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CCW v Children's Guardian

CCW v Children's Guardian

Case [2017] NSWSC 988 27 July 2017

Judicial Review

Standing

Reasonableness Review

Administrative Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: CCW v Children’s Guardian [2017] NSWSC 988
Hearing dates: 19 July 2017
Date of orders: 27 July 2017
Decision date: 27 July 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Summons dismissed.
(2) The Plaintiff is to pay the Defendant’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Check Clearance – Plaintiff’s stepson and daughter make and withdraw allegations that he sexually assaulted them – criminal charges dropped – Plaintiff has significant criminal record and exhibits other antisocial risk factors – Children’s Guardian cancelled Clearance – Tribunal confirmed decision to cancel Clearance – whether Tribunal’s decision so unreasonable that no reasonable Tribunal could have made it – whether Tribunal failed to place sufficient weight on Family Court consent order giving Plaintiff custody of grandchildren – whether Tribunal erred in not finding that allegations did not occur – no error of law demonstrated – summons dismissed
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Family Law Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
C v W [2015] NSWSC 1774
Children’s Guardian v CKF [2017] NSWSC 893
Commission for Children and Young People v V [2002] NSWSC 949
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
John Prendergast and Vanessa Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69
M v M (1988) 166 CLR 69; [1988] HCA 68
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R L & D Investments P/L v Bisby & Anor [2002] NSWSC 1082; (2002) 37 MVR 479
Category: Principal judgment
Parties: CCW (Plaintiff)
Children’s Guardian (Defendant)
Representation:
Counsel:
L Fermanis (Plaintiff)
P Lowson (Defendant)
Solicitors:
Phillip A. Wilkins & Associates (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2016/384228
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Administrative and Equal Opportunity Division

Citation:

[2016] NSWCATAD 273

Date of Decision:

25 November 2016

Before:

R Booby (Senior Member)A Limbury (General Member)

File Number(s):

1510472

Judgment

The Plaintiff, who was born in 1957, applied for a Working with Children Check Clearance (“the Clearance”) from the Defendant, the Children’s Guardian. That application was refused by the Children’s Guardian on 13 July 2015.
He appealed to the New South Wales Civil and Administrative Tribunal. On 25 November 2016 the Tribunal confirmed the decision of the Children’s Guardian to refuse to grant the Clearance to the Plaintiff. The Plaintiff now appeals to this Court against the Tribunal’s decision.

Background

In September 1994 the Plaintiff was tried for the offences of aggravated sexual intercourse (contrary to s 61J of the Crimes Act 1900

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.

Continue reading CCW v Children's Guardian

Details

AGLC: CCW v Children's Guardian [2017] NSWSC 988
Case: [2017] NSWSC 988
Decision Date: 27 July 2017

CaseChat Overview and Summary

In the matter of CCW v Children's Guardian, the dispute centred on the decision by the New South Wales Civil and Administrative Tribunal to cancel the Working with Children Check Clearance of the Plaintiff, CCW. The Children's Guardian had cancelled the clearance in response to allegations made by the Plaintiff's stepson and daughter that he sexually assaulted them, allegations which were subsequently withdrawn and resulted in the dropping of criminal charges. Despite the withdrawal of the allegations, the Guardian cancelled the clearance based on the Plaintiff's significant criminal history and other antisocial risk factors. The Plaintiff appealed the Tribunal's decision to confirm the cancellation of his clearance, arguing that the Tribunal failed to adequately consider a Family Court consent order granting him custody of his grandchildren.

The legal issues before the court were whether the Tribunal's decision was so unreasonable that no reasonable Tribunal could have made it, and whether the Tribunal failed to appropriately weigh the Family Court's consent order. The Plaintiff further argued that the Tribunal erred by not finding that the allegations did not occur. The court examined the Tribunal's reasoning and whether there was any error of law in its decision-making process. The court considered the evidence and submissions presented to the Tribunal and assessed whether the Tribunal's conclusion was open to it based on the material before it.

The court found that the Tribunal had carefully considered the evidence and exercised its discretion in making its decision. It held that the Tribunal's decision was not so unreasonable as to amount to an error of law. The court noted that the Tribunal was entitled to consider the Plaintiff's criminal history and risk factors, even in the absence of a conviction. Furthermore, the court found that the Tribunal appropriately weighed the Family Court's consent order but ultimately concluded that it did not outweigh the other considerations. The court also rejected the Plaintiff's argument that the Tribunal should have found the allegations did not occur, finding that this was a matter for the Tribunal to determine based on the evidence before it.

As a result, the court dismissed the Plaintiff's appeal and affirmed the Tribunal's decision to cancel his Working with Children Check Clearance. The court held that there was no demonstrated error of law in the Tribunal's decision-making process, and thus the appeal was without merit.

Orders