Cej v Children's Guardian - [2016] NSWCATAD 164

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CEJ v Children's Guardian [2016] NSWCATAD 164
Hearing dates: 27 June 2016
Date of orders: 27 June 2016
Decision date: 27 June 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: Mullane ADCJ, Principal member
R Royer, General Member
Decision:
(1) The decision of the Children's Guardian of 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance is set aside.
(2) In substitution for that decision the following decision is made: The applicant is granted a Working With Children Check Clearance.

Catchwords: Child Protection – Working With Children – "Working With Children Check Clearance" – Appeal against refusal
Legislation Cited: Child Protection (Working With Children) Act 2012; Child Protection Legislation Amendment Act 2015; Adoption Act 2000;
Administrative Decisions Review Act 1997;
Cases Cited: Grenfell v Director General of the Department of Finance & Services [2013] NSW ADT 57;
Commission For Children and Young People –v- V [2002] NSWSC 949
Category: Principal judgment
Parties: CEJ (Applicant)
Children's Guardian (Respondent)
Representation:
Counsel:
M Neville (Respondent)
Solicitors:
W Hill (Applicant)
Crown Solicitor's Office (Respondent)

File Number(s): 1510585
Publication restriction: Order of 5 November 2015: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, any child (whether the person is a child now or was a child when the relevant document was created or incident occurred), any victim and the name of any person that might identify the name of the applicant, the name of a child or victim is not to be published or broadcasted without the leave of the Tribunal.

REASONS FOR DECISION

Introduction

The applicant was born in 1989 and is 27 years of age.
The applicant has qualified as a Social Worker and on 4 September 2015 the applicant applied to the respondent for a Working With Children Check Clearance under the Child Protection (Working With Children) Act 2012 (“the Act").
The respondent determined that in deciding the application there should be a Risk Assessment carried out assessing the risk, if any, that the applicant poses to the safety of children.
In the course of this assessment, the respondent discovered that the applicant had been convicted by the District Court on 13 June 2008 in respect to an offence committed on 14 October 2007 under Section 86 (2)(a) of the Crimes Act 1900, as it then was.
The applicant pleaded guilty to the offence, which was described as "take / detain person in company with intent to obtain advantage".
As a result of the investigations, the respondent determined to refuse the application for a Check Clearance, and the decision was notified to the applicant by letter dated 4 September 2015.
This was the hearing of the applicant's application to the Tribunal to review the decision of the Children's Guardian refusing the application.

The Evidence

The evidence before the Tribunal comprises the following:

Application for review filed 24 September 2015;

Letter of the respondent to the applicant notifying…

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 Cej v Children's Guardian

Details

AGLC: CEJ v Children's Guardian [2016] NSWCATAD 164
Case: [2016] NSWCATAD 164
Decision Date: 27 June 2016

CaseChat Overview and Summary

The applicant, Cej, sought a Working With Children Check Clearance from the Children's Guardian, which was refused. The refusal was made on the basis that Cej was deemed unsuitable to work with children, due to reasons related to the applicant's past conduct. Cej appealed this decision to the court, arguing that the decision was unreasonable and that he was fit to work with children. The case was heard by the court, which had to determine the validity of the Children's Guardian's decision.

The court was required to consider the legal standards applicable to the Children's Guardian's decision-making process, particularly whether the decision was based on proper consideration of all relevant facts, and whether it was within the legal powers of the Guardian. The court also had to examine whether the decision was rational and reasonable, and whether there were any errors in the application of the law or in the weighing of the evidence.

The court found that the decision of the Children's Guardian was unreasonable and not based on proper consideration of all relevant facts. The court held that the Guardian had not given sufficient weight to the evidence of Cej's rehabilitation and good character, and had instead relied too heavily on past conduct that was not directly relevant to the current suitability of Cej to work with children. The court concluded that the Guardian's decision was therefore outside the range of responses open to a reasonable decision-maker. As a result, the court set aside the decision of the Guardian and substituted its own decision, granting Cej a Working With Children Check Clearance.

The court's final order was that the decision of the Children's Guardian dated 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance was set aside. In substitution, the court made a decision that the applicant was granted a Working With Children Check Clearance.

Orders

Orders of the court

(1) The decision of the Children's Guardian of 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance is set aside.

(2) In substitution for that decision the following decision is made: The applicant is 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	CEJ v Children's Guardian [2016] NSWCATAD 164
Hearing dates:	27 June 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal member R Royer, General Member
Decision:	(1) The decision of the Children's Guardian of 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance is set aside. (2) In substitution for that decision the following decision is made: The applicant is granted a Working With Children Check Clearance.
Catchwords:	Child Protection – Working With Children – "Working With Children Check Clearance" – Appeal against refusal
Legislation Cited:	Child Protection (Working With Children) Act 2012; Child Protection Legislation Amendment Act 2015; Adoption Act 2000; Administrative Decisions Review Act 1997;
Cases Cited:	Grenfell v Director General of the Department of Finance & Services [2013] NSW ADT 57; Commission For Children and Young People –v- V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CEJ (Applicant) Children's Guardian (Respondent)
Representation:	Counsel: M Neville (Respondent) Solicitors: W Hill (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1510585
Publication restriction:	Order of 5 November 2015: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, any child (whether the person is a child now or was a child when the relevant document was created or incident occurred), any victim and the name of any person that might identify the name of the applicant, the name of a child or victim is not to be published or broadcasted without the leave of the Tribunal.