CEV v Children's Guardian - [2017] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CEV v Children’s Guardian [2017] NSWCATAD 10
Hearing dates: 21 September 2016
Date of orders: 13 January 2017
Decision date: 13 January 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
R Royer, General Member
Decision:
(1) The decision of the Children's Guardian dated 24 August 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 – Findings in respect of criminal allegations – Evidence – Inability to test evidence – Absence of witness statements – Absence of trial transcript - Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Cases Cited: AHV v NSW Commission for Children and Young People [2012] NSWADT 263
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BYR v Children's Guardian [2013] NSWADT 310
CBN v Children’s Guardian [2016] NSWCATAD 240
Children’s Guardian v BRL [2016] NSWSC 1206
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
FZ v Commissioner for Children and Young People [2010] NSWCC 1201
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: CEV (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Douglas-Baker (Respondent)
Solicitors:
CEV (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510631
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for Decision

Introduction

The applicant, who will be referred to as CEV, requires a working with children check clearance to continue working as a bus driver.
The applicant was previously cleared to work with children in 2012. When he reapplied for a working with children check clearance in 2014, the Children’s Guardian, who is the respondent in this matter, conducted a risk assessment for him.
Following the completion of the risk assessment, which considered allegations of sexual and physical abuse against the applicant, the Children’s Guardian made a decision on 24 August 2015 to refuse to grant him a working with children check clearance.
CEV’s application for review was lodged within time and there is no dispute that the Tribunal has jurisdiction to hear and determine the application.
The decision of the Children’s Guardian to refuse the applicant a working with children check clearance was stayed on 7 December 2015.

Legal principles

The Child Protection (Working with Children) Act 2012 (‘the Act’) provides that a worker…

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 CEV v Children's Guardian

Details

AGLC: CEV v Children's Guardian [2017] NSWCATAD 10
Case: [2017] NSWCATAD 10
Decision Date: 13 January 2017

CaseChat Overview and Summary

The matter between CEV and the Children's Guardian involved a dispute over the granting of a working with children check clearance to the applicant. The case was heard in the Supreme Court of Queensland. The applicant sought a review of the Children's Guardian's decision to refuse the clearance, citing the absence of certain evidence and procedural fairness concerns.

The court was required to decide whether the decision to refuse the clearance was legally sound. Key issues included the weight of the evidence presented against the applicant, the absence of witness statements, and the inability to test the evidence due to the unavailability of the trial transcript. The court had to balance the applicant's right to procedural fairness against the Children's Guardian's discretion in making findings based on the evidence available.

The court found that the evidence presented was insufficient to justify the refusal of the clearance, primarily due to the inability to test the evidence effectively. The absence of witness statements and the unavailability of the trial transcript significantly impaired the applicant's ability to respond to the allegations. The court held that the Children's Guardian's decision was not based on a fair assessment of the available evidence and that there was no presumption of risk warranting the refusal of the clearance. Consequently, the decision to set aside the refusal of the clearance and grant the applicant a working with children check clearance was upheld.

The court ordered that the decision of the Children's Guardian dated 24 August 2015 to refuse the applicant a working with children check clearance be set aside, and in its place, the applicant be granted a working with children check clearance. This ruling underscores the importance of procedural fairness and the adequacy of evidence in making decisions affecting an individual's professional eligibility.

Orders

Orders of the court

(1) The decision of the Children's Guardian dated 24 August 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	CEV v Children’s Guardian [2017] NSWCATAD 10
Hearing dates:	21 September 2016
Date of orders:	13 January 2017
Decision date:	13 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member R Royer, General Member
Decision:	(1) The decision of the Children's Guardian dated 24 August 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 – Findings in respect of criminal allegations – Evidence – Inability to test evidence – Absence of witness statements – Absence of trial transcript - Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 Children’s Guardian v BRL [2016] NSWSC 1206 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 FZ v Commissioner for Children and Young People [2010] NSWCC 1201 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CEV (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent) Solicitors: CEV (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510631
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.