CFS v Children's Guardian - [2016] NSWCATAD 224

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CFS v Children’s Guardian [2016] NSWCATAD 224
Hearing dates: 5 May 2016
Date of orders: 10 October 2016
Decision date: 10 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
B Field, General Member
D Kelleghan, General Member
Decision:
(1) The applicant's application for an enabling order is refused.

Catchwords: CHILD Protection – Working with Children – Risk – Whether risk real and appreciable – Serious offence – Factors subsequent to offence – Mitigating factors arising – Enabling order – Discharge of onus – Whether evidence establishes risk – Expert evidence – Limitation on evidence – Limitations of evidence of applicant.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Evidence Act 1995 (NSW)
Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111
CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
R v Commission for Children and Young People [2002] NSWIR Comm 101
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
ADV v Commission for Children and Young People [2012] NSWADT 8
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
M v M [1988] HCA 68; 166 CLR 59
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2
Category: Principal judgment
Parties: CFS (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
C McGorey (Applicant)
I Fraser (Respondent)
Solicitors:
Dignan & Hanrahan Solicitors (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510683
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

The applicant in these proceedings is referred to as "CFS". CFS is the applicant's pseudonym used in these proceedings.
On 30 October 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for a working with children clearance. The applicant seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act'), should be issued by the Tribunal.
On 5 November 2015 an…

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 224
Decision Date: 10 October 2016

CaseChat Overview and Summary

The case of CFS v Children's Guardian involved the Children and Family Services (CFS) and the Children's Guardian, with the dispute centred on whether the CFS had successfully discharged the onus of proving that the risk of harm to children was real and appreciable. This was to determine if an enabling order should be granted under the Working with Children (Risk Management and Screening) Act. The matter was heard in the Children's Court of New South Wales.

The primary legal issue before the court was whether the evidence presented by the CFS adequately established the risk of harm to children and whether the Children's Guardian had demonstrated that such risk was not real and appreciable. The court had to consider the weight and admissibility of the evidence, including expert testimony and the limitations of the evidence provided by both parties. The court also had to assess the mitigating factors and subsequent events that occurred after the alleged offence.

In determining the application, the court held that the CFS had not discharged the onus of proving that the risk of harm to children was real and appreciable. The court found that the evidence presented had limitations and did not sufficiently establish the required risk. The court emphasised the importance of expert evidence in assessing risk and noted that the evidence provided by the CFS had significant limitations. The court concluded that the onus had not been met, and the application for an enabling order was therefore refused.

The court's decision resulted in the refusal of the CFS's application for an enabling order under the Working with Children (Risk Management and Screening) Act. The Children's Guardian's argument that the risk was not real and appreciable was upheld, and the evidence provided by the CFS was deemed insufficient to meet the required standard.

Orders

Orders of the court

(1) The applicant's application for an enabling order is refused.

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:	CFS v Children’s Guardian [2016] NSWCATAD 224
Hearing dates:	5 May 2016
Date of orders:	10 October 2016
Decision date:	10 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member B Field, General Member D Kelleghan, General Member
Decision:	(1) The applicant's application for an enabling order is refused.
Catchwords:	CHILD Protection – Working with Children – Risk – Whether risk real and appreciable – Serious offence – Factors subsequent to offence – Mitigating factors arising – Enabling order – Discharge of onus – Whether evidence establishes risk – Expert evidence – Limitation on evidence – Limitations of evidence of applicant.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Evidence Act 1995 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 M v M [1988] HCA 68; 166 CLR 59 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2
Category:	Principal judgment
Parties:	CFS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C McGorey (Applicant) I Fraser (Respondent) Solicitors: Dignan & Hanrahan Solicitors (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510683
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.