CFJ v Children's Guardian (No 3)

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CFJ v Children’s Guardian (No 3) [2022] NSWCATAD 124
Hearing dates: 10 March 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
M Bolt, General Member
Decision:

The decision of the Children’s Guardian dated 8 October 2021 to refuse to grant the applicant a working with children check clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — risk assessment by respondent due to notification of concern from the NSW Ombudsman — whether the applicant poses a risk to the safety of children — the correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012

Young Persons (Care and Protection) Act 1998 (NSW)

Children’s Guardian Act 2019 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Criminal Code Act 1995 (Cth)

Ombudsman Act 1974 (NSW)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014]

BFX v Children’s Guardian [2014] NSWCATAD 115

BGX v Children’s Guardian [2014] NSWCATAD 173

BHY v Children’s Guardian [2015] NSWCATAD 91

BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164

BKE v Office of Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw (1938) 60 CLR 336

CFJ v Children’s Guardian [2016] NSWCATAD 62

CFJ v Office of the Children’s Guardian [2016] NSWSC 1625

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v CKF [2017] NSWSC 893

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v V [2002] NSWSC 949

Commissioner for Children and Young People v IK [2005] NSESC 1136

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60

DYH v Public Guardian [2021] NSWCATAD 136

ECJ v Children’s Guardian [2020] NSWCATAD 28

EMF v Cessnock City Council [2021] NSWCATAP 234

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162

McDonald v Guardianship and Administration Board [1993] VR 521

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2 ) (1981) 3 ALD 88

Smith v Commissioner of Police [2014] NSWCATAD 184

The Commissioner for Children and Young People v IK [2005] NSWSC 1136

Tilley v Children’s Guardian [2017] NSWCA 174

VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789

YG & GG v Minister for Community Services [2002] NSWCA 247

ZZ v Secretary, Department of Justice [2013] VSC 267

Category:Principal judgment
Parties: CFJ (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
A Douglas-Baker (Respondent)

Solicitors:
Self-represented (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2021/230443
Publication…
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Details
Case
[2022] NSWCATAD 124
Decision Date

CaseChat Overview and Summary

The case of CFJ v Children's Guardian (No 3) involved an application for review by CFJ, seeking to challenge the decision of the Children's Guardian to deny them a working with children check clearance. This decision was based on a risk assessment conducted due to a notification from the NSW Ombudsman. The dispute centred on whether CFJ posed a risk to the safety of children, thereby justifying the denial of the clearance. The case was heard in the relevant court, which was tasked with determining whether the Children's Guardian's decision was legally sound.

The primary legal issues before the court were whether the decision of the Children's Guardian was the correct and preferable decision under the relevant legislation and whether the Guardian had correctly exercised their discretion in assessing the risk posed by CFJ. The court had to consider the statutory framework, including the Child Protection (Working with Children) Act 2012, and whether the Guardian's decision was supported by appropriate evidence and reasoning.

In its reasoning, the court examined the statutory provisions and the evidence upon which the Guardian based the risk assessment. The court found that the Guardian had acted within their legal authority and had made a decision that was both reasonable and proportionate to the potential risk. The evidence provided, including the notification from the NSW Ombudsman, was deemed sufficient to support the Guardian's assessment. Consequently, the court affirmed the decision of the Children's Guardian, holding that it was the correct and preferable decision.

The final orders of the court were to affirm the decision of the Children's Guardian dated 8 October 2021, which refused to grant CFJ a working with children check clearance. This decision was based on the court's determination that the Guardian's assessment was legally sound and appropriately exercised under the statutory framework.

Orders

Orders of the court

The decision of the Children’s Guardian dated 8 October 2021 to refuse to grant the applicant a working with children check clearance is affirmed.

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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