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CGN v Children's Guardian

CGN v Children's Guardian

Case [2016] NSWCATAD 138 6 July 2016

Jurisdiction

Risk Assessment

Working with Children Clearance

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CGN v Children’s Guardian [2016] NSWCATAD 138
Hearing dates: 6 May 2016
Date of orders: 06 July 2016
Decision date: 06 July 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
S Davison, General Member
Decision:
(1) The decision of the Respondent to refuse a Working with Children Clearance is set aside.
(2) 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)
Crimes (Sentencing Procedure) Act 1986
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 NSW
Family Law Act 1975 (Cth)
Cases Cited: BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
BQE v Children’s Guardian
[2015] NSWCATAD 89
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
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 (no 2) 2014 NSWCAT 164
Brigenshaw v Brigenshaw (1938) 60 CLR 336
Neat Holding Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Category: Principal judgment
Parties: CGN (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Neville (Respondent)
Solicitors:
Santone Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510717
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 referred to as “CGN” is a single 66 year old man born in the former Yugoslavia. He married in 1971 and migrated to Australia with his wife in 1973. They had one child, a son born in 1990. He and his wife separated in 2001 and the Applicant has not seen his wife or son since then.
The Applicant was working as a bus driver for a private company from September 1981 and, in July 2014, was asked by his employer to obtain a Working with Children Check (WWCC) clearance in order to comply with the relevant legislative requirements. He made this application to the Respondent on 3 July 2015 and was permitted to continue working while his application was being processed. Section 14 and 15 of the Child Protection (Working with Children) Act 2012 (the Act) provide that an applicant for a WWCC clearance is subject to a risk assessment requirement if any matters specified in Schedule 1 of the Act apply to 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.

Continue reading CGN v Children's Guardian

Details

AGLC: CGN v Children's Guardian [2016] NSWCATAD 138
Case: [2016] NSWCATAD 138
Decision Date: 06 July 2016

CaseChat Overview and Summary

The case of CGN v Children's Guardian involved an applicant seeking a Working with Children Clearance, which was refused by the Children's Guardian. The applicant sought judicial review of this decision, arguing that the refusal was unreasonable and based on an incorrect assessment of the risk posed by the applicant to children's safety. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the Children's Guardian had correctly assessed the risk posed by the applicant to children's safety and if the decision to refuse the clearance was justified. The court had to examine whether the decision was made in accordance with the relevant statutory provisions and whether it was based on relevant and sufficient evidence. Additionally, the court considered whether the decision was unreasonable in the sense of being irrational or lacking in evidentiary basis.

The court found that the Children's Guardian's assessment of the risk was not supported by the evidence and was, therefore, unreasonable. The applicant demonstrated that there was no valid basis for the assessment of risk, and the decision to refuse the clearance was not justified. The court set aside the decision of the Children's Guardian and granted the applicant a Working with Children Check clearance. The decision underscored the importance of a proper and evidence-based assessment when making determinations that impact an individual's ability to work with children.

Orders

Orders of the court

(1) The decision of the Respondent to refuse a Working with Children Clearance is set aside.

(2) 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

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Citations

AGLC Citation

CGN v Children's Guardian [2016] NSWCATAD 138

Most Recent Citation

CHI v Children's Guardian (No 2) [2016] NSWCATAD 272

Cases citing this decision · 2 of 2 shown

DGF v Children's Guardian
[2018] NSWCATAD 286

…v Children’s Guardian [2016] NSWCATAD 17 CFK v Office of the Children’s Guardian [2017] NSWSC 460 CGN v Children’s Guardian [2016] NSWCATAD 138 CHB v Children’s Guardian [2016] NSWCATAD 2124 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CVE [2017] NSWSC 134…
CHI v Children's Guardian (No 2)
[2016] NSWCATAD 272 Para 36

…d “application” in cl 19(1) should not be construed as having the same meaning as it was construed by the Tribunal in CGN v Children’s Guardian [2016] NSWCATAD 138: see at [8] and [9]. At [9] the Tribunal said it “[f]ound that the transitional provisions contained in Schedule 3 have the effect that the amendments do n…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 13

…The word “risk” in the Act is construed to mean a risk that is “real and appreciable”. In BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word “risk” in t…
BQE v Children's Guardian
[2015] NSWCATAD 89 Para 88

…tive of the matter but it does reduce the weight that can be placed on these allegations as an indication of future risk: BQE v Children’s Guardian [2015] NSWCATAD 89. The third charge of common assault did not proceed to a trial. In relation to all three complaints, seen separately and together, the Tribunal was una…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 14

…Children’s Guardian [2014] NSWCATAD 90; BFX v Children’s Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164.…
BFX v Children's Guardian
[2014] NSWCATAD 115 Para 14

…sk: 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 and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164.…
BFC v The Children's Guardian
[2014] NSWCATAD 90 Para 14

…The Tribunal has followed this meaning of risk: 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 and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164.…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 14

…The Tribunal has followed this meaning of risk: 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 and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164.…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 15

…The Tribunal’s jurisdiction under the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The Applicant must also fully disclose to the Tribunal any matters relevant to his application for a WWCC: section 28 (5) of the Act.…
The Commissioner for Children and Young People v IK
[2005] NSWSC 1136

…hildren’s Guardian & Anor [2015] NSWSC 523 BQE v Children’s Guardian [2015] NSWCATAD 89 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 AYU v NSW Office of the Children’s…
Commission for Young People v V
[2002] NSWSC 949 Para 13

…Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word “risk” in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW):…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCATrans 297 Para 20

…e flexibility of decision making when applying the balance of probabilities test. This was affirmed by Neat Holding Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 where the High Court said “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to…
Briginshaw v Briginshaw
[1938] HCA 34 Para 20

…etermining whether the Applicant poses a risk to the safety of children is on the balance or probabilities. The High Court in Brigenshaw v Brigenshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test. This was affirmed by Neat Holding Pty…

Legislation cited in this decision · 7

Family Law Act 1975 (Cth)
60 3 mentions (from Para 11)
Administrative Decisions Review Act 1997 (NSW)
63 2 mentions (from Para 7)
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 13)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 6)
Crimes (Sentencing Procedure) Act 1986 (NSW)
1 mention (from Para 53)
Evidence Act 1995 (Cth)
1 mention (from Para 20)

Medium Neutral Citation:	CGN v Children’s Guardian [2016] NSWCATAD 138
Hearing dates:	6 May 2016
Date of orders:	06 July 2016
Decision date:	06 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member S Davison, General Member
Decision:	(1) The decision of the Respondent to refuse a Working with Children Clearance is set aside. (2) 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) Crimes (Sentencing Procedure) Act 1986 Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 NSW Family Law Act 1975 (Cth)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BQE v Children’s Guardian [2015] NSWCATAD 89 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 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 (no 2) 2014 NSWCAT 164 Brigenshaw v Brigenshaw (1938) 60 CLR 336 Neat Holding Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Category:	Principal judgment
Parties:	CGN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Neville (Respondent) Solicitors: Santone Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510717
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.