Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: CFK v Children's Guardian [2016] NSWCATAD 140 Hearing dates: 15 April 2016 Date of orders: 06 July 2016 Decision date: 06 July 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 23 September 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.
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 – assessment trigger by clause 1(1)(b) of Schedule 1 to the Child Protection (Working with Children) Act 2012- charges under section 61P and section 61I of the Crimes Act 1900 (NSW)- on appeal to the Court of Criminal Appeal the conviction and sentence in the District Court was quashed and a verdict of acquittal entered - whether the applicant poses a risk to the safety of children - 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 a working with children check 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)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (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 [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People…
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- AGLC
- CFK v Children's Guardian [2016] NSWCATAD 140
- Case
- [2016] NSWCATAD 140
- Decision Date
CaseChat Overview and Summary
The case of CFK v Children’s Guardian involved an appeal against the refusal to grant a working with children check clearance to the applicant. The applicant, CFK, sought review of the decision made by the Children’s Guardian under section 27 of the Child Protection (Working with Children) Act 2012. The Guardian had refused the clearance based on the applicant’s past criminal charges and convictions, which were under section 61P and section 61I of the Crimes Act 1900 (NSW). These charges and convictions were later quashed on appeal to the Court of Criminal Appeal, resulting in an acquittal. Despite this, the Guardian maintained that CFK posed a risk to the safety and well-being of children, warranting the refusal of the clearance. The applicant challenged this decision, arguing that the Guardian’s refusal was not the correct or preferable decision given the acquittal.
The central legal issues the court had to address were whether the Children’s Guardian’s decision to refuse the working with children check clearance was correct and preferable, and whether the Guardian had the onus of proof in such a review. Additionally, the court had to determine if the Guardian’s decision was justified by a real and appreciable risk that CFK posed to children, despite the acquittal from the criminal charges. The court also needed to balance the paramount concern of protecting children from abuse against the applicant’s right to be considered for the clearance.
In its reasoning, the court held that the onus of proof in a review under section 27 of the Act was on the applicant to show that the decision of the Guardian was not the correct and preferable one. The court found that the Guardian’s decision was based on a thorough assessment of the applicant’s past conduct and the potential risk to children, even though the criminal charges had been quashed. The court emphasised that the paramount concern in such matters was the protection of children from abuse, and the Guardian’s decision was aimed at fulfilling this paramount concern. The court concluded that the Guardian’s decision to refuse the clearance was correct and preferable, given the material before the Tribunal, and affirmed the Guardian’s decision.
The central legal issues the court had to address were whether the Children’s Guardian’s decision to refuse the working with children check clearance was correct and preferable, and whether the Guardian had the onus of proof in such a review. Additionally, the court had to determine if the Guardian’s decision was justified by a real and appreciable risk that CFK posed to children, despite the acquittal from the criminal charges. The court also needed to balance the paramount concern of protecting children from abuse against the applicant’s right to be considered for the clearance.
In its reasoning, the court held that the onus of proof in a review under section 27 of the Act was on the applicant to show that the decision of the Guardian was not the correct and preferable one. The court found that the Guardian’s decision was based on a thorough assessment of the applicant’s past conduct and the potential risk to children, even though the criminal charges had been quashed. The court emphasised that the paramount concern in such matters was the protection of children from abuse, and the Guardian’s decision was aimed at fulfilling this paramount concern. The court concluded that the Guardian’s decision to refuse the clearance was correct and preferable, given the material before the Tribunal, and affirmed the Guardian’s decision.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 23 September 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 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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