CGP v Children's Guardian

Case [2017] NSWCATAD 12


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CGP v Children's Guardian [2017] NSWCATAD 12
Hearing dates: 8 September 2016
Date of orders: 10 January 2017
Decision date: 10 January 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
E Hayes, General Member
Decision:

(1) The decision of the Children’s Guardian dated19 October 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is set aside.
(2) The applicant CGP shall be granted a Working with Children Check clearance by the Children’s Guardian within 28 days of the date of these orders.
(3) 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.

Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – assessment trigger by clause 1(6) of Schedule 1 to the Child Protection (Working with Children) Act 2012 - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is not posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse - the correct and preferable decision is to grant a working with children check clearance.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995 (NSW)
Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BGX v Children's Guardian [2014] NSWCATAD 173
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BKV v Children’s Guardian [2015] NSWSC 1602
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
BVT v Office of the Children’s Guardian [2016] NSWSC 1169
BYR v Children’s Guardian [2013] NSWADT 310
BZU…

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AGLC
CGP v Children's Guardian [2017] NSWCATAD 12
Case
[2017] NSWCATAD 12
Decision Date

CaseChat Overview and Summary

The case before the court involved the applicant, CGP, contesting the decision of the Children's Guardian to refuse them a Working with Children Check clearance. The crux of the dispute was whether the applicant posed a risk to the safety of children, which was pivotal in the context of the Child Protection (Working with Children) Act 2012. The matter was adjudicated in the relevant court which conducted a review under section 27 of the Act, examining the decision-making process and the evidence upon which the refusal was based.

The primary legal issues that the court had to determine were the criteria for refusal under the Act, specifically clause 1(6) of Schedule 1, and the standard of proof required in such reviews. The court examined whether the refusal was the correct and preferable decision, given the evidence presented, and whether the onus of proof was adequately discharged by the Children's Guardian. Additionally, the court had to assess whether the applicant posed a real and appreciable risk to the safety, welfare, and well-being of children, a consideration fundamental to the paramount concern of protecting children from abuse.

In reaching its decision, the court meticulously evaluated the evidence and concluded that the applicant did not pose a real and appreciable risk to children. The court found that the decision to refuse the clearance was not the correct and preferable decision, as the applicant's risk to children's safety was not substantiated by the material before the Tribunal. The court's analysis underscored the importance of safeguarding children but also emphasised the necessity for evidence to support any decision that could prevent someone from working with children.

The final orders of the court mandated the setting aside of the Children's Guardian's decision dated 19 October 2015 and directed that the applicant be granted a Working with Children Check clearance within 28 days. Furthermore, the court imposed a prohibition on the disclosure of the applicant's name and the names of any alleged victims or children mentioned in the proceedings to maintain confidentiality and protect privacy.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated19 October 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is set aside.

(2) The applicant CGP shall be granted a Working with Children Check clearance by the Children’s Guardian within 28 days of the date of these orders.

(3) 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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