CCW v Children's Guardian - [2016] NSWCATAD 273

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CCW v Children’s Guardian [2016] NSWCATAD 273
Hearing dates: 19 May 2016
Date of orders: 25 November 2016
Decision date: 25 November 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
A Limbury, General Member
Decision:
(1) The decision of the Children's Guardian dated 13 July 2015 to refuse to grant the applicant a Working with Children check clearance is confirmed
(2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.
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

Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- where Applicant has not been convicted - whether Applicant poses threat to safety of children
Legislation Cited: Child Protection (Working with Children Act) 2012 NSW
Crimes Act 1900 NSW
Administrative Decisions Review Act 1997 NSW
Civil and Administrative Tribunal Act 2013 NSW
Commission for Young Children and Young People Act 1998 NSW
Family Law Act 1975 (Cth)
Evidence Act 1995 NSW
Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247
Commission for Children and Young People v V [ 2002] NSWSC 949.
ADV v Commission for Children and Young People [2012] NSWADT 8,
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140]
RV v Commission for Children and Young People [2007] NSWADT 299
Commissioner for Children and Young People v FZ [2011] NSWCA
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category: Principal judgment
Parties: CCW (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
K Conte-Mills (Applicant)
P Lowson (Respondent)
Solicitors:
Phillip A Wilkins & Associates (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510472
Publication restriction: See Order 2

reasons for decision

The application

The Applicant, who is referred to in this decision as CCW, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.
The Respondent conducted a risk assessment as required under legislation and determined that CCW is a risk to the safety of children and refused to issue a WWCCC. The Respondent notified the Applicant of this decision on 13 July 2015.
In an application filed on 10 August 2015 pursuant to s.27(1) of the Child Protection (Working with Children) Act, CCW seeks a review of the decision of the Children’s Guardian to refuse him a WWCCC.
There is no dispute that the Tribunal has jurisdiction to hear and determine the application.

The trigger matters

In September 1994 CCW was tried for offences of Aggravated Sexual Intercourse (s. 61J Crimes Act

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: [2016] NSWCATAD 273
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the matter of CCW v Children's Guardian, the court addressed a dispute concerning the refusal of a Working with Children check clearance by the Children's Guardian. The applicant, CCW, sought review of the decision under section 27 of the Child Protection (Working with Children) Act 2012. The Guardian had refused to grant CCW a clearance, citing concerns over the safety and well-being of children, despite the applicant not having been convicted of any offence.

The legal issues central to the case were whether the Children's Guardian's decision was lawful and whether the applicant posed a threat to the safety of children. The court had to determine if the Guardian's decision was justified under the Act, particularly in the absence of a conviction against CCW. The applicant argued that the decision was not supported by the evidence, whereas the Guardian maintained that the decision was based on information indicating potential risk to children.

The court found that the Children's Guardian's decision was well-founded and within the scope of their protective jurisdiction. The Guardian had considered all relevant information and had a reasonable basis to conclude that CCW posed a threat to the safety and well-being of children. The court emphasised the importance of the Children's Guardian acting in the interests of child protection, even in the absence of a criminal conviction. Accordingly, the court confirmed the Guardian's decision, finding it to be lawful and justified under the Act. The court also ordered that the names of the applicant, any alleged victim, or any child involved in the matter should not be disclosed.

Orders

Orders of the court

(1) The decision of the Children's Guardian dated 13 July 2015 to refuse to grant the applicant a Working with Children check clearance is confirmed

(2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.

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

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:	CCW v Children’s Guardian [2016] NSWCATAD 273
Hearing dates:	19 May 2016
Date of orders:	25 November 2016
Decision date:	25 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member A Limbury, General Member
Decision:	(1) The decision of the Children's Guardian dated 13 July 2015 to refuse to grant the applicant a Working with Children check clearance is confirmed (2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. 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
Catchwords:	Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- where Applicant has not been convicted - whether Applicant poses threat to safety of children
Legislation Cited:	Child Protection (Working with Children Act) 2012 NSW Crimes Act 1900 NSW Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category:	Principal judgment
Parties:	CCW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: K Conte-Mills (Applicant) P Lowson (Respondent) Solicitors: Phillip A Wilkins & Associates (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510472
Publication restriction:	See Order 2