Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CFJ v Children's Guardian [2016] NSWCATAD 62 Hearing dates: 21 January 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member
D Kelleghan, General MemberDecision: 1) The decision of the Children’s Guardian dated 16 October 2015 to cancel the applicant’s Working with Children Check clearance under section 23 Child Protection (Working with Children) Act 2012 is affirmed.
2) The application for review of the decision of the Children's Guardian filed 22 October 2015 is otherwise refused and dismissed.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 – cancellation of clearance under section 23 Child Protection (Working with Children) Act 2012-assessment trigger by notification of concern by Ombudsman under clause 2A of Schedule 1 to the Child Protection (Working with Children) Act 2012- whether the applicant poses a risk to the safety of children - dismissal from employment as a High School teacher- subsequent wrongful dismissal proceedings settled - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to allow the applicant to hold a working with children clearance. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
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)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)
Ombudsman Act 1974 (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
BGX v Children's Guardian [2014] NSWCATAD 173
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
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Details
- AGLC
- CFJ v Children's Guardian [2016] NSWCATAD 62
- Case
- [2016] NSWCATAD 62
- Decision Date
CaseChat Overview and Summary
CFJ challenged the decision of the Children's Guardian to cancel their Working with Children Check clearance, a statutory requirement for those working with children. The Guardian had cancelled the clearance following CFJ's dismissal from their employment as a High School teacher. CFJ's wrongful dismissal proceedings were settled but did not address the clearance issue. The court examined whether the Guardian's decision was legally sound and whether CFJ posed a risk to children, given the paramount importance of protecting children from harm.
The primary legal issues involved the scope of the review under section 27 of the Child Protection (Working with Children) Act 2012, the burden of proof, and the interpretation of 'real and appreciable risk'. CFJ argued that the Guardian had not properly assessed the risk they posed to children. The court had to determine whether the Guardian's decision was correct and preferable, considering the evidence available at the time.
The court concluded that the Guardian's decision was legally sound and upheld it. The Guardian's role in assessing and mitigating risks to children's safety was critical, and the court found that the Guardian had adequately considered the relevant factors. The onus was on CFJ to prove that the Guardian's decision was flawed, a burden CFJ did not meet. The court held that CFJ's past conduct justified a real and appreciable risk to children, supporting the Guardian's decision.
The court's orders affirmed the Children's Guardian's decision to cancel CFJ's Working with Children Check clearance. The application for review was refused and dismissed. This decision underscored the importance of protecting children from potential harm, even in the absence of recent misconduct, and highlighted the limited scope of judicial review in such cases.
The primary legal issues involved the scope of the review under section 27 of the Child Protection (Working with Children) Act 2012, the burden of proof, and the interpretation of 'real and appreciable risk'. CFJ argued that the Guardian had not properly assessed the risk they posed to children. The court had to determine whether the Guardian's decision was correct and preferable, considering the evidence available at the time.
The court concluded that the Guardian's decision was legally sound and upheld it. The Guardian's role in assessing and mitigating risks to children's safety was critical, and the court found that the Guardian had adequately considered the relevant factors. The onus was on CFJ to prove that the Guardian's decision was flawed, a burden CFJ did not meet. The court held that CFJ's past conduct justified a real and appreciable risk to children, supporting the Guardian's decision.
The court's orders affirmed the Children's Guardian's decision to cancel CFJ's Working with Children Check clearance. The application for review was refused and dismissed. This decision underscored the importance of protecting children from potential harm, even in the absence of recent misconduct, and highlighted the limited scope of judicial review in such cases.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 16 October 2015 to cancel the applicant’s Working with Children Check clearance under section 23 Child Protection (Working with Children) Act 2012 is affirmed.
2) The application for review of the decision of the Children's Guardian filed 22 October 2015 is otherwise refused and dismissed.
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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