applicant may apply to the Tribunal ("the Tribunal") for an administrative review of the decision. By s 63 of the Administrative Decisions Act 1997 (NSW) ("ADR Act"), the Tribunal is to, inter alia, "decide what the correct and preferable decision is having regard to the material then before it". 3. The defendant made such an application on 3 January 2017. By a decision given by S Leal, Senior Member and R Royer, General Member, of the Administrative and Equal Opportunity Division of the Tribunal dated 4 February 2018, the Tribunal ordered that the decision of the Children's Guardian of 2 December 2016 be set aside and in lieu thereof that CXZ be granted a working with children check clearance: CXZ v Children's Guardian [2018] NSWCATAD 36 ("CXZ No 1"). 4. Clause 17(1)(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act") provides that a decision made by the Tribunal for the purposes of the Act is subject to appeal to this Court "on a question of law". 5. Such an appeal must be predicated upon "an identified question of law" or "an erroneous answer in respect of a question of law": see B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [2], [75] (per Allsop P) and [150] (per Basten JA). 6. Reference may be made to the observations of Beech-Jones J in BKE v Office of Children's Guardian [2015] NSWSC 523 ("BKE") at [35] as follows: [35] Provisions conferring appeals on a "question of law" are said to generally be "concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal" (Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15]; Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 at [71]). In Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 ("Lo") at [10] and [49] to [50] Basten JA and Macfarlan JA respectively treated an error of law as synonymous with a matter that can be raised in an appeal on a question of law. Beazley P agreed with both of their Honours (at [1]). This appears to be the logical consequence of the discussion in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [89] to [91] (per Hayne, Heydon, Crennan and Kiefel JJ). THE APPEAL 1. By a summons commencing an appeal filed 14 March 2018, the Children's Guardian brought an appeal from the decision of the Tribunal in CXZ No 1. Orders were sought setting aside that decision and remitting the proceedings to the Tribunal to be determined in accordance with law. Grounds of Appeal 1. There were two grounds of appeal. The primary ground of appeal was stated as follows: 1. The Tribunal erred at law by failing to apply M v M (1988) 166 CLR 69 (or failing to apply it properly) in that: (a) in respect of five particular allegations (namely those addressed at paragraphs [49], [51], [53], [64] and [65] of the Tribunal's reasons for decision) it failed to address whether or not the allegations were groundless; (b) if the Tribunal did not find the said allegations to be groundless – it failed to evaluate them and take them into account when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the Child Protection (Working with Children) Act 2012; and (c) in respect of all the allegations and evidence against the defendant that the Tribunal did not reject or find to warrant no weight, the Tribunal failed to evaluate and take into account the totality of the matters when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2). 1. The second and alternative ground of appeal was in the following terms: 2. In the alternative: The Tribunal erred at law by failing to give adequate reasons for its decision, in that: (a) it failed to reveal whether or not it found the five allegations mentioned at paragraphs [49], [51], [53], [64] and [65] of its reasons for decision to be groundless; (b) if it found any of the said allegations to be groundless – it failed to give reasons for any such finding; (c) it failed to reveal whether or not it took account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the Child Protection (Working with Children) Act 2012; (d) if it did not take account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) – it failed to give reasons for not doing so; (e) it failed to reveal whether or not, when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2), it took account of the totality of the allegations against the defendant that it did not reject or find to be of no weight; and (f) if it did not take account of the said totality when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) – it failed to give reasons for not doing so. The Notice of Contention 1. The defendant filed a Notice of Contention on 4 October 2018 ("the Contention"). No issue was taken as to the time of the filing of the Contention. 2. The details of the Contention were in the following terms: The defendant contends that the decision of the New South Wales Civil and Administrative Tribunal in CXZ v Children's Guardian [2018] NSWCAT 36 should be affirmed on grounds other than those relied on by the Tribunal below, but does not seek a discharge or variation of any part of the decision. 1. The grounds for the Contention were as follows: 1. The Tribunal should have admitted the documents referred to below into evidence but only for the limited purpose that the allegations they contained had been made. a. The Apprehended Violence Order made in 1995 referred to in paragraphs [49] and [51] of the Decision, b. The Apprehended Violence Order made in 2000 referred to in paragraph [53] of the Decision. c. The affidavit by the applicant's sister in law sworn in 2006 referred to in paragraph [64] of the Decision. d. The affidavit sworn in 2004 referred to in paragraph [65] of the Decision. THE LEGISLATIVE SCHEME 1. The Act, as its short title suggests, is protective legislation. It is calculated to protect children from the risk of harm that may be posed by a person working with them. Object 1. Section 3 specifies the objects of the Act as follows: The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. Paramount Consideration 1. Section 4 provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse" is the paramount consideration in the operation of the Act. Part 3 – Working with Children Check Clearances 1. Part 3 of the Act concerns the grant or refusal of clearances. 2. Division 3 of Pt 3 concerns the risk assessment of applicants for clearance. Section 15(3) specifies the matters the Children's Guardian may consider in undertaking a risk assessment. It raises similar considerations to those found in s 30. 3. Division 4 of Pt 3 concerns application for clearances and incorporates the aforementioned s 18. 4. The meaning of "risk" has been considered in many contexts. Relevantly, in Commission for Children and Young People v V (2003) 56 NSWLR 476; [2002] NSWSC 949 ("V"), in the context of considering the previous regime under the Child Protection (Prohibited Employment) Act 1998 (NSW), Young CJ in Eq held (at [42]): [42] …one does not define risk as meaning minimal risk. One would in any case … exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. (Young CJ in Eq considered a similar provision found in s 9 of the Child Protection (Prohibited Employment) Act 1998 (NSW)). 1. Although the Act has since been amended to provide a definition of "risk" that is similar to what Young CJ in Eq said in V (see s 5B), at the time of the Tribunal's decision in this case the Act did not define "risk" and V was authority as to its meaning. Part 4 – Reviews and Appeals 1. Part 4 deals with reviews and appeals. 2. Section 27(1) enables an application for review by persons who have had an application for children check clearance refused. 3. Section 28 concerns disqualified and ineligible persons. The presumption in s 28(7) is not applicable in this matter. 4. Section 30 applies to the review under s 27. That provision is in the following terms: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal. THE TRIBUNAL'S DECISION 1. At the outset, the Tribunal referred to a risk assessment undertaken by the Children's Guardian as follows (CXZ No 1 at [2]): [2] After having conducted a risk assessment for the applicant, the Children's Guardian, who is the respondent in this matter, refused to grant him such a clearance. The trigger for the risk assessment was a murder charge laid against the applicant in 1996, for which he was acquitted the following year. 1. The Tribunal returned to the issue of that charge under the heading "Acquittals for CXZ" with respect to "1996 charges" later in its reasons for decision. 2. The Tribunal next discussed "Legal Principles" which included the following discussion (at [12]-[14]): [12] The jurisdiction of the Tribunal under s 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. [13] In considering whether an applicant poses a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]. [14] In Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42], Young CJ in Eq (as he then was) said: 42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". 1. The Tribunal then posed the issues which it considered were raised in the proceedings as follows (CXZ No 1 at [18]): [18] The question for the Tribunal is whether the applicant poses a risk to the safety of children, particularly in light of (a) his criminal record; (b) charges laid against him; (c) domestic disputes; and (d) his work history as a security officer. 1. The Children's Guardian accepted this general statement of issues was correct. 2. There was then given a description of evidence before the Tribunal in the following terms (at [19]): [19] There was a large amount of written material tendered in this matter. Oral evidence was given to the Tribunal by the applicant and the psychiatrists, Dr Jones and Dr Allnutt. 1. As the Children's Guardian pointed out, there was no objection by either party as to the receipt of this material. Nor was there a request for persons for whom statements of evidence had been adduced, to attend proceedings for cross-examination. 2. The Tribunal nextly turned to the criminal record for CXZ, which was set out under two subheadings: "1995 offences" and "No conviction recorded". The Tribunal described both matters as being over 20 years old and not involving children. It was on that basis the Tribunal gave them "little weight" in "assessing the applicant's current risk to children". 3. The Tribunal then addressed what were described as "1996 charges" and "2009 charges" under the heading "Acquittals for CXZ". As to the former of those topics the Tribunal stated (at [26]-[28]): [26] As a young man, the applicant was charged with both the murder of his stepmother's partner and with malicious damage to his property by fire. The charges were dismissed at committal for lack of evidence. Some years later, the applicant told the police about his involvement in the death of his stepmother's partner. The applicant was found not guilty of murder, manslaughter or arson, by reason that he was acting as an automaton. It is not disputed that the killing of his stepmother's partner occurred almost thirty years ago, at the behest of the applicant's father and following a long history of sustained abuse of the applicant by his father. [27] In oral evidence before the Tribunal, the applicant denied that he would ever act in such a way again, telling the Tribunal that 'no-one will ever have the control over me that my father had over me.' [28] In determining the weight to be given to these events, we have taken into account that almost three decades have since elapsed. We have also considered the findings of the psychiatrists, Dr Jones and Dr Allnutt, who have each prepared reports for the applicant, details of which are set out below. We accept the expert evidence of the psychiatrists that the applicant's automatism was caused by an external factor, namely his father who was now dead, and that the event, which occurred thirty years ago, is historical and is not a relevant factor in assessing whether the applicant poses a current risk to the safety of children. 1. The Tribunal then considered CXZ's "history in security work". 2. Under the heading, "CXZ's family history and domestic disputes", the Tribunal traversed a number of considerations which attracted significant attention in submissions on this appeal. The Tribunal considered the broad issues raised by this heading under a number of subheadings or sections, which are set out below: 1. CXZ's relationship with his two wives (untitled); 2. "Apprehended Violence Orders" ("AVOs"); 3. "Family and Community Services material"; 4. "Family law documents"; 5. "2005 incident with daughter"; 6. "2008 report of son running away"; 7. "Narrative" (of CXZ's early life); and 8. "[CXZ] and relationship with siblings". 1. The findings in the first, second and fourth sections attracted significant attention and will be set out seriatim. 2. By the first section, CXZ's relationship with his two wives, the Tribunal gave consideration to evidence as to CXZ's two wives and acts of violence in that respect. The Tribunal's findings were as follows (at [41]-[49]): [41] The applicant has children with two former partners. To his first wife, he has two adult daughters. To his second wife, from whom he separated in 2002, he has three boys, the youngest of whom is 17 years old. We accept the applicant's evidence that he has been the primary carer of the two older boys since 2002 and the youngest boy since 2015. [42] His first wife alleged that the applicant had been violent to her. This is stated in Family and Community Services (FACS) notes from the mid 1990s which also state that "none of what she said appeared to 'ring true'; that she would tell one worker one thing then another something else" and that she was seen to have "very little parental attachment or responsibility taken for the children." [43] In oral evidence before the Tribunal, the applicant agreed that he had once slapped his first wife across the face. [44] In an affidavit prepared for these proceedings, the applicant spoke of the dysfunctional nature of his second marriage and the fact that he and his second wife would drink and take illicit drugs together. He denied ever having taken illicit drugs around their children and confirmed that he had not used illicit drugs for over ten years. [45] He stated that: I later discovered that during our periods of separation [my second wife] had contacted the police and made false allegations against me of assault, harassment, intimidation etc. I did not know about many of these allegations at the time and only found out about many of them either during the family law proceedings or as a consequence of the documentation obtained by the Children's Guardian. [46] The applicant denies ever having hit his second wife: I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional. However, [she] was always the aggressor. Throughout our relationship [she] was violent, controlling, aggressive and erratic…I have never punched her as she has claimed. My actions were always done in self-defence in response to [her] violence with the least amount of physical force possible…I cannot say what [her] motivations were for fabricating these allegations of violence against me other than that during and immediately after arguments she would be in a blind rage, after I left she contacted the police and made these allegations against me. [Her] behaviour was often erratic and irrational. Also, after separation we were involved in highly contentious child custody proceedings and she was seeking the full time custody of all three of our children. [47] In oral evidence before the Tribunal the applicant reiterated his statement that he had not hit his second wife but would simply defend himself when getting hit. No material was provided to dispute the applicant's evidence in this regard. [48] The applicant gave evidence that he is now single having separated from his partner of three years, who he described her as a quiet, gentle woman who brought out the best in him. He denied any violence in the relationship. [49] On the evidence before us, we accept the applicant's admission that he slapped his first wife. We also accept that the applicant's second marriage was volatile. The allegations that the applicant was physically violent towards his second wife are serious ones. In light of the applicant's evidence denying the allegations and the absence of evidence from the applicant's second wife, we cannot be satisfied on the balance of probabilities that the applicant was physically violent towards her. 1. Under the second section, the Tribunal dealt with two AVOs concerning CXZ (namely, the "1995 AVO" and the "2000 AVO"), as well as several entries recorded on the Computerised Operational Policing System database (described by the Tribunal as "COPS event records") (CXZ No 1 at [50]-[55]). Those considerations are extracted below:: [50] A final apprehended violence order (AVO) was issued against the applicant in 1995. In his statement, the applicant clarified that the AVO had been made for the protection of his first wife, by consent and without admissions, following allegations by his first wife that the applicant had made threats against her and her then partner. The applicant explained that he had been concerned that the partner had been sexually assaulting his daughters and that 'the 1995 AVO arose in circumstances where I was trying to protect my children from harm.' [51] Given that the AVO was made by consent and without admissions and that we have been unable to test the veracity of the complainant's version, we cannot make any positive findings about the alleged conduct of the applicant. [52] In 2000, an interim apprehended violence order was issued against the applicant for the protection of the applicant's second wife but, according to the applicant's statement, did not proceed to a full order. According to court papers before the Tribunal, however, an AVO was issued against the applicant on 22 June 2000 for a period of twelve months. [53] Given the lack of evidence from the complainant and the lack of details as to the circumstances of the AVO being granted, we cannot make any positive findings about the alleged conduct of the applicant. [54] Several COPS events records dating between 1999 and 2001 relate alleged incidents of violent behaviour by the applicant towards his second wife. [55] On the evidence before us, we are satisfied that from the mid 1990s to 2001, the applicant's relationships were dysfunctional and marred by allegations of violence. We accept the applicant's evidence that he has slapped his first wife. Later in this decision, we give consideration to allegations of violence within the applicant's second marriage in the context of a case summary report prepared by the Independent Children's Lawyer appointed by the Family Court during custody proceedings for the applicant and his second wife. 1. Mention should also be made of the third section of the Tribunal's consideration of CXZ's family history and domestic disputes, namely, "Family and Community Services material". The Tribunal attached little weight to notifications to Family and Community Services. The Tribunal stated (CXZ No 1 at [56]-[57]): [56] Before the Tribunal are notifications to Family and Community Services (FACS) in relation to the applicant, which include apparent notifications from the applicant's first wife. Notes from FACS caseworkers cast doubt on the reliability of the accounts by the applicant's first wife and her ability to care for the children. For this reason, and in the absence of evidence by the applicant's first wife, we give little weight to the notifications. [57] Later notifications were made by the applicant's second wife in the course of acrimonious family law custody proceedings, which resulted in the applicant being favourably assessed and subsequently being given the primary care of his elder sons. For these reasons and in light both of the applicant's denial of the allegations and the absence of evidence from the applicant's second wife, we give little weight to the notifications. 1. The fourth section concerned family law documents. It involved an extensive discussion in which attention was primarily directed to the consideration of two affidavits: the 2006 affidavit of CXZ's sister-in-law and the 2004 affidavit of CXZ's former partner. The following is an extract from that section of the decision (at [58]-[65]): [58] On 9 November 2006, orders were made in the Family Court that the applicant's two elder sons live with the applicant and have weekend and holiday contact with their mother. Orders were made for the youngest son to live with his mother and to have weekend and holiday contact with the applicant. [59] A 2006 expert (Chapter 15) report prepared for the Family Court by the psychiatrist, Associate Professor Quadrio, found that the three boys were 'more strongly attached to their father than to their mother.' Associate Professor Quadrio found that the youngest child, despite living with his mother, showed very little evidence of attachment to her. This gave Associate Professor Quadrio 'cause for considerable concern about the quality of her parenting.' [60] Associate Professor Quadrio also found that the mother impressed 'as a disorganised, traumatised personality, much preoccupied with her own trauma and it [is] likely that she has difficulty focusing on the needs of her children.' [61] By contrast, Associate Professor Quadrio made the following observations in relation to the to [sic] applicant: The father's commitment to the children appears to be quite unreserved… [He] presents as very child-focussed, he has considerable warmth and affection and relates to the children with lots of physical affection… He has led a very traumatised and traumatising life himself and has had a grossly abnormal upbringing and it was a considerable challenge for him to overcome those difficulties and provide a stable and appropriate environment for his children, yet it appears that he has been able to do so. He is strongly committed and motivated and the impression is that with assistance and guidance he can continue to provide reasonably well for the children…The father appears to have the best interests of the children at heart and seems capable of protecting them from harm. [62] She recommended that 'provided that the court determines that the father's commitment to the children and his personal rehabilitation is sincere and that the commitment he expresses is genuine then I would recommend primary residence of all three children with the father.' It was her view that 'the three children would benefit from remaining together and that the father appears to provide far more stability than is true of the mother.' [63] Given the expertise of Dr Quadrio and the comprehensive nature of the report, we give weight to it in our assessment of the applicant. [64] An affidavit by the applicant's sister-in-law sworn in 2006 is before us. In it, she describes the applicant as overbearing, manipulative and argumentative and states that the applicant's second wife told her that the applicant had been hitting her. It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife. The applicant contested the truth of allegations and applicant's sister-in-law was not cross-examined on the affidavit at the time of the family law proceedings, nor did she give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant of the basis of the material contained in it. [65] An affidavit from the former partner of the applicant sworn in 2004 is before us. In it, she describes threatening behaviour by the applicant in 2002 and 2003 in relation to his contact with the children. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it. 1. The Tribunal continued to set out evidence in relation to family violence as follows (CXZ No 1 at [73]-[77]): [73] The case summary by the Independent Children's Lawyer filed on 2 November 2006 notes that the applicant's three sons had a good relationship with their father while their relationship with their mother was problematic. In relation to family violence, the Independent Children's Lawyer stated that: This is a major issue in the proceedings. All children demonstrate behaviour consistent with being exposed to family violence, both between the parties and in the parents' household. Both parties admit to violence towards the other, in their lives together, to which the children were exposed. [74] We give some weight to this case summary as an expert opinion in relation to the situation of the applicant's sons in 2006. On the evidence before us, we accept that the children witnessed violence between their parents. [75] In her affidavit sworn in 2004, the applicant's daughter describes an acrimonious relationship with her father. It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant gave evidence to the Tribunal in relation to his earlier relationship with his daughter. Taking into consideration the applicant's evidence and the affidavit by the daughter, we accept that the relationship had been at times acrimonious but do not accept that the applicant was violent towards his daughter. [76] In her affidavit sworn in 2006, the applicant's first wife describes his violence towards her. In oral evidence to the Tribunal, the applicant admits having slapped his first wife. Considering his evidence together with the affidavit of his first wife, we accept that the applicant had been physically violent towards his first wife by slapping her. [77] In her affidavit sworn in 2006, the applicant's second wife describes her relationship with the applicant and his treatment of their children. In oral evidence to this Tribunal, the applicant disputed the contents of the affidavit which, it is agreed, was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife, who was not cross-examined on the contents of the affidavit either during the earlier proceedings or before this Tribunal. On the evidence before it, the Tribunal accepts that the relationship between the applicant and his second wife was marked by some physical violence. 1. After referring to references for CXZ, the Tribunal dealt with psychiatric reports and discussed CXZ's evidence in the proceedings. 2. Given the reliance placed by CXZ upon the psychiatric reports, it is appropriate to refer to some aspects of the Tribunal's reasoning in that respect. 3. Two psychiatrists prepared reports for the proceedings before the Tribunal, as follows: 1. An initial and supplementary risk assessment report was prepared by Dr Matthew Jones, a psychiatrist engaged by the applicant. 2. An initial and supplementary risk assessment report was prepared by Dr Stephen Allnutt, a psychiatrist engaged by the Children's Guardian. 1. The expertise of Drs Jones and Allnutt was not disputed by the parties. 2. As to Dr Jones' report, the Tribunal observed (CXZ No 1 at [95]-[96]): [95] Dr Jones noted that the applicant conceded a history of domestic violence with his second wife and that there was 'bilateral physicality' but that he had never been charged with any violent offences related to domestic violence despite there having being a number of apprehended violence orders in place over the course of the relationship. He also noted that 'there are no offences directed towards children, nor are there offences of a sexual nature towards adults or towards children.' [96] In finding that the applicant does not pose a real and appreciable risk to the safety of children, Dr Jones made the following observations: [CXZ] is currently psychiatrically well and has good insight into his history and came across as an open and forthcoming historian. He currently has no specific treatment needs and is at no increased risk of relapse with respect to any drug or alcohol behaviour and is at the low risk of relapse with respect to any criminal behaviour. He is currently living a productive and meaningful existence and, despite criminality in his distant past, came across as a pro-social individual. From a forensic psychiatric perspective, there is no evidence to suggest any increased risk specific to children for my violence, abuse, Neglect or sexual perspective. Even given his history of criminal behaviour and drug and alcohol use, which would normally indicate a general increase of recidivism, he would still likely be considered low risk due to positive factors both in the history and in an ongoing sense. 1. As to the opinion of Dr Allnutt, the Tribunal noted that "Dr Allnutt found the applicant to pose a low risk to the safety of children" (CXZ No 1 at [100]). 2. The Tribunal then turned to CXZ's evidence in the proceedings as follows (at [108]-[109]): [108] The Act imposes a duty on the applicant to disclose all relevant matters: s 27(4) of the Act. The applicant gave oral evidence to the Tribunal about which he was cross-examined at some length. In considering the totality of his evidence, we found the applicant to be a truthful and reliable witness. [109] We accept that the applicant was fined for the offences of theft and assault police that occurred in 1995. On the evidence before us and in light of the applicant's oral evidence to the Tribunal, we are not satisfied that the applicant deliberately concealed this conviction. For this reason, we do not find him in breach of the provisions of s 27(4) of the Act. 1. In the concluding stages of the decision, the Tribunal considered the factors set out in s 30(1) of the Act, addressing each factor seriatim. 2. The defendant placed particular reliance on the Tribunal's findings with respect to s 30(1)(b): "the period of time since those offences or matters occurred and the conduct of the person since they occurred". The Tribunal's findings in this respect were (at [115]-[124]): [115] Over thirty years have passed since the homicide occurred and it has been twenty years since the applicant was acquitted of the charge of murder in 1997. [116] Since this time, he has had no criminal convictions. In 2000, an AVO was made against him. In the absence both of details of the granting of the AVO and any evidence from the complainant, we do not give it any weight in determining whether the applicant currently poses a risk to children. [117] In the course of acrimonious family law proceedings, charges of intimidation and assault that had been laid against the applicant in relation to the applicant's second wife were either dismissed or withdrawn. In the absence of evidence from the complainant, we are unable to make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters. [118] A wealth of documentation from the 2002 and 2003 Family Law proceedings is before us, including statements alleging violence by the applicant, details of which are set out above. On the evidence before us, it would appear that the statements were not subject to cross-examination before the Family Court nor did the makers of the statements give evidence before this Tribunal. Given the serious nature of this matter, we are not satisfied, on the evidence before us, that we can make any positive findings about the conduct allegedly attributed to the applicant in relation to these matters. [119] We accept the applicant's evidence that he had slapped his first wife. On the basis of the case summary report prepared by the Independent Children's Lawyer in the applicant's family law proceedings, we accept that his sons witnessed violence between their parents. On the evidence before us, we accept that have been no further allegations of violence between the applicant and his second wife and that the applicant is seen to be a loving and caring father. [120] In the course of these Family Law proceedings, allegations were made that, as a child, the applicant sexually assaulted his brother, who is two years his junior, and inappropriately touched his sister, who is a year older than him. On the evidence before us, we accept that sexual contact took place between the applicant and his brother when they were both children and that the applicant inappropriately touched his older sister, again when they were both children. As set out above, given the historical nature of the incidents and in light of the opinions of Dr Jones and Dr Allnutt that the incidents do not increase the applicant's current to children, we give them little weight in assessing the applicant's current risk to the safety of children. [121] There have been a series of notifications to FACS/DOCS since the applicant's acquittal in 1997, many of which appear to have been made by the applicant's first wife, whose reliability was questioned by caseworkers, and by the applicant's second wife, in the context of acrimonious family law proceedings that resulted in the applicant being given the primary care of his elder sons. As set out above, in the absence of corroborating material, we are unable to make any positive findings in relation to these notifications. [122] There are COPS event records for the applicant in relation to a dispute with his daughter in 2005 and a dispute with his son in 2008. Having assessed the evidence before us, as set out above, we give it little weight in an assessment of the applicant's current risk to children. [123] In 2009, the applicant was acquitted of a charge of assault. Whilst we accept that the applicant showed a lack of judgement during the incident, for the reasons set out above, we give little weight to it in assessing whether the applicant poses a current risk to the safety of children. [124] We have noted the applicant's long working history as a security officer and given the lack of evidence before us, we are unable to make any positive findings in relation to the small number of COPS events involving incidents at venues where the applicant had been working as a security officer. It is not contested that during the applicant's long working history as a security officer, he has not been subject to any disciplinary proceedings. 1. The Tribunal also referred to the information given by CXZ in, or in relation to, the application, pursuant to s 30(1)(j),as follows (at [139]-[141]): [139] The applicant has given evidence that he has been a single father for the past fifteen years, initially with the full-time care of his two elder sons and now also with the full-time care of his youngest son. [140] A reference from his doctor, who was not required for cross-examination, describes the applicant as a caring and loving father and states that he sees 'no problem with him working and caring for children.' [141] The applicant also submits that over the past 30 years, he has successfully rehabilitated himself during which time he has had a long working history as a security officer and has successfully parented his children. 1. In the Tribunal's conclusion as to s 30(1) factors, it expressed the view that CXZ did not "pose a real and appreciable risk to children" (CXZ No 1 at [143]). The reasons for that conclusion are extracted in full below (at [144]-[153]): [144] We accept that the applicant was subjected to abuse from his father during his childhood and early adulthood. We accept that, in the context of this relationship, as an eleven-year-old boy, the applicant inappropriately touched his twelve-year-old sister. We also accept that he and his younger brother (who is two years younger than him) engaged in sexual activity as children. In the absence of oral evidence from the applicant's brother, we accept the findings of Dr Allnutt and Dr Jones that, on the evidence, this amounted to sexual experimentation in the context of a dysfunctional upbringing rather than being indicative of abuse by the applicant. [145] We also accept that during the 1990s, the applicant was charged with an offence of social security fraud and an offence of stealing. No conviction was recorded for either charge. Given the nature of each charge, the time that has now elapsed and the fact that no conviction was recorded for either matter, we find these matters to be of no relevance to an assessment of whether the applicant currently poses a risk to the safety of children. For this reason, we give no weight to them. [146] In 1997, the applicant was acquitted of the murder of his stepmother's partner on the basis that he was acting as an automaton. The facts and circumstances of the killing are confronting and difficult. We give weight, however, to the opinion of both the psychiatrist engaged by the applicant, Dr Jones, and that of the psychiatrist appointed by the Children's Guardian, Dr Allnutt, that the killing occurred as a result of the applicant's father's abusive control over him and, given that his father is now dead, would not reoccur. That the two psychiatrists concur in this opinion gives us further confidence in their individual assessments. On this basis, we find that, despite the awful circumstances of the killing, it is of little relevance to a consideration of whether the applicant currently poses a risk to the safety of children. [147] We accept that the applicant was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant's children witnessed violence between their parents and accept this this would have been detrimental to them. [148] On the evidence before us, we are satisfied, however, that the domestic violence between the applicant and his second wife is no longer ongoing. We give weight to the Family Court orders in 2006 giving primary care of his two elder sons to the applicant and note the requirement of the Court to consider the best interests of the children in the making of orders. We also give weight to the findings of Dr Quadrio in her report to the Family Court in which she found the applicant to be a caring and involved parent to his sons. [149] We are not satisfied that the applicant's behaviour towards his daughter in 2006 was physically violent. In the absence of oral evidence by the applicant's daughter, we accept the applicant's evidence that he had marched her down the stairs in response to her behaviour. We accept the applicant's evidence that he would now manage the situation differently and would not have told his daughter to leave the house in response to her behaviour. [150] We have given some weight to the altercation that occurred at the fast food outlet in 2009. We find the applicant's behaviour to have been ill-considered and note his evidence to us that he should never have got out of his car. We accept the findings of the magistrate that the applicant acted in self-defence. [151] We note that the applicant has worked as a security guard for 28 years in volatile and often violent locations and give weight to the fact that, on the evidence, the applicant has never been charged for an offence during his employment. We also give weight to the evidence before us, undisputed by the Children's Guardian, that the applicant has held his current security licence for a decade. We note that it is a prerequisite of the grant of a security licence that an applicant be a fit and proper person and that it would be in the public interest for the applicant to hold such a licence. (see s 15(1) and s 15(3) of the Security Industry Act 1997) [152] Although much of the evidence before us deals with events that took place up to thirty years ago, our task is to assess whether the applicant currently poses a real and appreciable risk to children. [153] In determining that the applicant does not currently pose a real and appreciable risk to children we have given particular weight to: • the findings of the psychiatrists Dr Allnutt, engaged by the Children's Guardian, and Dr Jones, engaged by the applicant, each of whom determined the applicant to be a low risk – rather than a real and appreciable risk - to the safety of children; • the evidence before us that in 2006 the Family Court placed the applicant's two older sons in the applicant's care where they remain; • the evidence before us that the applicant is an attentive and caring father who has been the primary carer of his elder sons since 2002 and that of his youngest son since 2015; • the fact that, for the past decade, there have been no DOCS or FACS reports in relation to the applicant or his children. SUBMISSIONS FOR THE CHILDREN'S GUARDIAN Ground 1 Principles in M v M and CFW 1. The Children's Guardian contended the principal ground of appeal was that the Tribunal had erred in failing to apply M v M (1988) 166 CLR 69; [1988] HCA 68 ("M v M") as it was required (in a decision given under s 27 of the Act) by the authority in Children's Guardian v CFW [2016] NSWSC 1406 ("CFW"). In a refinement during oral submissions, the Children's Guardian contended that, in substance, the Tribunal failed to apply s 18(2) of the Act by omitting to assess risk in accordance with those judgments (CXZ did not object to this refinement to the ground). It was also contended that a further question of law raised by this ground was whether or not the Tribunal had failed to discharge its duty to hear and dispose of the case presented by a party before it. 2. The starting point for the submissions of the Children's Guardian was that the approach adopted in the High Court in M v M was applicable to proceedings in the Tribunal for review of a refusal of a clearance. 3. The foundation for that contention was the decisions of this Court in BKE at [33] (per Beech-Jones J) and CFW at [13] (per Harrison J). 4. It was upon that foundation, the Children's Guardian contended that it was well established that a three step approach to assessing risk under the Act had been endorsed in the High Court in M v M, which was described in the submissions of the Children's Guardian as set out below. 5. As to the first and second steps, in light of that authority, the Children's Guardian submitted: Therefore, if the Guardian relies on allegations of wrong-doing by an applicant (as she did in this case), the Tribunal should first decide whether or not it is satisfied on the balance of probabilities that the allegation is true (and if it is so satisfied then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has 'no hesitation in rejecting the allegation as groundless' (in which case it proceeds to determine the case on the basis that the allegation is untrue) [CFW at [14]]. 1. As to the third step, it was submitted: If in respect of an allegation the Tribunal reaches neither of the satisfactions just mentioned then the Tribunal 'is still obliged to consider questions of risk that may be indicated by all the facts' [CFW at [15]]. (It is submitted that the reference to 'all the facts' includes, e.g., the fact that an allegation has been made and facts relevant to assessing the weight of the allegation.) Even if an allegation, or set of allegations, is not proven on the balance of probabilities, 'if "a lingering doubt or suspicion remains" then this should count against the [applicant]' [CFW at [16]]: that is, if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused. 1. In a written submission in reply, the Children's Guardian disputed CXZ's contention there was no authority for a three step process, submitting: That claim, however, is inconsistent with the plain meaning of M v. M at 77, with the plain meaning of Harrison J in CFW at [13]-[17], and with McCallum J's reference, in CMD v. NSW Office of the Children's Guardian, to 'the three-stage analysis explained by Harrison J.' [Footnotes omitted.] 1. As to the third step, the Children's Guardian relied upon CFW at [16] and [17]. It was submitted that decision has been consistently approved. Reference was made to CFJ v Office of the Children's Guardian [2016] NSWSC 1625 ("CFJ") at [72] (per Schmidt J). 2. As to the observations of Davies J in Children's Guardian v CKF [2017] NSWSC 893 ("CKF") and the discussion, in that decision, of CFW, the following submissions were advanced: 9. It is very respectfully submitted that there is no material difference between the conclusions of Harrison and Davies JJ. Accepting that Davies J was correct to say that 'an open finding or "a lingering doubt or suspicion"…is simply a matter to be considered', it is surely also correct - at least in practical terms, and at least in all but the rarest conceivable case - to say, as Harrison J did, that a suspicion of wrong-doing will, when considered, 'count against' the wrong-doer, in whatever degree the Tribunal thinks appropriate. How could a suspicion of wrong-doing by an applicant count for him or her? Furthermore, the mere fact that Harrison J made a point that did not appear in earlier cases (except BSR) does not make Harrison J wrong: many a case has taken a further step in the development of the law. 10. It should be noted, however, that the issue just discussed does not need to be resolved in this case (even if it were amenable to resolution by a single judge [as to which see DAR v Children's Guardian]). [Footnotes omitted.] 1. Further, it was submitted that Davies J accepted there was a three step process and the only point of departure was whether doubt "counts against the defendant or is…simply a matter to be considered". It was accepted Davies J's position was technically correct but it was difficult to conceive where an allegation of abuse may be favourable to an applicant. 2. In reply, it was submitted that CXZ's contention that CFW was wrong and inconsistent with BKE should be rejected. Reference was made to the observations of Beech-Jones J in BKE at [33]. It was submitted: His Honour said that, subject to two caveats not presently relevant, 'the reasoning in M v. M is applicable to fact finding and the process of risk assessment that NCAT undertakes.' That is what Harrison J in CFW took Beech-Jones J to mean and both judges were correct. 1. As to CXZ's contention that there was contrary authority to the "notion of 'lingering doubt' or 'suspicion'" as a proper basis for fact finding and risk assessment in a review, the rejoinder by the Children's Guardian (by reference to the authorities summarised below in CXZ's submissions) was as follows: (1) In CFJ v. Office of the Children's Guardian, Schmidt J accepted the analysis given by Harrison J in CFW. At [31], her Honour opined that '[t]he assessment of whether [an applicant] posed such a risk had to be approached in the way discussed by Harrison J in…CFW…at [14]-[17]'. At [70], her Honour said that '[a]s Harrison J explained…what the Tribunal first had to consider was "whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had "no hesitation in rejecting the allegation as groundless".' And, at [72], her Honour opined: 'Unless the Tribunal determined that the allegations that CFJ had viewed such images were groundless, even if no positive finding that he had accessed such images could have been made on the evidence, questions of whether he posed a risk to the safety of children would still have had to be determined by the Tribunal in the way discussed in CFW at [16] and M v. M at 77).' (2) In Children's Guardian v. CFK, Davies J did not reject the relevance of any lingering doubt or suspicion that might remain after the first two steps had been taken (without a conclusion). Rather, his Honour said that such doubt or suspicion is 'a matter to be considered when all of the evidence is weighed up in assessing whether the defendant poses a risk to the safety of children.' (Davies J differed from Harrison J only on whether such a lingering doubt or suspicion was 'simply a matter to be considered' or was to be 'counted against' an applicant. That is not a difference [if it is a difference] that needs resolution in this case, nor could it be resolved at any level lower than the Court of Appeal.) (3) In CGB v. Children's Guardian, Harrison AsJ expressed her agreement with, and preference for the opinion of, Davies J, rather than Harrison J, on the point just mentioned. Her Honour did not otherwise disagree with Harrison J. [Footnotes omitted] 1. It was further submitted in reply: Harrison J's application of M v. M to cases under s. 27 of the Act was consistent with M v. M and BKE. Save for the fine, and presently immaterial, qualification advanced by Davies J, Harrison J's analysis has been approved, applied or favourably mentioned by at least McCallum, Davies, Schmidt, and Adamson JJ, and Harrison AsJ. The Court would be especially slow now to find that Harrison J was plainly wrong. His Honour was right. 1. In CFW and CFJ, it was found that the Tribunal must assess the weight to be given to an allegation that was "neither proven to the usual standard nor rejected as groundless". The Tribunal must first decide "what weight it will give and accumulate those matters and then decide what does that say about the statutory test". Failure to Apply Principles in M v M 1. The Children's Guardian submitted that the Tribunal made no reference to M v M, CFW or BKE. It was accepted that such an omission was not alone sufficient to show the Tribunal did not apply the correct law but the omission was relevant in determining the appeal, particularly in the light of the fact that the Tribunal's reasons referred only to the first of the three steps in the reasoning process. The Tribunal found that certain allegations were not proven on the balance of probabilities but the reasons for decision made no mention of the Tribunal's having considered the second and third required steps with respect to five allegations raised by the Children's Guardian (discussed further below). 2. In reply to a contention by CXZ, it was submitted the Court should reject CXZ's submission that there was no obligation to consider every single allegation made by the Children's Guardian and determine whether it was groundless or not. The Tribunal was required to consider allegations that were "material" and "had not already been found proven on the balance of probabilities". It was submitted: 9. … The five allegations identified in the particulars subscribed to Ground 1 in this appeal were substantial, both in the sense that the alleged matters were significant (violence in various contexts) and in the sense that they were advanced clearly and directly in a reputable form (affidavits and apprehended violence orders made by consent, albeit without admission). Furthermore, the Tribunal treated them as significant, in that it addressed whether or not it considered them proven on the balance of probabilities. 10. In this context, there is no basis for accepting that the Tribunal was not obliged to complete its consideration of those five allegations in the way required by law. No authority for that proposition is cited by the defendant: to the contrary, it submitted, at DS [31], that 'NCAT is obligated to weigh evidence….' 11. When dealing with an application under s. 27 of the Act, as this case was, the Tribunal is obliged to consider the whole of the case adduced by the Guardian. This was not a case in which the five allegations could be ignored because the Tribunal reached a conclusion favourable to the Guardian on the basis of other evidence (thus obviated the need for further allegations to be considered), or could be ignored for some other reason; and this is not a case in which the Tribunal found that the five allegations so minor that they need not be mentioned in its reasons. Rather, this is a case in which the Tribunal neither undertook the required steps of analysis, and thereby considered the case that was put before it by the plaintiff, nor followed a path that avoided the need to take those required steps. 1. The Children's Guardian contended that when the Tribunal had reached conclusions, such as "we cannot make any positive findings", the Tribunal had made no positive finding against CXZ under the first step (contrary to the submission of the Children's Guardian below) but then failed to consider, as it was required to do by law, whether or not the five allegations relied upon by the Children's Guardian were groundless. This conclusion was to be inferred by the failure of the Tribunal's reasons to contain any express statement or an implication that it proceeded to deal with those questions. 2. It was accepted that the way the Tribunal expressed its conclusions, in this respect, was capable of two possible constructions. The first was that no affirmative finding was made that the allegations were groundless (resulting in a failure to consider the second step). The second option was the Tribunal made, in fact, no definitive finding which, in that respect, could encompass the first and second steps (in which case it could not be said the Tribunal failed to consider the issue of whether the allegations were groundless). 3. It was conceded that the Tribunal may choose to address all issues "at once". It was, however, unclear whether the Tribunal directed its mind to the second step issue and made a positive finding that the allegation was not groundless or simply failed to address the question. The ultimate submission of Children's Guardian was that the Tribunal had failed to address whether the allegation was groundless and, therefore, failed to reach any conclusion that the allegations were groundless. 4. The Children's Guardian went further to contend that, insofar as the Tribunal's reasons gave any insight into what the Tribunal would have found as to the allegations, it appeared that the Tribunal would not have found the allegations to be groundless. 5. It was also contended, if the Tribunal did address the second step, in any event, it was clear that it failed to address the third step as to any "lingering suspicion". That issue did not involve a singular allegation but five. It was necessary for the Tribunal to consider the "accumulated weight" of suspicions held as to each such allegation. The Children's Guardian made the following further submissions in that respect: It follows that the Tribunal would or should (or at least could) have held 'a lingering doubt or suspicion' about each of the allegations and therefore was obliged to take account of those doubts or suspicions (to whatever extent that the Tribunal saw fit) when discharging its obligation 'to consider questions of risk that may be indicated by all the facts'. There is nothing to suggest that the Tribunal either adverted to the question of whether or not it had a lingering doubt or suspicion or attended to the task of assigning weight to any of the five matters under discussion when evaluating the risk that might be posed by [CXZ]. Error is thus established. The Allegations 1. The five allegations relied upon by the Children's Guardian ("the allegations") and the corresponding references to CXZ No 1, will be addressed, in turn, in the order set out in the written submissions of the Children's Guardian, namely: 1. The first allegation and [51] of CXZ No 1 ("allegation 1"); 2. The second allegation and [53] of CXZ No 1 ("allegation 2"); 3. The third allegation and [49] of CXZ No 1 ("allegation 3"); 4. The fourth allegation and [64] of CXZ No 1 ("allegation 4"); and 5. The fifth allegation and [65] of CXZ No 1 ("allegation 5"). 1. The Children's Guardian's submissions, in that respect, are set out below together with supplementary submissions made in relation to the same. Allegation 1 1. As to the allegation 1, the Children's Guardian submitted: On the fact that in 1995 an apprehended violence order had been made for the protection of [CXZ's] first wife 'following allegations by his first wife that [he] had made threats', the Tribunal held: [51] Given that the AVO was made by consent and without admissions and that we have been unable to test the veracity of the complainant's version, we cannot make any positive findings about the alleged conduct of the applicant. (It is not submitted that 'cannot' was intended as a statement of law or even as intended literally [which would have rendered the statement erroneous]: it should be taken it to mean that the Tribunal did not consider the evidence strong enough to justify a positive finding.) 1. It was further submitted, the Tribunal had found that no finding was available on the balance of probabilities that the applicant made threats to his first wife and her then partner. The Children's Guardian repeated its submission that the Tribunal had not found the allegation as groundless, although if it had turned its mind to that issue it appears the Tribunal would have found the allegations not to be groundless. However, the Tribunal did not take the third step and gave the allegation no weight. Allegation 2 1. As to allegation 2, the Children's Guardian contended: On the fact that another AVO was made in 2000 for the protection of [CXZ's] second wife, the Tribunal held: [53] Given the lack of evidence from the complainant and the lack of details as to the circumstances of the AVO being granted, we cannot make any positive findings about the alleged conduct of the applicant. 1. It was submitted that the Tribunal had "conceivably" taken the second step but had failed to take the third. Allegation 3 1. As to allegation 3, the Children's Guardian submitted: On later allegations made by [CXZ's] second wife, the Tribunal concluded: [49] … we accept the applicant's admission that he slapped his first wife. We also accept that the applicant's second marriage was volatile. The allegations that the applicant was physically violent towards his second wife are serious ones. In light of the applicant's evidence denying the allegations and the absence of evidence from the applicant's second wife, we cannot be satisfied on the balance of probabilities that the applicant was physically violent towards her. 1. It was submitted the Tribunal failed to take the second and third steps in this respect. Allegation 4 1. As to allegation 4, it was submitted: On a 2006 affidavit from [CXZ's] sister-in-law, in which she described [CXZ] as 'overbearing, manipulative and argumentative and state[d] that [CXZ's] second wife told her that [CXZ] had been hitting her', the Tribunal concluded: [64] … It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife. The applicant contested the truth of allegations and applicant's sister-in-law was not cross-examined on the affidavit at the time of the family law proceedings, nor did she give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant of the basis of the material contained in it. 1. The Children's Guardian contended that the Tribunal failed to make a finding as to whether the allegation was groundless and/or gave the allegation no weight having regard to the third step. Allegation 5 1. As to allegation 5, the Children's Guardian submitted: On a 2004 affidavit from a former partner of [CXZ] in which she 'describe[d] threatening behaviour by [CXZ] in 2002 and 2003 in relation to his contact with his children', the Tribunal concluded: [65] … It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it. 1. The oral submissions for allegation 4 were repeated for this allegation. Conclusions by the Tribunal 1. The Tribunal may have addressed, it was contended, the second and third steps in its concluding remarks (CXZ No 1 at [143]-[153]) but it failed to do so. The Children's Guardian, in that respect, relied upon the following propositions: 1. There was nothing express in those remarks (for example, a reference to the tests) that showed that the Tribunal adverted in to the task described in M v M. 2. The remarks did not include a synthesis of the whole of the evidence. They merely recited some of the major items individually and assigned weight to them (not being the allegations in question). 3. The Tribunal came closest to dealing with the subject matter of the allegations at [147], where it said the following: [147] We accept that the applicant was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant's children witnessed violence between their parents and accept this this would have been detrimental to them. 1. However, that passage did not overlap with the allegations and reinforced the conclusion that the five matters, having been found unproven on the balance of probabilities, were completely ignored. 1. There is an absence of an overall synthesis by the Tribunal as to which of those conclusions are most important or attracted the greatest weight. As to [147] of the reasons for decision, that paragraph shows that the Tribunal accepted CXZ's concession with respect to his first wife. Otherwise, in the paragraph, the Tribunal did not make a conclusion that CXZ was violent towards his second wife, but rather accepted CXZ's evidence that the relationship involved violence. The passage does not demonstrate an engagement or overlap with the five allegations. There is no second and third step analysis per M v M, and CXZ No 1 does not reflect that the Tribunal undertook the correct test because, with respect to the allegations vis-à-vis the second wife, there is no discussion about whether the allegation is groundless or as to whether there is a lingering doubt. 2. The Children's Guardian accepted that "other passages" of the Tribunal's reasons for decision must result in a conclusion that, had the Tribunal conducted an analysis in accordance with M v M, it "might" have given little weight to each of the allegations. However, it was submitted that the following must be taken into account in that respect: 1. It should not be concluded or assumed that the Tribunal would have assigned little weight to these five allegations. That several other parts of the Children's Guardian's case were "given little weight" does not mean that the allegations would have been assigned the same weight. For one thing, some of the allegations, unlike others, were supported by sworn testimony, a matter that the Tribunal might have taken into account when weighing them. 2. Any assumed inevitability that these matters would have received little weight does not mean that they would have received no weight. By all indications, the Tribunal would have given the allegations some weight (perhaps only little, but some nonetheless). That is significant because the task of the Tribunal was to "count" the various matters and to make an evaluation of their accumulated weight when assessing the risk posed by CXZ. 3. Furthermore, and contrary to the correct approach, it was submitted the Tribunal proceeded one by one through the many allegations against CXZ and dismissed each one as being of "little" or "limited" (or similar) weight. It never, expressly or implicitly, considered the accumulated weight of all the matters put before it. 1. In that respect, the Children's Guardian referred to particular aspects of the reasons for decision of the Tribunal to illustrate that, whilst there was a particular weighing of each allegation (other than the allegations), the Tribunal's decision did "not speak in terms of what risk was indicated by all of these matters together". The illustrations were as follows (with references as to CXZ No 1): 1. to "give…little weight" – but also "[w]e have given some weight" – to CXZ's "lack of judgement" in a violent altercation outside a fast food restaurant (note that CXZ was acquitted of assault, on the ground of self-defence, but the Tribunal was satisfied of his lack of judgment) (CXZ No 1 at [31] and [150]); 2. to "give little weight" to several notifications to the Department of Family and Community Services ("FACS") (note that the Tribunal had good reason to give the notifications negligible weight) (CXZ No 1 at [56]-[57]); 3. to "give limited weight" to the contents of an affidavit sworn by the CXZ's sister in 2004, in which CXZ's sister expressed concerns about his children residing with him (CXZ No 1 at [71]); 4. to "give limited weight" to an affidavit in which a relative of CXZ' second wife described his "intimidatory behaviour" (CXZ No 1 at [78]); 5. to "give limited weight" to an incident in which CXZ had an altercation with his daughter and police were called (the Tribunal gave "some weight" to CXZ's evidence that "she started to strike him" and "he grabbed her wrists to stop her" and "he didn't push her down the stairs". The Tribunal also accepted that their "relationship had been at times acrimonious but [did] not accept that [CXZ] was violent towards his daughter" (CXZ No 1 at [75] and [81]); 6. to "give… little weight" to a FACS report that CXZ's "eldest son had contacted police as he was 'scared of his father…'" (note that when police attended, the son said that he did not have any fears) (CXZ No 1 at [82]); and 7. to "give little weight" to allegations of childhood sexual misconduct by CXZ towards his siblings (the assaults occurred but were discounted as the product of a disturbed childhood) (CXZ No 1 at [86]). 1. It was submitted the aforementioned errors deprived the Children's Guardian of a real opportunity of securing a different result in the proceedings. Ground 2 Inadequate Reasons 1. The Children's Guardian put the following short submissions as to inadequate reasons, as follows: 26. If the Tribunal did not err as alleged above then, in the alternative, the Guardian contends that the Tribunal failed to discharge the onus imposed upon it by subs. 62 (3) of the Civil and Administrative Tribunal Act to give reasons in accordance with that subsection. Therefore, the alternative ground of appeal is that '[t]he Tribunal erred at law by failing to give adequate reasons for its decision' in that failed in the six specific ways identified in the originating summons. 27. Subsection 62 (3) provides: A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 28. The six ways in which the Tribunal's reasons did not meet the requirements imposed by law have been expressed in the summons as follows: (a) [the Tribunal] failed to reveal whether or not it found the five allegations mentioned at paragraphs [49], [51], [53], [64] and [65] of its reasons for decision to be groundless; (b) if it found any of the said allegations to be groundless - it failed to give reasons for any such finding; (c) it failed to reveal whether or not it took account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the Child Protection (Working with Children) Act 2012; (d) if it did not take account of the said five allegations when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) - it failed to give reasons for not doing so; (e) it failed to reveal whether or not, when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2), it took account of the totality of the allegations against the defendant that it did not reject or find to be of no weight; and (f) if it did not take account of the said totality when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2) - it failed to give reasons for not doing so. It will be seen that these particulars reflect the argument already advanced in support of the principal ground of appeal. That argument is adopted with appropriate adaptations rather than being repeated in similar terms. In short, the Tribunal's reasons do not reveal what conclusions the Tribunal reached on issues that it was obliged to address, let alone why it reached any conclusions that it may have reached but not mentioned. The Contention 1. As earlier mentioned, by the contention, the defendant contended that the Tribunal should have admitted the 1995 and 2000 AVOs and two Family Court affidavits but only for the limited purpose that the allegations they contained had been made. 2. The Children's Guardian submitted that the contention should fail for the following reasons: 1. This issue was "not raised below". Therefore, the Tribunal cannot be said to have erred by not accepting the (unmade) contention that the evidence should have been received on a limited basis. 2. There is no reason why the Tribunal should have received the evidence on only a limited basis. Unlike Commission for Children and Young Persons v FZ [2011] NSWCA 111 ("FZ") and Children's Guardian v BRL [2016] NSWSC 1206 ("BRL"), this was not a case in which the 7 relevant witnesses were sought for cross-examination but not produced. There is no rule that the Tribunal should reject or discount the weight of the evidence of a witness who is not sought for cross-examination. Ordinarily, a failure to challenge or seek to challenge evidence may be taken as permitting the Tribunal to give the evidence more weight. Remedy 1. Finally, as to remedy, the Children's Guardian contended that the appeal should be allowed, the Tribunal's orders set aside and the matter remitted for determination by a Tribunal differently constituted: CLD v Children's Guardian [2017] NSWSC 936 at [20]. SUBMISSIONS OF CXZ Ground 1 Principles in M v M – Relevant Principles 1. CXZ offered a rejoinder to the contentions by the Children's Guardian that the principles in M v M were made applicable to review proceedings before the Tribunal in BKE and that, in the result, the appropriate approach, where the Children's Guardian relies on allegations of wrongdoing by the applicant, is for the Tribunal to first decide whether or not the allegation is true and, if not, that it has no hesitation in rejecting it as groundless on a number of bases. Further, CXZ challenged the notion of a three stage process being applicable in the present matter. In particular, as a broad proposition CXZ denied there was any requirement for the Tribunal to make a finding as to any allegation raised by the Children's Guardian that it was groundless. 2. This submission was advanced in two parts. 3. First, it was contended the circumstances under which BKE was decided differed from the present proceedings for two reasons: 1. As to the notion that BKE resulted in the importation of the principles in M v M, it is important to note, it was contended, that that case concerned an applicant who was under the presumption that he posed a risk to children (pursuant to s 28 of the Act). That presumption does not operate in the present matter. 2. In contrast to the present matter, in BKE there were allegations that the applicant sexually assaulted a child (at [29] and [30]). Most authorities relied upon by the Children's Guardian concerned allegations of the sexual assault of a child. There is nothing in BKE that demonstrated M v M is of general application. Both M v M and BKE resolved on their own factual circumstances. 1. Secondly, it was submitted that, whilst CXZ accepted that the Court in BKE considered that M v M gave "significant guidance" to the Tribunal in its fact finding and risk assessment function, there were differences (recognised in BKE) between family law and working with children jurisdictions. 2. There are differences between the family law and working with children jurisdictions in terms of the definition of "risk" such as the capacity in the family law jurisdiction for the consideration of mitigating measures to protect children in assessing risk in family matters. Further, the purposes of jurisdictions are different. Beech-Jones J in BKE posited, it was contended, the following approach to fact finding and risk assessment under the Act (at [33]): [33] … NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven. 1. The defendant contended that, in M v M, the Family Court did not make a positive or negative finding that the allegation of sexual abuse of a child occurred but found that, if there was an unacceptable risk that the child could be exposed to abuse, custody or access should be denied (referring to BKE at [32]). 2. CXZ submitted that M v M stands for two principles: 1. The determination of whether a person poses a risk to children should not be subservient to a determination of whether an allegation did or did not occur (at 76). The same principle is applicable under the Act. 2. In considering an allegation, a Court or Tribunal should not make a positive finding as to the allegation unless it is satisfied to the civil standard of proof discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334. 1. As to the particular aspects of the decision in M v M, CXZ contended: 1. The test considered by the High Court for family law proceedings – whether an order is in the interests of the welfare of the child (at 76) – is very similar to considerations arising under the Act. The "penultimate question is about… preventing risk to children and the welfare of children is the paramount consideration". 2. M v M is only authority for the way risk is assessed where there is an allegation of sexual assault (at 76). The approach adopted by the High Court in assessing risk is demonstrative of the serious consequences of sexual abuse for a child. Such an allegation, it was submitted, was of a different character (to other allegations of violence) because of its seriousness and that distinction explained why the particular approach in M v M was taken in such cases. An expansion of the principles in M v M beyond those narrow parameters would require particular explanation. BKE is merely an example of a sexual assault case. 3. The High Court in M v M emphasised that the focus must be on "the evidence" (at 77). 1. The Tribunal correctly did not refer to M v M or BKE, it was contended, because the matter did not involve an allegation of sexual assault against a child. 2. From that foundation, CXZ drew a distinction between what he contended the authorities in M v M and BKE stood for and what they did not. 3. It was submitted that the scope of M v M and BKE was as follows: 13. As such, M v M and BKE are authorities for the proposition that where there is an allegation of abuse against a child and the onus is on the applicant, NCAT has to attempt to determine whether the allegation is established or not established but if it cannot confidently make a finding it may still determine that the adult poses a risk to children by considering the surrounding circumstances of a particular incident or where there are numerous incidents, the course of conduct. 1. To the contrary, it was submitted that M v M and BKE were not authority for various propositions described as follows: 14. M v M and BKE are not authorities for the proposition that all allegations made by the Children's Guardian have to be tested to the standard set out above. In this matter, the Children's Guardian relied on allegations made in AVOs and statements by persons who were not required to attend the Tribunal to give evidence. The statements were made in circumstances of contested family proceedings. The allegations in the statements were never the subject of cross-examination. The Children's Guardian also relied on annonimous [sic] statements in the documents produced by Department of Community Services (DOCS), now Family and Community Services (FACS). 1. CXZ sought a finding that the decision in CFW was wrong and should not be followed insofar as it was found that the notion that a "lingering doubt or suspicion in the mind of the decision maker" can be the proper basis for a fact finding and risk assessment process under the Act. In support of that submission CXZ made two submissions as follows: 1. The decision in CFW, by focusing on surrounding circumstances and the conduct of the person, is contrary to the analysis by Beech-Jones J in BKE at [33]. The focus on the state of mind of the decision maker does not sit well with the admonitions in House v King (1936) 55 CLR 499; [1936] NSWSC 1406 and it lacks the forensic focus on analysis and evaluation. 2. A number of judges of this Court have not followed the notion of "lingering doubt" or "suspicion" as a proper basis for a fact finding and risk assessment process: CGB v Children's Guardian [2018] NSWSC 776 at [54] (per Harrison AsJ); CKF at [56] (per Davies J); CFJ at [66] (per Schmidt J). In Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; [1980] FCA 85 at [15], Deane J observed that where a Tribunal is not bound by the rules of evidence, the Tribunal's task in its fact finding functions is to act fairly, on the basis of relevant and probative evidence to seek "a comfortable level of satisfaction…commensurate with gravity of the charge". Assessment of Risk 1. The defendant contended that there was no obligation on the Tribunal to consider every single allegation made by the Children's Guardian and determine whether it was groundless or not. M v M was not authority for the proposition that there was a three step approach to assessing risk in proceedings under the Act. 2. It was contended that, consistently with BKE, s 30(1) obligated the Tribunal to consider the conduct of the person since the trigger charge occurred and to assess the likelihood of the repetition by the person of any of the conduct as part of its overall assessment of the risk he or she posed to children: BKE at [86] (per Beech-Jones J), and to "give weight" to each matter in s 30: BKE at [94] (per Beech-Jones J) in reliance on R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. In terms of the AVO relating to allegation 3, the AVO cannot attest to the truth of matters which it addresses. The Tribunal approached the question in that way: BVT v Office of Children's Guardian [2016] NSWSC 1169 at [58] (per Adamson J). 3. The defendant then made a submission as to the proper process for the Tribunal to make a finding as to the correct and preferable decision as follows: 31. In coming to its finding of the correct and preferable decision, NCAT is obligated to weigh evidence, demonstrating preference for some over the other by some indication why preference is given. This requires an articulation of the difference effects of the evidence concerned. NCAT's reasons must disclose this fact-finding process. 32. The civil standard of proof on the balance of probabilities applies to proceedings under Part 4 of the Act. The question for NCAT is to determine whether a person "poses a risk to the safety of children": S18(2) of the Act. The gravity of the matters alleged must be considered in the fact finding process. As Dixon J commented in Briginshaw at pg 362 and as also stated by four members of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd: 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… 33. The consequences flowing from particular findings in this jurisdiction are grave. They impact on a person's capacity to work and fully participate in their family, community and society. As Mason CJ, Brennan, Deane and Gaudron JJ said in Neat Holdings: this reflects "a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been found guilty of such conduct." 34. The standard of proof is not met if the circumstances appearing in the evidence do not give rise to a "reasonable and definite inference", but at most give rise to "conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture". 35. While NCAT is not bound by the technical rules of evidence and may receive relevant material in breach of the exclusionary rules of evidence, such as hearsay, there is significant authority for the proposition that while Tribunals are not bound by the rules of evidence, the freedom does not enable Tribunals to completely ignore the rules of evidence. As Evatt J observed "rules of evidence provide a tried and trusted method of fact-finding, calculated to prevent error and elicit truth. As such, the principles underlying a rule of evidence if not the strict rule itself, may offer guidance on how a tribunal should inform itself. [Footnotes omitted.] 1. As to these principles, and having regard to the evidence put before the Tribunal, the following submission was made: 15. The plaintiff's complaint is that the Tribunal did not accept certain allegations that the defendant was violent towards adults. The defendant was cross examined over two days in regard to the allegations made in the documentary hearsay evidence. In regard to some of the allegations, he agreed that they occurred as alleged and in regard to some allegations he denied that they occurred as alleged. 16. A critical question of law not raised below is whether the documentary hearsay evidence relied on by the plaintiff below and in this appeal was properly admitted to establish the truth of the assertions. It is not in dispute that the documentary hearsay evidence was properly admitted for the purpose of proving that there were allegations made against the defendant, the question is whether the documentary hearsay evidence should have been received as evidence of the truth of the assertions. 1. In BRL at [49], it was found that the Tribunal was correct to reject the admission of witness statements which formed part of a prosecution case for the purpose of proving the truth of the assertions. 2. The defendant also submitted that the decision in BRL follows the longstanding authority from the Court of Appeal's decision in FZ where the Court of Appeal found that a witness statement alleging sexual assault against the defendant was not admissible for the purpose of proving the truth of the assertions in circumstances where the person's evidence could not be tested by the Tribunal because the Children's Guardian did not ask the witness to attend the Tribunal for cross-examination. 3. As to particular answers to the Children's Guardian's submissions, CXZ commenced with making a broad submission in the following terms. 4. Before the Tribunal, CXZ made admissions that he was raised in a violent, neglectful and dysfunctional family which have had long term impacts on him including drug abuse and being violent towards other adults including his first and second wife. However, the undisputed evidence before the Tribunal was that CXZ was able to overcome these dysfunctions and form warm and loving relationships with his children: see CXZ No 1 at [73], [88], [97] and [119]. The independent expert Family Court reports, upon which the Tribunal relied, concluded that CXZ should be granted primary custody for his older children. For the last 15 years CXZ had primary custody of his older children and recently his youngest son: see CXZ No 1 at [139]. He has done so as a single parent. He had also been able to gain qualifications and build a career: see CXZ No 1 at [151]. 5. It was also submitted that the plaintiff's psychiatrist, Dr Allnutt, gave evidence at the Tribunal that CXZ posed a low risk to the safety of children: see CXZ No 1 at [100]. 6. As to the particular submissions advanced by the plaintiff with respect to ground 1, the trigger offence was related to the murder of an adult. It was submitted: There was no question about whether or not the defendant was involved. As the Children's Guardian submitted to the Tribunal below, her assertion was that "the circumstances of the homicide demonstrate that the applicant was susceptible to coercion from people he is fearful of and lacks resilience to defend his own convictions". As such, M&M and BKE are not relevant as to the trigger charge as the defendant admitted his physical involvement in the incident. [Original emphasis. Footnotes omitted.] The Allegations 1. As to the allegations, CXZ contended that the difficulty faced was that the broad allegations made by the Children's Guardian, namely, that CXZ was violent towards his first and second wife, were made in the following circumstances: 1. neither the first or second wife gave evidence; 2. neither the first or second wife was ever subject to cross-examination on any previous evidence given before a court or a tribunal; 3. third persons, such as experts and employees of FACS, had "on accession" made statements to the effect that the evidence of the first and second wife were unreliable (see see CXZ No 1 at [121]) or that they themselves were violent. Allegations 1 and 2 1. Turning to allegations 1 and 2, with respect to CXZ's relationship with his first wife, CXZ had admitted that sometime in the mid-1990s CXZ slapped his first wife across the face (see CXZ No 1 at [43], [49], [55], [76] and [147]). 2. Notwithstanding that admission, the Tribunal, it was submitted, could not make a positive finding that CXZ was violent towards his first wife as there was: 1. no evidence from the complainant; 2. no evidence of the details of surrounding circumstances of the making of an AVO; and 3. the AVO was made by consent and without admissions (see CXZ No 1 at [50]-[51]). 1. There was no adjudication upon the AVO. Allegation 3 1. As to allegation 3, namely, that CXZ was violent towards his second wife, CXZ admitted that there was violence between them but denied the specific allegations made by her in her witness statement, which was prepared for the purpose of Family Court proceedings. There was evidence those same persons did not receive the complaints. It was noted that at [55], the Tribunal recognised there was some violence in the second marriage. The Tribunal found that on the balance of probabilities it could not be satisfied that CXZ was violent towards his second wife, in the manner alleged, but found that the children did witness violence between the parents (see CXZ No 1 at [49], [74], [77], [95], [119] and [147]). 2. It was also submitted that, in determining whether CXZ posed a risk to children, whilst the Tribunal did not give any weight to the AVO made in 2000 (see CXZ No 1 at [116]), it did consider the statements from the 2002 and 2003 family law proceedings and the evidence given by CXZ. Allegations 4 and 5 1. As to allegations 4 and 5, CXZ submitted that it was surprising the Children's Guardian made submissions to the Tribunal that it should have relied on the witness statements made in 2004 and 2006 as to the truth of the assertions, as that was contrary to BRL. 2. The defendant also submitted the Tribunal was correct to not rely on the witness statements, referred to at [64] and [65] of CXZ No 1, to make positive findings against CXZ, in light of the fact that: 1. CXZ disputed the content of the witness statements; 2. the persons did not give evidence before the Tribunal; and 3. the evidence was not subject to cross-examination in the course of the acrimonious family court proceedings. It was submitted that the Tribunal properly considered the issues under s 30(1)(b) and concluded it did not accept that evidence. 1. It was submitted that allegation 5, as appeared at [65], concerned acrimonious family law proceedings, concerning the custody of children. The defendant submitted that in this particular case, in the absence of the witnesses being available for cross-examination on their respective accounts of the alleged events, the Tribunal did not make a finding that it was more probable than not that the alleged events did occur (see CXZ No 1 at [116]-[121]). However, as Fagan J explained in BRL at [24] and [29], such an outcome is the result of the Children's Guardian forensic decision making. 2. It may be noted that in reply to those submissions, the Children's Guardian contended: The ground of appeal does not attack the Tribunal for failing to make a finding, on the balance of probabilities, in favour of the Guardian. Rather, the plaintiff's contention is that after the Tribunal took that first step it still had further work but failed to do it. The circumstances of this case are in no way attributable to a forensic decision of the plaintiff. To the contrary, as is hinted at DS [16], there is no evidence that the defendant required the witnesses for cross-examination. That indicates, if anything, that a forensic decision was made on behalf of the defendant. It also distinguishes this case from FZ and BRL, both of which were cases in which the Guardian failed to produce witnesses who were sought for cross-examination (and failed to give any explanation for not doing so). To reject a party's evidence because the opposing party did not seek to cross-examine the relevant witness is unorthodox but is not the issue in this appeal. The issue is the failure of the Tribunal to proceed to the next steps in the required analysis. The Tribunal did not purport to refuse to take those steps because the witnesses had not been cross-examined (and would have erred if it did). It simply did not take the steps, and gave no reason. 1. CXZ contended that the correct course was to consider whether there was a course of conduct and an examination of the surrounding circumstances of the allegation per BKE. Ultimately, the Tribunal found CXZ was not violent towards the second wife. The allegation was so broad or vague, the Tribunal could not conclude there were specific acts of violence. 2. This case must be distinguished from CFW because, unlike that case (where the Tribunal left open the conclusions reached as to allegations made by the Children's Guardian), the Tribunal decided the allegations in favour of CXZ and did not accept the matters set out in the "AVO" and the "two affidavits". By making a "positive" finding, the Tribunal accepted the evidence of CXZ that he did not engage in the conduct in question (as described in paras [64] and [65]). 3. The Tribunal was entitled to give the AVO no weight (CXZ No 1 at [116]) as the contents of the AVO could not be elevated to a finding as to the truth of the fact asserted. Similarly, as to the family law proceedings (at [117]), the complainant was never produced for cross-examination and the evidence before the Family Court was never tested (there were a large number of affidavits from the family law proceedings placed before the Tribunal). This may be contrasted to the direct evidence given by CXZ. In the result, the Tribunal found that it did not accept the allegations. Further, it was not appropriate that the Tribunal go through a large number of affidavits to determine whether or not the allegations were groundless. 4. CXZ contended that the fourth and fifth allegations were "not proven" (this is what the Tribunal meant by finding that it could not make any positive findings about the alleged conduct contained in the documentation from the "2002 and 2003 Family Law proceedings"). 5. It was submitted that Tribunal's reasons at [119] and [143]-[148] of CXZ No 1, involve the Tribunal making findings after weighing the evidence. They come to the conclusion, it was contended, that the violence between adults is not relevant to their assessment of current risk to children and, further, "that risk is no longer ongoing because of the evidence that CXZ has had the children for a significant period of time without any issue" and is no longer in a relationship with his second wife. There is no evidence of violence in his further relationship. Expert opinion in the Family Court of Australia was that the applicant had a stronger attachment to his children than his former wife. There was no adverse indication in an employment context: CXZ No 1 at [151]. 6. The Tribunal correctly identified (at [152]) that the question they needed to resolve was whether CXZ posed a "current, a real and appreciable risk to children". It was submitted that the Tribunal summarised its assessment of the evidence at [153] and properly weighed that evidence. 7. The Tribunal provided a reasoned decision as to all mandatory requirements. 8. Finally, as to ground 1(a), CXZ contended that the ground did not raise a question of law, as M v M did not require the Tribunal to determine whether the allegations were groundless. 9. As to grounds 1(b) and (c), the Tribunal did take the allegations in CXZ No 1 [49], [51], [53], [64] and [65] into account in its fact finding and risk assessment process. Ground 2 1. As to ground 2 and the application of s 62(3) of the CAT Act, CXZ submitted that a failure to apply that section may be an error. However, on a proper reading of CXZ No 1, the Tribunal gave reasons. It addressed all relevant factors under s 30 of how CXZ did not pose a risk. 2. Further CXZ submitted: The Tribunal did not make findings on material questions of fact, referring to the evidence and other material that the defendant was violent towards his first and second wife. 1. The Tribunal also set out the reasoning process that led it to those conclusions and the evidence they relied on at [143]-[152]. 2. The Tribunal explained why it found that CXZ did not pose a real and appreciable risk to the safety of children: see CXZ No 1 at [153]. 3. In terms of the relevant principles in assessing whether there has been a failure to comply with the obligations set out in s 62(3), the appeal court "should not read the reasons of the decision maker with an eye finely tuned for error": McGinn v Ashfield Council [2012] NSWCA 238 at [17] (per McColl JA (Sackville AJA and Gzell J agreeing); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 ("Wu Shan Liang") (at 291). 4. When fairly analysed, it is clear that the Tribunal was fully aware of the context of the allegations and the objectives of the Act in reaching the conclusion at [153] of CXZ No 1 that CXZ does not at the correct time pose a real and appreciable risk to the safety of children. 5. Secondly, it is not necessary for the Tribunal to make findings with respect to each piece of evidence, matter or submission made by a party: Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [28]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]. The failure of the Tribunal to refer to each piece of evidence, does not, in and of itself, constitute a legal error. The Contention 1. CXZ accepted that the matters raised on the Contention were not raised below. However, it was submitted: 1. CXZ's solicitor acted pro bono. 2. The Children's Guardian is a model litigant and was represented by counsel. The Children's Guardian should not have made a submission that the material was relevant for all purposes. 3. A party cannot rely upon evidence for the purpose of proof unless the deponent is available for cross-examination, although it was conceded that CXZ did not seek any person be made available for cross-examination. 4. If the material is not rationally probative it should not be admitted: FZ at [63]. 5. In the light of CXZ's denials, contrary material, not supported by evidence, should have been given little weight (BRL at [31], [32] and [45]). 1. It was conceded that, if the Court found that the Tribunal had concluded the allegations were not groundless, the contention could not be pursued by CXZ. CONSIDERATION Ground 1 1. The Children's Guardian brings an appeal under cl 17(1)(a) of Sch 3 of the CAT Act. That provision provides for an appeal to this Court on a question of law from the decision of the Tribunal in which the Tribunal undertook an administrative review of a decision of the Children's Guardian, in CXZ No 1, refusing a working with children check clearance pursuant to s 63 of the ADR Act. The decision of the Children's Guardian was in determination of the application brought by CXZ under s 27(1) of the Act. Legal Principles Applicable to s 18(2) 1. It was common ground that, in determining the application by CXZ, the Tribunal was bound to apply to provisions of s 18(2) of the Act. Further, there was no dispute that the Tribunal posed for itself, in that respect, the correct question or test – whether the Tribunal may be satisfied that CXZ posed a risk to the safety of children, as the test was formulated in V. Thus, the Tribunal posed the question of whether there was a real and appreciable risk to the safety of children. 2. Rather, the Children's Guardian primary contention (by way of a refinement during submissions of ground 1) was that, with respect to the allegations, the Tribunal erred in law by failing to apply the provisions of s 18(2) in accordance with the law as stated in M v M and CFW. In particular, it was contended that the Tribunal failed, in reaching a state of satisfaction as to whether CXZ posed a risk to the safety of children, to assess whether the allegations were "groundless" or, if the Court should find the Tribunal had found the allegations were not groundless, whether it held lingering doubts or suspicions as to the allegations. In the latter case, it was contended that the Tribunal, by that omission, failed to take into account such a consideration when assessing whether there was a risk for the purpose of s 18(2) (including the particular and cumulative weight to be attached to such factors when assessing the question of risk). 3. Little was advanced in submissions as to whether the appeal, so stated, constituted an appeal on a question of law against a decision. CXZ stated in written submissions that ground 1(a) did not raise a question of law "as drafted as M v M did not require the Tribunal to determine whether the allegations… were groundless". As to grounds 1(b) and (c), it was submitted no question of law was raised as the grounds simply contended that the Tribunal failed to take into account the allegations in its fact finding and risk assessment process. 4. Those submissions by CXZ, however, were advanced prior to the abovementioned refinement to the submissions of the Children's Guardian as to the grounds of appeal or contentions in support of the same. In my view, as ultimately stated, ground 1 of the appeal constitutes an appeal on a question of law against the decision of the Tribunal, namely, whether the Tribunal misconstrued or misapplied s 18(2) of the Act and thereby failed to discharge its statutory functions in determining the application by CXZ for administrative review under s 27(1) of the Act. A further and related question was whether the Tribunal failed to conform with authority, namely, CFW. 5. Much attention was given by CXZ in that respect to distinguishing M v M and BKE from the present matter. 6. However, the Children's Guardian relied upon the judgment in CFW (and judgments of this Court following that judgment) to contend the relevant tests under s 18(2) were established by that authority and were binding upon the Tribunal. 7. It is appropriate to commence with that contention by Children's Guardian, as the authority in CFW, unlike M v M and BKE, concerned the same legislative provision applied by the Tribunal in the decision below, namely s 27 (I note that that provision and s 18(2) were materially the same in 2016, as the provision which was operative at the date the decision of the Tribunal in this matter. The earlier provision concerned the refusal of a working with children check clearance after a risk assessment by the Children's Guardian albeit, in CFW, one triggered by s 14 of the Act). 8. The ground of appeal Harrison J addressed in the often cited passages of his judgment in CFW (at [13]-[17]) concerned the resolution of a ground of appeal raising similar issues to the present matter, namely, whether the Tribunal had "misconstrued or misapplied s 18(2)" and "thereby failed to discharge the statutory functions and duties" reposing in the Tribunal to consider whether an application for "clearance" posed a risk to the safety of children (see CFW at [12]). 9. It would appear that CXZ sought to draw a distinction between the facts and circumstances of CFW and this matter, along similar lines to the distinction sought to be drawn between M v M and BKE and this matter, namely, that those cases (and CFW) only concerned cases involving allegations of sexual assault against a child and did not have general application. It may be noted that the risk assessment procedure under the Act in CFW was triggered as a result of the respondent having been charged with, but acquitted, of the offence of possess child pornography under s 578B of the Crimes Act 1900 (NSW). However, I will initially approach the contention by CXZ on the assumption that the child pornography charges raised issues of a similar kind as the charges of sexual assault of a child considered in M v M and BKE. 10. The often cited passage of Harrison J's judgment to which I have referred (CFW at [13]-[17]) is extracted below: [13] The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. [14] The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. [15] The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare." [16] Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. [17] A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute. 1. His Honour did not refer to the "three stage process" - a concept or notion which occupied a significant proportion of the submissions of the parties. What is clear, in my view, is that his Honour was concerned to distill, having regard to his acceptance, in reliance on BKE, that M v M applied to the acceptance of risk under s 18(2) of the Act (at [13]), the considerations which thereby bore upon the making of findings of a risk by the Court or the Tribunal when acts of allegations of wrongdoing were relied upon by the Children's Guardian. 2. The stages of analysis undertaken by his Honour, whether two or three in number, represented a logical sequence of reasoning with respect to a given set of allegations and are designed to plumb the full range of considerations relevant to the assessment of risk of safety to children for the purposes of s 18(2) of the Act and having regard to the object of the Act being to "protect children". It may be observed that the High Court in M v M emphasized, albeit in a different statutory context (ss 60D and 64 of the Family Court Act 1975 (Cth)), that the flaw in the applicant's argument in that matter was to identify the allegation of sexual abuse as the paramount issue as opposed to the welfare of the child. 3. It follows that, on this approach, the Tribunal was required to assess all allegations raised by the Children's Guardian although the Tribunal may have disaggregated its consideration of the respective allegations and legitimately undertake a staged consideration in its judgment as it considered fit (as it did in the decision below), provided there was overall compliance with the requisite statutory requirement. 4. CFW was followed and applied in CFJ at [70] (corresponding to [14] and [15] of CFW – Schmidt J also referred to the resolution of whether the Tribunal had no hesitation in rejecting the allegation as groundless) and [72] (as to [16] of CFW) and CMD v NSW Office of Children's Guardian [2018] NSWSC 1348 ("CMD") at [49] (in which McCallum J expressly referred to a "three-stage analysis"). 5. It is apparent from [45]-[56] of CKF that Davies J accepted the first two "propositions" set out by Harrison J in CFW. There is no demur from those propositions by his Honour, notwithstanding a substantial discussion of the relevant passages of CFW and some express reference to the test without disagreement (see, for example, [45] in CKF). 6. Further, I agree with the Children's Guardian, that Davies J did not reject that it was relevant to consider, if the Tribunal was not positively satisfied that an act alleged had occurred in assessing risk, whether or not a lingering doubt or suspicion remained. That was a matter to be considered "when all of the evidence is weighed up in assessing whether the defendant [posed] a risk to the safety of children". His Honour rejected the notion that "an open finding" or a remaining lingering doubt or suspicion counted against the applicant for a working with children check clearance (see CKF at [55]). 7. CXZ invited a finding that, in the disputed area between the judgments in CFW and CKF, CKF was correct. 8. Three observations may be made about that submission: 1. The issue arising in the final stage of Harrison J's test as to risk only emerged, in the case of an allegation of wrongdoing, if the allegation is found not to be proven and could not be dismissed as groundless: DAR v Children's Guardian [2018] NSWSC 942 ("DAR") at [51] (per Adamson J). 2. The apparent inconsistency between trial judges can only properly be resolved by a higher court. Further, I do not accept the submission of CXZ that the judgment of Schmidt J in CFJ expresses a contrary opinion to that of Harrison J in CFW as to the tests under s 18(2) and, in particular, as to his Honour's view (in CFW) at [16]. 3. The difference between the judgments is relatively fine, particularly as both judgments accept that the consideration of any "lingering doubt or suspicion" must be assessed in terms of risk and that, such a doubt may, subject to the degree of significance or gravity attached to it by the Tribunal, count against an applicant challenging a refusal to grant a working with children check clearance. The issue in this case is whether the Tribunal made any assessment of that kind and thereby properly evaluated the weight to attach to the allegations, assuming the Tribunal had reached a finding of the kind described in (1) above. The contention was that the Tribunal had not made the assessment at all, let alone whether it would count against CXZ. 1. It follows that the judgment in CKF established no proper basis for the Tribunal not to apply the principles stated in CFW in the instant case. 2. Given a ground of appeal was that the Tribunal failed to articulate whether it held such a doubt (and evaluate the weight to be attached to that consideration), and both CFW and CKF establish that is a relevant consideration, it follows that a failure to take into account that assessment would constitute an error of law. It further follows that CXZ's challenge to CFW, even if correct, could not constitute a basis for not following CFW in this case. 3. Nor is there any basis to distinguish the present matter as CXZ sought to do in contending that BKE, which imported M v M into the consideration of risk under the Act, concerned a decision made under s 28 of the Act. Each of the decisions in CFW, CFJ, CKF, DAR and CMD concerned appeals from a review conducted by the Tribunal under s 27 of the Act. 4. What remains is to consider the distinction sought to be drawn by CXZ between this matter and CFW based upon the absence of allegations in this case of sexual assault of a child. As earlier mentioned, I will assume for that purpose that the factual circumstances addressed in CFW fell within that class. 5. In my view, the distinction sought to be drawn by CXZ is, when M v M and BKE are properly considered unavailable. 6. There are two passages from the judgment in BKE which attracted particular attention. The first was [30] which was as follows: [30] Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69 ("M v M"). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found "that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access" (M v M at p 70). (The second is [33] which is discussed at [184] below) 1. The passage from M v M to which his Honour alluded concerned the High Court's consideration of Gun J's judgment in the Family Court of Australia which was under appeal in the Full Family Court. Gun J made an order discharging an order for custody by a husband in favour of a wife in order to eliminate the risk that a child might be sexually abused (see M v M at 70, 71 and 75). 2. The Full Family Court dismissed an appeal from that decision. The dissenting judgment had emphasised Gun J's reliance upon "lingering doubts" that he had that the husband had sexually abused the child. The High Court accepted the majority in the Family Court had correctly identified the trial judge's reasons as representing a "doubt that he had about the possibility that sexual abuse had taken place and might take place if the father were to have access…" (M v M at 75). 3. In BKE, Beech-Jones J considered a matter where the Tribunal had made a finding that the plaintiff was guilty of a charge (of indecent assault against a grandson), notwithstanding the dismissal of the charge in criminal proceedings and the absence of notice that a finding to that effect may be made. Thus, in the immediately preceding paragraph of BKE (to that extracted above) his Honour observed that, notwithstanding the Tribunal was not bound by the rules of evidence, it would do well to have had regard to the principles in Briginshaw if it considered making a positive finding that an "applicant sexually abused a child in circumstances where they were not convicted of doing so". 4. Whilst his Honour was concerned there were allegations of "sexual abuse of child", the guidance to which his Honour referred was primarily directed to circumstances where a Tribunal could not make "a positive finding" but, nonetheless, considered there was a remainder of risk to the safety of children under the Act. 5. Hence, after referring to a distinction under the family law jurisdiction as to the assessment of risk (vis-à-vis mitigating measures) and the onus falling upon the plaintiff (under s 28 of the Act), his Honour stated at [33]: [33] … However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven. 1. In my view, and with respect, that passage of his Honour's judgment, which is a derivative of the judgment of the High Court in M v M at 77, was concerned to state the applicability of M v M, as a matter of principle, to all cases where the Tribunal was required to undertake fact finding and assess risk. The guidance afforded was to circumstances where an allegation had not been made out but the paramountcy of the welfare of the child required a broader consideration of risk having regard to the circumstances surrounding a particular incident or a course of conduct by an applicant. The reference to allegations of sexual abuse is merely a reflection of the particular subject matter then before the Court. 2. Recourse to M v M is productive of the same conclusion. 3. CXZ was correct to submit that the High Court found that the determination as to whether a person has engaged in the alleged conduct (in M v M, sexual abuse) was subservient to and ancillary to the determination of what is in the best interest of the child (M v M at 76). The High Court in M v M was considering the matter in the context of then s 60D of the Family Law Act 1975 which then provided that the Family Court "shall regard the welfare of the child as the paramount consideration". 4. That brought the High Court to consider risk in a context where the Court could neither "come to a positive finding that an allegation was well founded" nor that the Court could have no hesitation "in rejecting the allegation as groundless". The High Court found: 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. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. [Emphasis added.] 1. The "wider issue" referred to by the Court was, in my view, a reference to the determination of the interests of the child by reference to risk, in the light of strong practical reasons why the Court might refrain from making a finding that a sexual assault had actually taken place unless the Court was compelled to do so (see M v M at 77). 2. Whilst the issue before the High Court in M v M concerned sexual abuse, the High Court's observations as to the assessment of risk were not confined to that subject matter. Thus, the High Court stated, in the immediately preceding extract from M v M extracted in this judgment, that the Family Court often assessed the "likelihood or probability of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare". 3. Further, in that same extract from the judgment in M v M above, the High Court's statement of the fundamental matter to be taken into account in deciding issues of custody and access was not confined to an assessment of the existence and magnitude of risk "of sexual abuse" but extended to "other risks of harm to the welfare of a child". 4. In my view, the principles imported from M v M by BKE concerned broadly the manner by which an assessment should be made as to the risk to the safety of children and, in particular, the approach to such a question where an allegation was not proven but, equally so, was not groundless. 5. Whilst the existence and magnitude of the risk may vary depending upon the nature and scope of the alleged conduct or likelihood of conduct, there is no proper basis for confining the operation of those principles to sexual assault or abuse cases based upon M v M, BKE or the authority of this Court which came after BKE. No such limitation is to be found on the face of s 18(2) and no implication of that kind ought to be drawn having regard to the objects and purpose of the Act to protect children. 6. There is a variety of conduct which may pose a risk to the safety of children or the likelihood of the same outside of sexual assault or abuse. Access to the child pornography (which was considered in CFW) may be said to be consistent with a finding that there may be a likelihood of sexual abuse. No reason was proffered by CXZ as to why exposure to violence between parents or by a parent to his/her partner may not pose a risk to the safety of a child, harm occasioned by those experiences or that the potential for such violent conduct might not ultimately involve the risk of exposure of the children themselves to such violence. 7. In my view, the Tribunal was required to apply the principles in CFW (and M v M and BKE) in the determination of the application before it under s 27 of the Act. Those principles should be applied in the determination of ground 1 of the appeal. The Allegations 1. The Court does not have the evidence that was before the Tribunal and, therefore, does not have the material referred to in the allegations as described by the Tribunal. Nor does the Court have the precise formulation of the allegations as may have been stipulated to the Tribunal by the Children's Guardian. The Court is left to infer what the particular allegation was from the description given to it by the Tribunal in the course of its reasoning. That task is made difficult by a number of factors. 2. First, the Tribunal approached the allegations through the portal of the source of the allegation, such as an AVO without setting out the terms of that document and the specific allegation said to arise from it. 3. Secondly, the paragraphs of the Tribunal's decision said by CXZ to constitute the allegations do not in all cases align with an allegation. Specifically, allegations 1 and 2 are said to appear at [51] and [53] of the Tribunal decision, respectively, in fact appear at [50] and [52] of the Tribunal decision (although the Tribunal's findings as to the allegations are found in the paragraphs nominated by the Children's Guardian). 4. Thirdly, the nature and context of the allegations, as described by the Tribunal, is sometimes ambiguous and expressed in very general terms. 5. Fourthly, CXZ referred to various passages of the Tribunal, other than those nominated by the Children's Guardian as constituting the Tribunal's full examination of the allegations, to demonstrate that the Tribunal undertook the requisite assessment without strictly correlating those later passages to a particular allegation (it was not suggested by the Children's Guardian the Tribunal was required to do so). 6. Bearing in mind those factors, I shall proceed to deal with the contentions advanced by the Children's Guardian, noting that it was ultimately argued by the Children's Guardian that the Tribunal needed to consider the allegations cumulatively in order to assess risk. Allegation 1 1. The first allegation appears to be that the applicant had made threats against his first wife and her then partner (see CXZ No 1 at [50]). 2. The Tribunal specifically discusses allegation 1 within the four walls of paragraphs [50] and [51] of the Tribunal's decision. 3. At other points in its decision, the Tribunal broadly traverses the applicant's relationship with his first wife. However, it would not appear that, even on a broad reading of the Tribunal's decision, when read as a whole, the Tribunal addressed the allegation outside of the decision in para [50] and [51]. There is no doubt the Tribunal considered violence towards the applicant's first wife elsewhere in its decision, but not the specific matters raised in allegation 1. 4. For example, in [147], the Tribunal accepted "that the applicant was violent towards his first wife" and that "the applicant's children witnessed violence between their parents", but this does not traverse the issue in allegation 1 which concerned threats made by the applicant against his first wife and her then partner. 5. A further illustration is that the Tribunal's concluding remarks noted that it had given particular weight to the findings of Drs Jones and Allnutt, including the following findings: 1. Dr Jones reiterated his view that, despite the additional information provided to him and in the absence of any further witness testimony in relation to allegations made against the applicant, his initial opinion, expressed in his report, remained unchanged (CXZ No 1 at [99]). 2. Dr Allnutt noted the applicant's history of allegations for violent behaviour did not change the opinion set out in his earlier report, noting that the case was one relying on the factual findings of the Tribunal itself (CXZ No 1 at [104]). 3. Dr Allnutt also noted in relation to the allegations of domestic violence against the applicant, that there had been no complaints for the past nine years and that his risk decreased with age (CXZ No 1 at [106]). 1. No part of the Tribunal's discussion of those reports recognises that the psychiatrists deal with allegation 1 as I have described it. 2. Thus, even on a generous view of the Tribunal's decision, those passages of CXZ No 1 (sitting outside the passages dealing with the allegation per se), do not address the allegation. 3. It follows that in order to test whether the Tribunal discharged its statutory obligations, as discussed in the legal principles above, it is necessary to consider its judgment within the confines of [50] and [51] of its reasons for decision. 4. The Tribunal found at [51] that "we cannot make any positive finding about the alleged conduct". Having regard to the aforementioned discussion of authority, I consider that, properly construed, that finding by the Tribunal was that, on the balance of probabilities and to the requisite standard, the Children's Guardian had not established, in the proceedings before it, the allegation to be made out, or, to use the language employed by the High Court in M v M, the Tribunal did not make a positive finding the allegation was well founded on the evidence (or that it could confidently make a finding that the alleged conduct had occurred). 5. As to the question of whether the Tribunal made a finding as to whether the allegation was groundless, my primary conclusion is that the concession by the Children's Guardian (albeit in the alternative) should be accepted, namely, the Tribunal made no definitive finding as to that matter, in a similar manner to its deliberation regarding the first step (as to whether the allegation was made out). In short, the Tribunal's finding that no positive finding could be made encompassed both the first and second steps required in the assessment of risk. 6. 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. 7. 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. 8. 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. 9. Secondly, as 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. 10. 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." 1. 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.] 1. As mentioned, in the present case the complainant was not sought for cross-examination. 2. In both of the circumstances described above, the Tribunal made no definitive finding the allegations were groundless (or made out) and, alternatively, by implication, the Tribunal may be taken as finding (by implication) "without hesitation" the allegation was not groundless, the Tribunal was obliged (in accordance with the aforementioned discussion of principles) to decide whether, on the evidence as to the allegation, CXZ nonetheless posed a risk to the safety of children. That step (sometimes described, as earlier discussed, as the third step in the requisite inquiry under the Act) required an evaluation of whether the evidence was demonstrative of a risk, and, if so, its likelihood (including a consideration of the date of the alleged conduct and as such, whether the risk was "current"). 3. In evaluating whether the Tribunal undertook that task I have had regard to the paragraphs of the judgment relied upon by the Children's Guardian and any other passages of the Tribunal's judgment which potentially related to or concerned that issue as set out above. 4. On the basis of the foregoing analysis, I am of the view that the Tribunal made no such assessment. 5. At no point in the paragraphs nominated by the Children's Guardian (namely, CXZ No 1 at [50]-[51]) did the Tribunal discuss the risk that the applicant posed to children in the light of the evidence as to allegation 1. The Tribunal (at [50]) referred to the explanation given by CXZ for the issuance of the 1995 AVO. CXZ stated "the 1995 AVO arose in circumstances where I was trying to protect my children from harm". The Tribunal also referred to CXZ's concern that the partner of his first wife "had been sexually assaulting his daughters". It was implicit in this evidence that CXZ did engage in some conduct relating to the allegation, although the particular conduct engaged in is not well defined. However, within these paragraphs, the Tribunal did not assess what implications these issues had for the risk posed to children. 6. Additionally, as mentioned above, the Tribunal did not address in its decision the allegation outside of the nominated paragraphs. The same can be said of the Tribunal's assessment of the risks which might be found to exist in the light of the evidence as to allegation 1. 7. Overall, to use the categorisation adopted by the Children's Guardian (as referred to in some of the authorities discussed above), the Tribunal did not undertake the third step of the inquiry, either in the nominated paragraphs by the Children's Guardian or when the judgment was considered as a whole with respect to allegation 1. Allegation 2 1. Allegation 2 was stated as follows: [52] In 2000, an interim apprehended violence order was issued against the applicant for the protection of the applicant's second wife but, according to the applicant's statement, did not proceed to a full order. According to court papers before the Tribunal, however, an AVO was issued against the applicant on 22 June 2000 for a period of twelve months. 1. The Tribunal's finding in relation to allegation 2 was as follows (at [53]): [53] Given the lack of evidence from the complainant and the lack of details as to the circumstances of the AVO being granted, we cannot make any positive findings about the alleged conduct of the applicant 1. There is no relevant difference in the language used by the Tribunal in respect of allegation 2 and allegation 1, namely, the Tribunal "cannot make any positive finding about the alleged conduct". It follows that the same conclusion should be reached as allegation 1. Further, as with allegation 1, if a contrary finding should be available, there are components of the judgment discussed below which indicate that the Tribunal (by implication) would not without hesitation, have dismissed the allegation as groundless. 2. The Tribunal attached particular weight to the report of Dr Jones. The Tribunal seemed to accept the finding of Dr Jones (CXZ No 1 at [95]) that "the applicant conceded a history of domestic violence with his second wife and that there was 'bilateral physicality' but that he had never been charged with any violent offences related to domestic violence despite there having being a number of apprehended violence orders in place over the course of the relationship". The conclusion seems to accept there was some violent conduct between CXZ and his second wife as well as the issuance of AVOs (which appeared to be linked to that conduct). 3. As with allegation 1, here the question nonetheless arises as to whether, on the evidence as to allegation 2, the Tribunal evaluated whether CXZ, in those circumstances, nonetheless posed a risk to the safety of children. 4. In evaluating whether the Tribunal undertook that task I have once again had regard to the paragraphs of the judgment relied upon by the Children's Guardian and other passages of the Tribunal's judgment which related to or concerned that issue. 5. I accept that, in the paragraphs referred to by the Children's Guardian as setting out allegation 2, the Tribunal did not do so. The Tribunal (at [52]) accepted that, according to court papers before it, "an AVO was issued against the applicant on 22 June 2000 for a period of twelve months". However, when considering the significance of the AVO, the Tribunal merely concluded (at [53]) that it could not make any positive findings about "the alleged conduct of the applicant", without proceeding to discuss the risk to children that CXZ posed based on the evidence as to the allegation. 6. Nevertheless, it is clear that elsewhere in its decision, the Tribunal assessed the weight that it would place on the evidence as to the issuance and substance of the AVO in relation to CXZ's risk to children. That much is clear from the Tribunal's statement at [116]: [116] In 2000, an AVO was made against him. In the absence both of details of the granting of the AVO and any evidence from the complainant, we do not give it any weight in determining whether the applicant currently poses a risk to children. 1. In this passage, the Tribunal once again accepted that the 2000 AVO had been issued. The Tribunal then referred to some of the evidence relevant to its determination of the risk that CXZ posed to children, including details as to the granting of the AVO and evidence from the complainant, and noted the weakness of that evidence. However, unlike in the passages referred to by the Children's Guardian, the Tribunal then expressly discussed the "weight" that it would attribute to the AVO, in light of the evidence before it, "in determining whether the applicant currently poses a risk to children". In this way, the Tribunal clearly engaged in the third stage of the inquiry. 2. Further, as earlier mentioned, the Tribunal gave "particular weight" to the report of Dr Jones. That report found that CXZ posed a low risk to the safety of children in spite of the CXZ's conceded history of domestic violence with his second wife and the AVOs in place over the course of their relationship. The weighing exercise undertaken by the Tribunal in respect of the report of Dr Jones once again demonstrates that the Tribunal had engaged in the third stage of the inquiry. 3. Thus, in my view, despite the Tribunal not addressing the third stage of the requisite inquiry in the passages referred to by the Children's Guardian, the Tribunal has done so when the Tribunal's decision is viewed as a whole. Allegation 3 1. Allegation 3, as framed in [49], was that "the applicant was physically violent towards his second wife". While the allegation is thus expressed broadly, the Tribunal seems to provide more detail in [55], where it states: [55] … Later in this decision, we give consideration to allegations of violence within the applicant's second marriage in the context of a case summary report prepared by the Independent Children's Lawyer appointed by the Family Court during custody proceedings for the applicant and his second wife. 1. As mentioned, the Tribunal, in its reasons for decision, did not extract much of the primary documentation it relied upon, including the "case summary report" referred to in the above quote. It is, therefore, unclear, for example, if allegation 3 encompasses aspects of allegations 2 and 4. For present purposes I will treat the allegations as distinct. Later in the judgment, I will consider whether the Tribunal correctly approached the cumulative weight of the allegations. 2. The Tribunal's finding, with respect to allegation 3, was as follows (at [49]): [49] … In light of the applicant's evidence denying the allegations and the absence of evidence from the applicant's second wife, we cannot be satisfied on the balance of probabilities that the applicant was physically violent towards her. 1. The language employed by the Tribunal was notably different to that expressed in relation to grounds 1 and 2. In addressing allegation 3, the Tribunal stated that it could not be satisfied "on the balance of probabilities" as to the allegations (as mentioned, the Tribunal used the language "cannot make any positive finding" in dealing with allegations 1 and 2). I consider that the language used in relation to allegation 3 was even more strongly indicative (than in allegations 1 and 2) that the Tribunal did not make a definitive finding that the Children's Guardian had established the allegation as made out, or that the allegation was groundless. 2. As in the case of allegations 1 and 2, if it was found, contrary to the above conclusion, that the Tribunal had made a definitive finding, there are elements of the decision of the Tribunal which indicate that the Tribunal would not without hesitation, dismiss the allegation as groundless. 3. This discussion should commence with the Tribunal's general finding that CXZ was a witness of truth. The Tribunal stated (at [108]): [108] The Act imposes a duty on the applicant to disclose all relevant matters: s 27(4) of the Act. The applicant gave oral evidence to the Tribunal about which he was cross-examined at some length. In considering the totality of his evidence, we found the applicant to be a truthful and reliable witness. 1. Whilst this finding was expressed in broad terms, it is reasonably clear that the finding extended to the entirety of CXZ's evidence, including the evidence given in relation to the allegations. On one view, that conclusion applied, without more, to allegations 3, 4 and 5. It may be thought in that sense that the Tribunal had found those allegations to be groundless because CXZ apparently denied those allegations in his evidence before the Tribunal. 2. However, as will be discussed below, the broader consideration of the Tribunal's approach to those allegations (at several stages of its decision) significantly mitigates that assessment because the Tribunal alluded to concessions made by CXZ as to his conduct with respect to allegation 3, which, by virtue of the Tribunal's acceptance of CXZ as a witness of truth, the Tribunal should be taken to have been accepted as true. 3. On balance, I do not consider the Tribunal's acceptance of CXZ's evidence sustains a conclusion that the Tribunal found allegation 3 to be groundless. The same can be said of allegations 4 and 5. I shall elaborate. 4. In the case of allegation 3, the Tribunal (at [74] and [119]) accepted the evidence contained within the case summary of the Independent Children's Lawyer filed 2 November 2006. That case summary referred to admissions made by CXZ and his second wife, namely, that they were violent towards each other and that the children were exposed to the violence. The passage of the case summary was extracted by the Tribunal as follows (at [73]): [73] … This is a major issue in the proceedings. All children demonstrate behaviour consistent with being exposed to family violence, both between the parties and in the parents' household. Both parties admit to violence towards the other, in their lives together, to which the children were exposed. 1. The Tribunal appears to have accepted an admission of a mutuality of violence of which CXZ was a participant, thereby involving violence by CXZ towards his second wife. This did not necessarily involve an acceptance that CXZ was "physically violent" towards her, as the word "violence" in the context of the case summary of the Independent Children's Lawyer is ambiguous and would seem to extend to non-physical acts, such as the threat of violence. Nevertheless, the concession of violence, by its nature, demonstrated that, even if CXZ's conduct was not precisely as alleged, the Tribunal had evidence before it, which it relied upon, to the effect that CXZ did engage in such conduct. 2. This approach is also informed by other findings of the Tribunal's decision which traversed the CXZ's relationship with his second wife. A few examples are as follows: 1. At [77], the Tribunal found: [77] … On the evidence before it, the Tribunal accepts that the relationship between the applicant and his second wife was marked by some physical violence. 1. At [119], the Tribunal accepted that the CXZ's sons witnessed violence between their parents. 2. In its concluding remarks, the Tribunal stated (at [147]-[148]): [147] … We accept that the relationship with his second wife was one that involved violence. We accept that it is likely that the applicant's children witnessed violence between their parents and accept this this would have been detrimental to them. [148] On the evidence before us, we are satisfied, however, that the domestic violence between the applicant and his second wife is no longer ongoing. 1. Those passages, when read in conjunction with the Tribunal's finding at [49], may also indicate that the Tribunal considered that the evidence of violence in the relationship was not so insufficient as to make the allegation groundless, but that the evidence was not sufficient to make a positive finding of wrongdoing. 2. What remains is an assessment as to whether the Tribunal correctly undertook the exercise of weighing the evidence before the Tribunal in relation to allegation 3 when assessing the risk that CXZ posed to the safety of children. 3. As in my consideration of the previous allegations, in evaluating whether the Tribunal undertook that task, I have had regard to the paragraphs of the judgment relied upon by the Children's Guardian and other passages of the Tribunal's judgment which related to or concerned that issue. 4. I am of the view that the Tribunal clearly made such an assessment. 5. It may be accepted, as submitted by the Children's Guardian, that the Tribunal did not address the issue in the paragraphs nominated by the Children's Guardian as constituting the allegation. Similarly to allegation 2, the Tribunal merely sets out the allegation and makes a finding as to the CXZ's conduct. The Tribunal does note (at [49]), however, that "the allegations that the applicant was physically violent towards his second wife are serious ones". Taken at its highest, the word "serious" may have been used by the Tribunal to suggest that any evidence relevant to allegation 3 would have serious implications on the Tribunal's assessment of the risk that CXZ posed to children. However, even if this were the case, having considered the evidence as to the allegation in the subject paragraph, the Tribunal goes no further in dealing expressly with the risk CXZ posed. 6. Nevertheless, the Tribunal did undertake the weighing process mandated by the third stage of the inquiry in other parts of its decision. First, the Tribunal emphasised, and thus gave weight to, the fact that the evidence pertaining to allegation 3 was not indicative of the risk that CXZ "currently" posed. As mentioned above, the Tribunal was satisfied "that the domestic violence between the applicant and his second wife is no longer ongoing". This was reiterated at [119] where the Tribunal stated: [119] … On the evidence before us, we accept that have been no further allegations of violence between the applicant and his second wife and that the applicant is seen to be a loving and caring father. 1. The Tribunal also extracted part of Dr Allnutt's report at [103], which included the following finding by Dr Allnutt; [103] … If it is determined that has previously engaged in domestic violence behaviour with prior partners, then there is concern about a child's exposure to domestic violence (as a witness), if he became involved with a woman who has children under 18, and if domestic violence emerged. There is no evidence of the domestic violence in his last relationship and the last recorded episode was about 9 years ago. There are many ambiguities regarding the evidence – at this stage I would regard his current risk profile as pertains to children as being in the low range. 1. The Tribunal further summarised Dr Allnutt's report at [106], as follows: [106] In relation to the allegations of domestic violence against the applicant, Dr Allnutt noted that there have been no complaints for the past nine years and that his risk decreases as he ages. He expressed the view that the applicant's experience of raising his younger children as a single factor would work in his favour. This is because raising children alone places stress on a parent and requires the potential for restraint. An absence of complaints in these circumstances would suggest conformity. He noted that the longer people go without incident, the lower their risk becomes. 1. At [153], the Tribunal stated that it had given "particular weight" to the findings of Dr Allnutt (and Dr Jones). In doing so, in my view, the Tribunal thus endorsed Dr Allnutt's report, which, as clear from above, specifically addressed the question of current risk in the light of allegation 3, finding that the CXZ was in the low range of risk. 2. For these reasons, I conclude that the Tribunal did undertake the third step as categorised by the Children's Guardian and discussed in some authorities. Allegation 4 1. Allegation 4 was expressed as follows (at [64]): [64] An affidavit by the applicant's sister-in-law sworn in 2006 is before us. In it, she describes the applicant as overbearing, manipulative and argumentative and states that the applicant's second wife told her that the applicant had been hitting her… 1. That allegation was comprised of two elements. The first element was "that the applicant was overbearing, manipulative and argumentative" (it appears that those words were intended to describe CXZ's general disposition, rather than his behaviour in relation to a specific incident). The second element of the allegation was "that the applicant had been hitting his second wife". 2. The Tribunal's finding in relation to allegation 4, which encompassed both elements of the allegation, was as follows (at [64]): [64] … It is not disputed that the affidavit was prepared as part of acrimonious family law proceedings between the applicant and his second wife. The applicant contested the truth of allegations and applicant's sister-in-law was not cross-examined on the affidavit at the time of the family law proceedings, nor did she give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant of the basis of the material contained in it. 1. For the same reasons as in allegations 1 and 2, the Tribunal's expression "we make no positive findings" should be construed as the Tribunal making no definitive finding that the allegation was well founded or groundless. As was the case in relation to allegations 1, 2 and 3, there are components of the Tribunal's decision which suggest that, if, contrary to that conclusion, the Tribunal was taken to have made a finding (by implication, as no express finding was made) as to whether the allegation was groundless, on balance, the Tribunal's decision would suggest that the Tribunal would not, without hesitation, find the allegation to be groundless. 2. As mentioned above, the Tribunal made a finding, which extended to its consideration of allegation 4, that CXZ was a witness of truth. The concessions made by CXZ, as discussed below, in relation to allegation 4, which were accepted by the Tribunal, clearly indicate that the Tribunal had not found allegation 4 to be groundless. 3. First, the Tribunal (at [46]) referred to CXZ's evidence in which he conceded that his conduct towards his second wife involved "actions" which "were always done in self-defence". That passage is now extracted: [46] … I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional. However, [she] was always the aggressor. Throughout our relationship [she] was violent, controlling, aggressive and erratic…I have never punched her as she has claimed. My actions were always done in self-defence in response to [her] violence with the least amount of physical force possible… 1. Secondly, the Tribunal summarised (at [47]) CXZ's oral evidence in this respect, which disclosed a similar concession: [47] In oral evidence before the Tribunal the applicant reiterated his statement that he had not hit his second wife but would simply defend himself when getting hit. No material was provided to dispute the applicant's evidence in this regard. 1. Thirdly, the Tribunal referred to CXZ's first affidavit which disclosed an admission made by CXZ to his brother, which the Tribunal described as follows (at [69]): [69] In the first affidavit, he recounts the conversation he had with his brother who asked him whether he had hit his second wife. In reply, the applicant had said 'Yes… when she hits or spits on me I slap her, would it be any different if [your wife] hit you or spat in your face, what would you do, would you hit her?' 1. Fourthly, as mentioned in relation to allegation 3, the Tribunal (at [74] and [119]) accepted the evidence contained within the case summary of the Independent Children's Lawyer filed 2 November 2006. That case summary referred to admissions made by CXZ and his second wife that they were violent towards each other (at [73]). 2. As mentioned, due to the Tribunal's aforementioned finding as to CXZ's credit, such concessions and admissions were accepted as statements of truth by the Tribunal. The statements, by their nature, were probative of the fact that, even if CXZ's conduct was not precisely as alleged, he did engage in some conduct that indicated risk. The statements might be taken as indicating some form of violence engaged in by CXZ in front of his children, even if it was accepted that the violence constituted self-defence. 3. I turn then to the question of whether the Children's Guardian made an assessment of risk, notwithstanding its findings as to the allegations as I have discussed above. 4. I accept the submission of the Children's Guardian that the Tribunal did not make such an assessment within the four walls of the allegation as expressed in the paragraph of the judgment relied upon by the Children's Guardian in this respect. The Tribunal, as with allegations 2 and 3, merely set out the allegation and then stated its finding based on the available evidence without expressly referring to risk. The Tribunal does, however, use the wording "no positive findings in relation to the applicant" (whereas in previous findings the Tribunal had referred, in that respect, to CXZ's conduct or whether CXZ had done the alleged act). Taken at its highest, those words may suggest that the finding extended not only to the allegation itself, but also to the risk CXZ posed in the light of the evidence as to the allegation. That conclusion is supported by the Tribunal's statement that the finding was made on the basis of the material contained in the affidavit of CXZ's sister-in-law. It could therefore be argued that the Tribunal considered the evidence as to the allegation and made a finding as to CXZ's risk, rather than a finding as to whether the allegation was made out. 5. However, on balance I do not consider that conclusion can be reached. The Tribunal emphasised that "the affidavit was prepared as part of acrimonious family law proceedings", that "the applicant contested the truth of allegations" and that the "applicant's sister-in-law was not cross-examined on the affidavit" when forming its conclusion that it could make no positive finding. These three aspects of the Tribunal's discussion all go to the truth of the allegation, rather than specifically the risk that CXZ posed to children in the light of the evidence relating to the allegation. This construction being the better view, it is clear that the Tribunal did not address the third stage of the inquiry within the subject paragraphs. 6. However, in my view, it is tolerably clear that in later discussion in its decision, the Tribunal did grapple with, and resolve, whether CXZ potentially posed a risk with respect to this allegation. 7. In relation to the first element of the allegation, as mentioned above, the Tribunal stated that it had given particular weight to the findings of Dr Allnutt and Dr Jones in finding that CXZ posed low risk to children. 8. Dr Allnutt opined (see CXZ No 1 at [103]): He has a moderate loading of historical risk factors associated with general aggression. He has however a number of protective factors that ameliorate his risk profile. In addition, consideration needs to be given to the absence of aggressive behaviour towards others over a number of years (outside of those related to his work), as the principle is that an absence of aggressive behaviour over time at risk, is associated with the reduction of risk for aggression in the future (this is probably also associated with his age, as there is a relationship between a reduction in risk profile and ageing, in addition to his discontinuation of substances and probable adoption of a more pro-social lifestyle by the applicant). The aggressive behaviour, involving children relates to his own children, in a domestic context, remains ambiguous. However there has been no complaint of aggression towards children since 2005. 1. Dr Jones highlighted the current "protective factors" for the CXZ, including "stable close relationships which are active and engaging". 2. The Tribunal found the doctors considered that, while CXZ may have been aggressive (which presumably incorporates being "overbearing, manipulative and argumentative") in the past, there had been not only an absence of such behaviour over a number of years, but furthermore the CXZ currently exhibited no such behaviour. As the Tribunal gave "particular weight" to the findings of the doctors in assessing the current risk of the CXZ, the Tribunal had satisfactorily undertaken an assessment of the evidence relating to the first part of allegation 4. 3. As to the second element of allegation 4, I find that the Tribunal has conformed with what has been described as the third stage of the inquiry for the same reasons as analysed in relation to allegation 3 because that allegation (that CXZ was physically violent towards his second wife), encompasses the second element of allegation 4 (that CXZ was hitting his second wife). Allegation 5 1. Allegation 5 was expressed as follows (at [65]): [65] An affidavit from the former partner of the applicant sworn in 2004 is before us. In it, she describes threatening behaviour by the applicant in 2002 and 2003 in relation to his contact with the children… 1. Once again, this allegation is framed ambiguously. Firstly, it was not made explicitly clear which of CXZ's former partners was being referred to. Based on the years in question, I will proceed on the basis that the Tribunal was referring to CXZ's second wife, from whom CXZ separated in 2002. Secondly, it is unclear if the threatening behaviour was alleged to have been directed at the CXZ's second wife, their children, or both. I will assume that the allegation encompasses the broadest of these interpretations. However, it should be noted that many aspects of the CXZ's relationship with his second wife and children fall outside the time frame of allegation 5. For example, the "2005 incident with daughter" and the "2008 report of son running away" (at [79] and [82], respectively). 2. The Tribunal's findings in relation to allegation 5 were in very similar terms to allegation 4, as follows (at [65]): [65] … It is not disputed that the affidavit was prepared as part of acrimonious Family Law proceedings between the applicant and his second wife. The applicant disputes the content of the affidavit by his former partner who was not cross-examined in the course of the family law proceedings and who did not give evidence before us in these proceedings. On this basis, we make no positive findings in relation to the applicant on the basis of the material contained in it. 1. The Tribunal's expression "we make no positive findings" should be construed as in allegations 1, 2 and 4. 2. It should be noted, in this respect, that unlike in allegations 3 and 4, the Tribunal did not refer to a statement of CXZ in which he made concessions as to allegation 5. The Tribunal referred to two affidavits in which CXZ denied allegations of violence and intimidation made by his second wife and sister-in-law (at [68]). The Tribunal also extracted a statement made by CXZ in which he discussed the nature of his relationship with his second wife, however that statement did not disclose any admission by CXZ that he had behaved in a threatening manner as alleged in allegation 5. CXZ merely stated (at [46]): [46] … I accept that [my second wife] and I had many arguments and that our relationship was dysfunctional ... Also, after separation we were involved in highly contentious child custody proceedings and she was seeking the full time custody of all three of our children. 1. As in my consideration of the previous allegations, in evaluating whether the Tribunal undertook the requisite remaining step in evaluating risk, I have had regard to the paragraphs of the judgment relied upon by the Children's Guardian and other passages of the Tribunal's judgment which related to or concerned that issue. 2. As to the paragraph relied upon by the Children's Guardian as constituting the allegation, it is clear that the Children's Guardian undertook no such evaluation. The wording the Tribunal adopts in considering allegation 5 and the structure of the subject paragraph are almost identical to allegation 4. In my view, for the same reasons discussed in relation to allegation 4, I do not find that the Tribunal has undertaken the third stage of the inquiry. The Tribunal did not expressly deal with the risk that CXZ poses to children in the light of the allegation, nor is an implication available to that effect based on the wording or structure of the subject paragraph. As in allegation 4, the Tribunal emphasised matters that go to the truth of the allegation, in favour of and to the exclusion of any assessment as to the risk that CXZ poses to children in light of the evidence relating to the allegation. This is demonstrative that the Tribunal's analysis does not accord with the third stage of the inquiry. 3. However, in the balance of the decision I do consider that the Tribunal undertook that task, for the reasons that follow: 1. First, at [57], the Tribunal, in assessing the risk of CXZ, gave "little weight" to FACS notifications (subsequent to 2001) made by CXZ's second wife in the course of the family law proceedings. These notifications included the period that allegation 5 related to and therefore likely concerned the subject matter of allegation 5. 2. Secondly, at [71], the Tribunal gave "limited weight" to an affidavit sworn by CXZ's sister in 2004, in which CXZ's sister disclosed "real concerns about the [CXZ's] children residing with [CXZ]". These concerns may have encompassed allegation 5 as they presumably relate to CXZ's contact with children, although that much is not made clear. 3. Thirdly, at [78], the Tribunal gave "limited weight" to an affidavit sworn in 2005 by a relative of the CXZ's second wife describing "the applicant's intimidatory behaviour" and, at [68], gave "some weight" to two affidavits of CXZ sworn in 2006 in which the CXZ denied allegations of violence and intimidation made by his second wife and sister-in-law. As allegation 5 referred to "threatening behaviour", it is likely that the Tribunal's consideration of these affidavits formed part of the Tribunal's assessment of risk having regard to allegation 5, although that much is not made explicitly clear. 4. Fourthly, at [67], the Tribunal gave "some weight" to an affidavit sworn by CXZ in 2005 describing CXZ's relationship with his second wife and their children. It can be assumed that this affidavit covered the period and was relevant to allegation 5. 5. Further, the Tribunal placed an emphasis on factors more relevant to current risk. For example, the Tribunal gave weight to, and thus accepted, the report of Associate Professor Quadrio, which, inter alia, stated (see extract at [61] of CXZ No 1): The father's commitment to the children appears to be quite unreserved… [He] presents as very child-focussed, he has considerable warmth and affection and relates to the children with lots of physical affection… 1. Thus, notwithstanding allegations of threatening behaviour in relation to his contact with children in 2002-2003, in assessing the risk of CXZ, the Tribunal considered that more weight should be attributed to the fact that no such behaviour was currently exhibited by CXZ, who, it was accepted, was "seen to be a loving and caring father" (at [119]). Accumulated Weight 1. I have found that contrary to the submissions advanced by the Children's Guardian, that, when viewed as a whole, the Tribunal, by its decision, did grapple with the full panoply of issues relevant to the assessment of risk with respect to four of the five allegations identified by the Children's Guardian. 2. In one respect, the Children's Guardian's submissions do not grapple with this scenario as they were substantially predicated upon the foundation that, contrary to the conclusions reached in this judgment (save for allegation 1), the Tribunal had not fully assessed risk consistently with the relevant principles deriving from M v M as discussed in this judgment. 3. However, the Children's Guardian also contended that, irrespective of the particular conclusions made by the Court as to each allegation, it should find the Tribunal failed to consider the accumulated weight of the allegations. 4. Thus, the Children's Guardian's submissions did raise the issue of accumulated weight even in the context now operating in consequence of the findings made in this judgment (that is the context of the findings as to the allegations raised in this judgment) and in any event require examination in consequence of the principles to which I have earlier referred in this judgment. Specifically, the Children's Guardian submitted: 1. The Tribunal effectively proceeded one by one through the allegations (and other allegations raised against CXZ) and dismissed each one as being of little or limited weight. 2. Had the Tribunal reached a conclusion as to the risk associated with the allegations it would not have attributed little weight, and certainly it could not have attributed "no weight" to the allegations. It was contended that some of the allegations were supported by sworn testimony; a matter the Tribunal might have taken into account when weighing them 3. That is significant because the "task of the Tribunal was 'to count' the various matters to make an evaluation of their accumulated weight when assessing the risk posed by the applicant". 1. Reference should also be made to two further aspects of the submissions of the Children's Guardian as to the conclusions appearing at the end of the Tribunal's discussion. First, the Children's Guardian submitted: 24. It is true that the Tribunal, towards the end of its reasons, when it summarized its reasons for concluding that [CXZ] did not pose a risk to the safety of children (at [143]–[154]), returned to some (presumably important) parts of the case (the sexual activity towards siblings, a charge of social security fraud, the acquittal for murder, the violence towards [CXZ's] two wives ['We accept that [CXZ] was violent towards his first wife. We accept that the relationship with his second wife was one that involved violence. We accept that [CXZ's] children witnessed violence between their parents']) but that was not an exercise in assessing the total weight of all the matters before the Tribunal. Rather, it appears that the Tribunal decided to disregard many of those matters. 1. Secondly, as outlined at [94] above, the Children's Guardian also advanced a submission that, whilst there was a particular weighing of various other allegations (other than the allegations), the Tribunal's decision did "not speak in terms of what risk was indicated by all of these matters together". The Tribunal provided a series of examples which I will not repeat. 2. CXZ did not specifically develop submissions on this issue. 3. The Children's Guardian was correct to submit that the Tribunal did not expressly or impliedly evaluate the accumulated weight of the evidence of the allegations when assessing the risk posed by CXZ in its conclusions. 4. It is true that the Tribunal addressed in its conclusions, particularly at [147]-[148], aspects of allegations 2, 3 and 4. However the analysis was confined to, largely, whether CXZ was engaged in particular conduct described in those allegations and not as to the risks posed to children from these findings (although the Tribunal recognised that the children witnessing the violence was detrimental to them). Of even greater significance was the failure of the Tribunal to evaluate the cumulative weight of its various findings, that I have found were made, as to risk (the third stage of the inquiry) for allegations 2, 3 and 4 in its concluding assessment as to risk (or perhaps even as to the particular risks that I have found the Tribunal to have considered when dealing with each allegation individually). 5. This is not to suggest that the concluding remarks do not give consideration to the assessment of risk based on current circumstances as discussed in [148] based on, for example, the approach taken by the Family Court (or later the opinion of experts as to current risk) but this does not bring to account what aspects of the earlier allegations' and findings as to risk in that respect should count for in the mix of these factors. For example, the Tribunal refers in [148] to the violence between CXZ and his second wife as being "no longer ongoing" (which specifically relates to allegation 3 and the second element of allegation 4), but does not address how any risks said to arise in that context are to be evaluated cumulatively or otherwise in the final conclusions. The focus of attention appears to be on whether the allegations were made out and whether there are current factors which would indicate the absence or mitigation of risk. 6. In [152] and [153], the Tribunal referred to events having occurred up to 30 years ago but it is not made clear how that passage of time and how any risks arising from an earlier time have been the subject of the Tribunal's deliberation. This is not to say the Tribunal did not place reliance on the evidence of the doctors as to risk diminishing over time and, as mentioned, their current estimate of risk, but that does not entail the Tribunal either specifically in relation to each allegation or in a cumulative sense discussing what risk was posed by CXZ based on their earlier findings (as I identified at various places in their decision earlier in this judgment). 7. There is nothing in the Tribunal's discussion arising under the requirement of s 30(1) of the Act which would alter this conclusion. Nor do I consider that it would be inferred that the Tribunal addressed the risk posed by allegations 2, 3 and 4 on a cumulative basis having regard to the manner in which the Tribunal approached the assessment of risk. Each allegation was assessed as a silo. It is true that it was necessary to travel outside the principal discussion of the allegation (as relied upon by the Children's Guardian) in order to ascertain the Tribunal was discussing the ultimate or final issue of risk (described as the third stage) but the discussion, such as it was, concerned the particular allegation under consideration. In fact the fragmented nature of the discussion sits ill with the notion of some overarching discussion in the Tribunal's conclusion drawing together the strands of its findings. I give some examples below. 8. In finding that the Tribunal dealt with risk in the case of allegation 2, I referred to the Tribunal's statement at [116] of its decision, where it gave no weight to the 2000 AVO in its assessment of risk and the particular weight that the Tribunal placed on the report of Dr Jones which concluded CXZ posed a low risk to the safety of children in spite of CXZ's conceded history of domestic violence with his second wife and the AVOs in place over the course of their relationship. This discussion was located under the following headings: 1. "The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b))"; 2. "Conclusion on section 30(1) matters"; and 3. "Psychiatric reports". 1. As to allegation 3, I noted the Tribunal's reliance on the evidence pertaining to the allegation not being indicative of the risk that CXZ "currently" posed and the fact that the Tribunal placed "particular weight" on the findings of Dr Allnutt, who concluded that in spite of any evidence relating to allegation 3, CXZ was in the low range of risk. That discussion was also found under the same three headings listed in the preceding paragraph. 2. As to allegation 4, I once again referred to the particular weight that the Tribunal had placed on the findings of Dr Allnutt and Dr Jones, who had both assessed CXZ to pose a low risk to children in the light of the evidence as to allegation 4. I also noted that the Tribunal had adequately assessed risk in accordance with the third stage of the inquiry for the same reasons as in allegation 3. This discussion was found under the same headings as in allegations 2 and 3 (see extracted above at [298]). 3. It is unclear from the concluding remarks just what attention the Tribunal paid to allegations 1 and 5 (it seems to be limited to passing reference to "a series of notifications to FACS/DOCS since the applicant's acquittal in 1997" (at [121]) and "a wealth of documentation from the 2002 and 2003 Family Law proceedings" including statements alleging violence by CXZ (at [118]). However, the direct connection that these statements had to the allegations was not properly set out by the Tribunal), but certainly no consideration as to how the risks associated with these allegations (noting the earlier finding that the Tribunal did not engage in the third stage consideration in dealing with allegation 1) may have contributed to the assessment of risk in a cumulative sense. 4. It follows, in these circumstances, I consider Ground 1 to be made out. Ground 2 1. The Children's Guardian accepted that its contentions as to the inadequacy of reasons mirrored its contentions under ground 1. In oral submissions the Children's Guardian submitted: There is an alternative ground which only arises if your Honour is persuaded that the tribunal did apply M v M and that alternative ground is they failed to give adequate reasons in its discharge of its functions. 1. As I have found that the Tribunal did not apply M v M, it would appear to be unnecessary to resolve ground 2. 2. The approach to the resolution of a ground of the kind is well settled. In this respect, it should be remembered that reasons be read as a whole, fairly and with a "beneficial construction": Wu Shan Liang at 271 to 272. Reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 272. 3. Without relying on the question, I observe, having regard to the foregoing findings and bearing in mind the approach adopted by the Children's Guardian to this ground, it would appear that the first four of the six bases expressed in support of ground 2 may be rejected (see [18] and [100] above). However, the remaining two contentions of the ground seem to have greater force. The Contention 1. I reject the contention advanced by CXZ, essentially upon the contentions advanced by the Children's Guardian. The issue sought to be ventilated by CXZ, in this respect, was not raised before the Tribunal. I agree the Tribunal cannot be said to have erred by not accepting an unmade contention that the evidence should have been received on a limited basis. 2. Nor was there a sufficient basis advanced by CXZ as to why the Tribunal would necessarily have received the evidence on that basis in the absence of a request to have the subject deponent made available for cross-examination and objection raised as to the receipt of the evidence (attention should also be given to my earlier discussion of FZ and BRL). Conclusion 1. I have accepted the Children's Guardian's submissions as to the principles applicable to the determination the Tribunal was required to undertake, with respect to the application before it. Whilst I have rejected the Children's Guardian's contentions as to the application of those principles with respect to particular allegations, namely allegations 2, 3, 4 and 5 (but not 1), I have concluded that the Children's Guardian's contentions as to the failure of the Tribunal to properly assess the accumulated weight which should be attached to those risks was correct. Ground 1 should be accepted on that basis. 2. It is, therefore, unnecessary to resolve ground 2. I have rejected the contention advanced by CXZ. 3. It follows that the first three orders proposed by the Children's Guardian should be made. The parties accepted that costs should follow the event. DIRECTION 1. The Children's Guardian shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment. ******** 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 August 2019