CDH v Children's Guardian - [2018] NSWCATAD 191

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CDH v Children’s Guardian [2018] NSWCATAD 191
Hearing dates: 25 June 2018
Date of orders: 25 June 2018
Decision date: 25 June 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S. Scarlett, Senior Member
R.Royer, General member
Decision:
1. The decision of the Respondent Children’s Guardian is set aside.
2. In substitution for that decision, the Applicant is to be granted a Working With Children Check clearance
Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children – applicant’s criminal history considered
Legislation Cited: Administrative Decisions Review Act 1997 (NSW),
Child Protection (Working with Children)
Act 2012 (NSW) ss 8,9,15,18,27, 30, 31
Civil and Administrative Tribunal Act 2013 (NSW) s 64
s 58
Cases Cited: BKE v Office of the Children’s Guardian [2015] NSWSC 523
CGB v Children’s Guardian [2018] NSWSC 776
Children’s Guardian v CKF [2017] NSWSC 893
Children’s Guardian v CVE [2017] NSWSC 1342
Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Tilley v Children’s Guardian [2017] NSWCA 174
Category: Principal judgment
Parties: CDH (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Mr Fraser (Applicant)
Ms Wong (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00340224
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcastof the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 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

This is an Application under s 27 of the Child Protection (Working with Children) Act 2012 (NSW) for review of the decision of the Children’s Guardian made on 26 October 2017 and notified to the Applicant on 21 October 2017 to refuse to grant to the Applicant a Working With Children Check clearance. That refusal is made under the provisions of subs 18(2) of the Child Protection (Working with Children) Act and the reason given by the Children’s Guardian is that the Children’s Guardian was satisfied that the Applicant posed a risk to the safety of children.
The Applicant on 8 November 2017 filed an Application for Administrative Review of that decision. The grounds of his Application are set out as follows:

I do not believe that I pose a risk to children. I have acknowledged and address all matters on my criminal record. I have provided medical evidence…

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 CDH v Children's Guardian

Details

AGLC: CDH v Children's Guardian [2018] NSWCATAD 191
Case: [2018] NSWCATAD 191
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case of CDH v Children's Guardian involved the applicant seeking a review of a decision by the Children's Guardian under the Child Protection (Working with Children) Act 2012 (NSW). The applicant, who had a criminal history, was denied a working with children check clearance. The applicant argued that the Guardian's refusal was unreasonable and sought to have it set aside. The dispute was heard by the NSW Civil and Administrative Tribunal.

The primary legal issues addressed by the court were whether the Guardian's decision to refuse the working with children check clearance was the correct and preferable decision, considering the material before the Tribunal, and whether the applicant posed a risk to the safety of children. The court needed to determine if the Guardian had correctly exercised her discretion in denying the clearance and whether the applicant's criminal history warranted such a decision.

In reaching its decision, the Tribunal considered the statutory framework and the principles of administrative law. It examined the evidence and submissions provided by both parties, focusing on the relevance and weight of the applicant's criminal history in assessing the risk to children. The Tribunal concluded that the Guardian had not adequately considered the material before her and that the decision to refuse the clearance was not the correct or preferable one. The Tribunal found that the applicant did not pose a significant risk to the safety of children, and accordingly, the decision of the Children's Guardian was set aside. The Tribunal granted the applicant a working with children check clearance in substitution for the decision that was set aside.

Orders

Orders of the court

1. The decision of the Respondent Children’s Guardian is set aside.

2. In substitution for that decision, the Applicant is to be granted 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:	CDH v Children’s Guardian [2018] NSWCATAD 191
Hearing dates:	25 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S. Scarlett, Senior Member R.Royer, General member
Decision:	1. The decision of the Respondent Children’s Guardian is set aside. 2. In substitution for that decision, the Applicant is to be granted a Working With Children Check clearance
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children – applicant’s criminal history considered
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), Child Protection (Working with Children) Act 2012 (NSW) ss 8,9,15,18,27, 30, 31 Civil and Administrative Tribunal Act 2013 (NSW) s 64 s 58
Cases Cited:	BKE v Office of the Children’s Guardian [2015] NSWSC 523 CGB v Children’s Guardian [2018] NSWSC 776 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CVE [2017] NSWSC 1342 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Tilley v Children’s Guardian [2017] NSWCA 174
Category:	Principal judgment
Parties:	CDH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr Fraser (Applicant) Ms Wong (Respondent) Solicitors: Legal Aid NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00340224
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcastof the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 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.