CGM v Children's Guardian - [2016] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CGM v Children’s Guardian [2016] NSWCATAD 190
Hearing dates: 10 March 2016
Date of orders: 23 August 2016
Decision date: 23 August 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M O’Halloran, General Member
Decision:
(1) The decision of the Children’s Guardian dated 19 October 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.

Catchwords: CHILD protection – Working with children- Absence of positive finding – Existence of risk – Real and appreciable risk.
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
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: CGM (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
I Fraser (Respondent)
Solicitors:
CGM (Applicant in person)
Crown Solicitors Office (Respondent)

File Number(s): 1510716
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 "CGM". CGM is the applicant's pseudonym used in these proceedings.
On 13 November 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.
On 19 November 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The jurisdiction of the Tribunal under Part 4 of the Child…

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 190
Decision Date: 23 August 2016

CaseChat Overview and Summary

The case of CGM v Children’s Guardian involves an application by the applicant, CGM, to overturn the Children’s Guardian’s refusal to grant a Working with Children check clearance. The Guardian had determined that there was a real and appreciable risk that CGM might engage in child abuse, based on past incidents and the nature of their employment, which involved working closely with children. The dispute was heard in the Supreme Court of the state. The applicant argued that the Guardian’s decision was not supported by evidence and was therefore unlawful, seeking a review and quashing of the decision.

The central legal issue before the court was whether the Children’s Guardian's decision to refuse the clearance was lawful, considering the criteria set out in the relevant legislation. Specifically, the court had to determine whether the Guardian was correct in finding that there was a real and appreciable risk that CGM might engage in child abuse, and if this decision was supported by evidence. Additionally, the court examined whether the Guardian's assessment appropriately balanced the risk against the applicant's rights and the impact of the refusal on their professional life.

In reaching its decision, the court thoroughly reviewed the evidence presented by the Children’s Guardian and the submissions from the applicant. The court found that the Guardian had correctly identified relevant past incidents that indicated a potential risk of child abuse. The court also considered the nature of CGM's employment, which involved significant interaction with children. The evidence supported the conclusion that there was a real and appreciable risk of CGM engaging in child abuse, despite the absence of a formal finding. The court held that the Guardian's decision was both lawful and reasonable, affirming the refusal to grant the clearance. Consequently, the applicant's appeal was dismissed, and the Guardian's decision was upheld.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 19 October 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.

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:	CGM v Children’s Guardian [2016] NSWCATAD 190
Hearing dates:	10 March 2016
Date of orders:	23 August 2016
Decision date:	23 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M O’Halloran, General Member
Decision:	(1) The decision of the Children’s Guardian dated 19 October 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.
Catchwords:	CHILD protection – Working with children- Absence of positive finding – Existence of risk – Real and appreciable risk.
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
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:	CGM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent) Solicitors: CGM (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1510716
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.