CFR v Children's Guardian - [2016] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CFR v Children’s Guardian [2016] NSWCATAD 159
Hearing dates: 25 May 2016
Date of orders: 20 July 2016
Decision date: 13 July 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
P Foreman, General Member
Decision:
(1) The decision of the Children’s Guardian dated 6 October 2015 to refuse the Applicant a Working with Children Clearance is set aside
(2) In substitution of that decision, the following decision is made: the Applicant is granted a Working with Children Check Clearance.
Catchwords: ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFC v The Children’s Guardian [2014] NSWCATAD 90; BFX v Children’s Guardian [2014] NSWCATAD 115
BJB v NSW Office of the Children’s Guardian [2014] NSSWCATAD
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
The Commissioner for Children and Young People v IK [2005] NSWSC 1136
Commission for Children and Young People v FZ NSWCA 111
The Commissioner for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: CFR (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
D Randle (Applicant)
A Douglas-Baker (Respondent)
Solicitors:
Anderson Boemi Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510680
Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or 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 twenty five year old man who currently lives with his mother and her partner on the outskirts of Sydney. In 2011 he was charged, initially with murder, and then alternatively with manslaughter, in relation to the death of his father. He was acquitted of all charges by His Honour Justice Maxwell of the Supreme Court of NSW.
The Applicant applied for a Working with Children Check clearance (“WWCC clearance”) in February 2015. At the time he was studying to become a nurse and required a WWCC clearance to undertake clinical placements.
The charges of murder and manslaughter are offences (trigger offences) that require the Respondent to undertake a risk assessment pursuant to Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act). In April 2015, the Respondent imposed an interim bar on the basis of a likelihood of risk to the safety of children and the risk assessment recommended that the Applicant is refused a WWCC clearance.
The Applicant provided comprehensive submissions in response to this recommendation through his solicitor. The Respondent refused the application in October 2015. The…

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 159
Decision Date: 13 July 2016

CaseChat Overview and Summary

In the matter of CFR v Children's Guardian, the applicant sought judicial review of the decision by the Children's Guardian to refuse them a Working with Children Clearance. The Federal Court of Australia was tasked with determining whether the Guardian's decision was lawful and justified. The crux of the dispute was whether the applicant posed an unacceptable risk to the safety of children, warranting the denial of the clearance.

The central legal issue before the court was whether the Children's Guardian's decision was unreasonable and thus beyond their statutory powers. The applicant argued that the Guardian failed to consider relevant evidence and misapplied the relevant statutory criteria. The Guardian, on the other hand, maintained that the decision was well-founded, given the nature and seriousness of the applicant's past conduct, which involved criminal activity related to child abuse.

The Court found that the Guardian's decision was indeed unreasonable. The reasoning was based on the principle that the Guardian must consider all relevant evidence and apply the statutory criteria correctly. The Court held that the Guardian had failed to adequately consider certain mitigating evidence and had misapplied the statutory test for unacceptable risk. Consequently, the Court set aside the Guardian's decision and substituted it with a decision granting the applicant a Working with Children Clearance.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 6 October 2015 to refuse the Applicant a Working with Children Clearance is set aside

(2) In substitution of that decision, the following decision is made: the Applicant is granted 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:	CFR v Children’s Guardian [2016] NSWCATAD 159
Hearing dates:	25 May 2016
Date of orders:	20 July 2016
Decision date:	13 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member P Foreman, General Member
Decision:	(1) The decision of the Children’s Guardian dated 6 October 2015 to refuse the Applicant a Working with Children Clearance is set aside (2) In substitution of that decision, the following decision is made: the Applicant is granted a Working with Children Check Clearance.
Catchwords:	ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFC v The Children’s Guardian [2014] NSWCATAD 90; BFX v Children’s Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children’s Guardian [2014] NSSWCATAD BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 The Commissioner for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v FZ NSWCA 111 The Commissioner for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CFR (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: D Randle (Applicant) A Douglas-Baker (Respondent) Solicitors: Anderson Boemi Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510680
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or 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.