AYU v The Children's Guardian - [2021] NSWCATAD 48

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: AYU v The Children’s Guardian [2021] NSWCATAD 48
Hearing dates: 17 November 2020 and 23 December 2020
Date of orders: 4 March 2021
Decision date: 04 March 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
Emeritus Professor P J Foreman AM, General Member
Decision:
(1) The decision of the Children’s Guardian dated 27 September 2019 to refuse to grant the applicant a working with children check clearance is set aside.
(2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction in 2002 for manslaughter.
(3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

Catchwords:
ADMINISTRATIVE LAW — Application for enabling order under section 28 of Child Protection (Working with Children) Act 2012

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
ASIC v Rich [2005] NSWSC 149
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BKE v Office of Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214

Category: Principal judgment
Parties: AYU (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
Nicholas Graham Lawton, Priest Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2019/341730
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

The applicant is a disqualified person under s 18(1) of the Child Protection (Working with Children) Act 2012 (the Act), having been convicted in 2002 of the manslaughter of her child. The applicant seeks administrative review of a decision of the respondent made on 27 September 2019 to not grant a working with children check clearance and seeks an enabling order pursuant to s 28(1) of the Act, declaring that she is not to be treated as a disqualified person for the purposes of that Act in respect of her 2002 conviction.
If granted, an enabling order is not made subject to conditions (refer to s 28(7) of the Act) and the applicant will be granted a working with children check clearance to work in “child-related work” as defined in s 6 of the Act.
The applicant has previously applied for an enabling order on 29…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCATAD 48
Decision Date: 04 March 2021

CaseChat Overview and Summary

The applicant in this case sought an enabling order from the Supreme Court of New South Wales, challenging the Children’s Guardian’s refusal to grant her a working with children check clearance. The applicant’s refusal stemmed from her 2002 conviction for manslaughter. The court was tasked with determining whether the Guardian’s decision was lawful and whether the applicant qualified for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012.

The primary legal issue before the court was whether the Children’s Guardian’s decision to refuse the applicant a working with children check clearance was valid under the Act. The court had to consider the legislative criteria for disqualification and the application of section 28(6) of the Act, which allows for an enabling order in certain circumstances. Additionally, the court examined the proportionality of the Guardian’s decision in light of the applicant’s rehabilitation and the time elapsed since her conviction.

In its reasoning, the court found that the Children’s Guardian’s decision was not supported by the Act, as it did not adequately consider the applicant’s rehabilitation and the significant passage of time since her conviction. The court held that the Guardian’s decision was unreasonable and thus invalid. Furthermore, the court concluded that the applicant’s conviction for manslaughter did not disqualify her from obtaining a working with children check clearance, given her demonstrated rehabilitation and the mitigating circumstances of the case. Consequently, the court ordered the Guardian to grant the applicant a working with children check clearance.

The final orders of the court were that the Children’s Guardian’s decision dated 27 September 2019 be set aside, the applicant not be treated as disqualified for the purposes of the Act due to her 2002 conviction, and the Guardian to grant the applicant a working with children check clearance pursuant to the Act.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 27 September 2019 to refuse to grant the applicant a working with children check clearance is set aside.

(2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction in 2002 for manslaughter.

(3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AYU v The Children’s Guardian [2021] NSWCATAD 48
Hearing dates:	17 November 2020 and 23 December 2020
Date of orders:	4 March 2021
Decision date:	04 March 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member Emeritus Professor P J Foreman AM, General Member
Decision:	(1) The decision of the Children’s Guardian dated 27 September 2019 to refuse to grant the applicant a working with children check clearance is set aside. (2) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of her conviction in 2002 for manslaughter. (3) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW — Application for enabling order under section 28 of Child Protection (Working with Children) Act 2012
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	ASIC v Rich [2005] NSWSC 149 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214
Category:	Principal judgment
Parties:	AYU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Nicholas Graham Lawton, Priest Legal (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/341730
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.