CGO v Children's Guardian - [2016] NSWCATAD 200

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CGO v Children’s Guardian [2016] NSWCATAD 200
Hearing dates: 23 March 2016
Date of orders: 02 September 2016
Decision date: 02 September 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Royer, 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
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
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
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
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Category: Principal judgment
Parties: CGO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
C Coleman (Applicant)
C McGorey (Respondent)
Solicitors:
Tsintilas and Associates (Applicant)
Crown Solicitors Office (Respondent)

File Number(s): 1510718
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

The Applicant in these proceedings is referred to as "CGO". CGO 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 23 December 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of…

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.

Keep reading for free

Create a free CaseChat account to read CGO v Children's Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWCATAD 200
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case of CGO v Children's Guardian concerns the application of the applicant, CGO, for a Working with Children check clearance. CGO sought the clearance to continue their employment in a role requiring regular interaction with children. The Children's Guardian refused the clearance on 19 October 2015, prompting CGO to challenge this decision in court. The dispute was heard and determined by the court, which was tasked with reviewing the Guardian's decision to deny the clearance.

The primary legal issue before the court was whether the Guardian's refusal to grant CGO a Working with Children check clearance was justified. The court had to determine if there was a real and appreciable risk that CGO would engage in child-related work in a way that might harm a child. This involved assessing the evidence presented by the Guardian and CGO and evaluating whether the Guardian's decision was reasonable, lawful, and supported by the evidence. The court needed to weigh the statutory obligations and considerations under which the Guardian operates against the rights and circumstances of the applicant.

In reaching its decision, the court found that the Guardian's assessment was thorough and based on credible evidence. The Guardian had identified specific concerns about CGO's past conduct and potential risk to children, which were deemed sufficient to warrant a refusal of clearance. The court concluded that the Guardian's decision was reasonable and lawful, as it was based on a real and appreciable risk to the welfare of children. Consequently, the court affirmed the Guardian's decision, upholding the refusal to grant CGO a Working with Children check clearance. This outcome ensures that the Guardian's authority to protect children is upheld and that potential risks are adequately managed within the scope of the statutory framework.

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:	CGO v Children’s Guardian [2016] NSWCATAD 200
Hearing dates:	23 March 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Royer, 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 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 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 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 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Category:	Principal judgment
Parties:	CGO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C Coleman (Applicant) C McGorey (Respondent) Solicitors: Tsintilas and Associates (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510718
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.