Cfe v Children's Guardian - [2016] NSWCATAD 135

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CFE v Children’s Guardian [2016] NSWCATAD 135
Hearing dates: 4 March 2016
Date of orders: 05 July 2016
Decision date: 05 July 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
P Foreman, General Member
Decision:
(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 2013 of the offence of filming person’s private parts without consent contrary to s91L of the Crimes Act 1900.
(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords: ADMINISTRATIVE LAW – child protection – enabling order – working with children check clearance – disqualified person – disqualifying offence was a conviction in 2013 for filming person’s private parts without consent – s91L of the Crimes Act 1900 –whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus discharged.
Legislation Cited: Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Cases Cited: BGX v Children's Guardian [2014] NSWCATAD 173
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Category: Principal judgment
Parties: CFE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
I Fraser (Respondent)
Solicitors:
NEW Law Pty Ltd (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510650
Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim of child referred to in the material before the Tribunal is prohibited. Note: 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

Introduction

The applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a ‘disqualified person’ for the purpose of the Act. The order is known as an ‘enabling order’ and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.
The offence which brings the applicant within subsection 18(1) of the Act is that of filming a person’s private parts without consent under s91L(1) of the Crimes Act 1900. This offence is a disqualifying offence falling within Schedule 2 of the Act. The applicant pleaded guilty to the offence on 2 July 2013 and was directed…

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 135
Decision Date: 05 July 2016

CaseChat Overview and Summary

The case involved the applicant, Cfe, and the Children's Guardian, with the matter being heard in the Administrative Appeals Tribunal. The central issue was whether the applicant, who had a conviction in 2013 for filming a person’s private parts without consent under section 91L of the Crimes Act 1900, qualified as a disqualified person under the Child Protection (Working with Children) Act 2012. This status would prevent him from obtaining a working with children check clearance, which is necessary for engaging in specified work with children. The applicant argued that he should not be treated as a disqualified person due to this conviction.

The court needed to determine whether the applicant had successfully discharged the onus of rebutting the statutory presumption that he posed a risk to the safety of children. This involved examining the nature of the disqualifying offence and the specific circumstances surrounding the conviction. The court had to consider whether the offence, as well as the applicant's conduct and circumstances since the conviction, warranted a finding that he did not pose a risk to children.

In reaching its decision, the court found that the applicant had successfully discharged the onus of rebutting the presumption that he posed a risk to the safety of children. The court concluded that the conviction, while serious, did not necessarily indicate that the applicant currently posed a risk to children. The evidence presented by the applicant, including his conduct and circumstances since the conviction, supported this conclusion. Therefore, the court declared that the applicant was not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. As a result, the Children's Guardian was ordered to grant the applicant a working with children check clearance.

Orders

Orders of the court

(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 2013 of the offence of filming person’s private parts without consent contrary to s91L of the Crimes Act 1900.

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant 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:	CFE v Children’s Guardian [2016] NSWCATAD 135
Hearing dates:	4 March 2016
Date of orders:	05 July 2016
Decision date:	05 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member P Foreman, General Member
Decision:	(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 2013 of the offence of filming person’s private parts without consent contrary to s91L of the Crimes Act 1900. (2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order – working with children check clearance – disqualified person – disqualifying offence was a conviction in 2013 for filming person’s private parts without consent – s91L of the Crimes Act 1900 –whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus discharged.
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	BGX v Children's Guardian [2014] NSWCATAD 173 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Category:	Principal judgment
Parties:	CFE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent) Solicitors: NEW Law Pty Ltd (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510650
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim of child referred to in the material before the Tribunal is prohibited. Note: 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.