Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CDX v Children's Guardian [2016] NSWCATAD 17 Hearing dates: 13 January 2016 Date of orders: 22 January 2016 Decision date: 22 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson - Senior Member
E Hayes - General MemberDecision: 1. The application for review of the decision of the Children's Guardian filed 11 September 2015 is granted.
2. The decision of the Children’s Guardian dated 18 August 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside.
3. The Children’s Guardian shall within 7 days issue to the applicant a Working with Children Check clearance.Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-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 – extensive criminal history of 5 assault convictions and 2 convictions for assault occasioning actual bodily harm- 3 assault charges and one assault occasioning actual bodily harm charge were withdrawn- convictions for contravening an apprehended domestic violence order and for destroying and damaging property that occurred in circumstances of domestic violence - onus of proof in a review under section 27 - no real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to set aside the decision of the Children’s Guardian and grant a working with children clearance. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v…
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Details
- AGLC
- CDX v Children's Guardian [2016] NSWCATAD 17
- Case
- [2016] NSWCATAD 17
- Decision Date
CaseChat Overview and Summary
The matter before the court involved an applicant seeking a review of a decision made by the Children's Guardian under section 27 of the Child Protection (Working with Children) Act 2012. The applicant contested the refusal of their application for a working with children check clearance. The court was tasked with determining whether the refusal was the correct and preferable decision based on the evidence presented.
The central legal issue was whether the applicant posed a risk to the safety of children, considering their extensive criminal history, which included five assault convictions and two convictions for assault occasioning actual bodily harm. The court also had to consider three assault charges and one assault occasioning actual bodily harm charge that were withdrawn, as well as convictions for contravening an apprehended domestic violence order and for destroying and damaging property that occurred in circumstances of domestic violence. Additionally, the court needed to establish the onus of proof in a review under section 27 and assess whether the applicant posed a real and appreciable risk to the safety of children.
The court found that there was no real and appreciable risk posed by the applicant to the safety of children, considering the material before the tribunal. It concluded that the refusal of the working with children check clearance was not the correct and preferable decision. The court granted the application for review, set aside the Children's Guardian's decision dated 18 August 2015, and ordered that the Children’s Guardian issue the applicant a Working with Children Check clearance within seven days.
The central legal issue was whether the applicant posed a risk to the safety of children, considering their extensive criminal history, which included five assault convictions and two convictions for assault occasioning actual bodily harm. The court also had to consider three assault charges and one assault occasioning actual bodily harm charge that were withdrawn, as well as convictions for contravening an apprehended domestic violence order and for destroying and damaging property that occurred in circumstances of domestic violence. Additionally, the court needed to establish the onus of proof in a review under section 27 and assess whether the applicant posed a real and appreciable risk to the safety of children.
The court found that there was no real and appreciable risk posed by the applicant to the safety of children, considering the material before the tribunal. It concluded that the refusal of the working with children check clearance was not the correct and preferable decision. The court granted the application for review, set aside the Children's Guardian's decision dated 18 August 2015, and ordered that the Children’s Guardian issue the applicant a Working with Children Check clearance within seven days.
Orders
Orders of the court
1. The application for review of the decision of the Children's Guardian filed 11 September 2015 is granted.
2. The decision of the Children’s Guardian dated 18 August 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside.
3. The Children’s Guardian shall within 7 days issue to the applicant a Working with Children Check clearance.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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