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 MemberDecision: 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:
Solicitors:
A Douglas-Baker (Respondent)
Self-represented (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2021/230443 Publication…
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- Case
- [2022] NSWCATAD 124
- Decision Date
CaseChat Overview and Summary
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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