CGS v Children's Guardian - [2016] NSWCATAD 228

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CGS v Children’s Guardian [2016] NSWCATAD 228
Hearing dates: 11 May 2016
Date of orders: 12 October 2016
Decision date: 12 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
R Royer, General Member
Decision:
The applicant’s application for an enabling order is dismissed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of three counts of indecent assault – whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged – definition of child-related work.
Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Crimes Act 1900 (NSW)
Cases Cited: BGX v Children's Guardian [2014] NSWCATAD 173
BKE v Office of Children’s Guardian [2015] NSWSC 523
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSW 111
Commission for Children and Young People v V [2002] NSW SC 949
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: CGS (Applicant)
Office of the Children’s Guardian (Respondent)
Representation:
Counsel:
H Jewell (Applicant)
I Fraser (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 1510725
Publication restriction: The 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 is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) and has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a ‘disqualified person’ for the purpose of the Act. The order is known as an ‘enabling order’ and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s6 of the Act. No conditions can be placed on a working with children check clearance. The Children’s Guardian, who is the respondent in this matter, opposes the application for an enabling order.
The offences which bring the applicant within subsection 18(1) of the Act are three offences of indecent assault, the first having occurred in 1977, the second in 1994 and the third in 1995.
An application for an enabling order is required to be made within 28 days of the applicant being entitled to apply for such an order: rule 23(3) of the Civil and Administrative Tribunal Rules 2014. The applicant became entitled to apply for an enabling order on being declared a disqualified person on 4 November 2015.…

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 228
Decision Date: 12 October 2016

CaseChat Overview and Summary

The case of CGS v Children's Guardian involves the applicant, CGS, who sought an enabling order from the court to engage in child-related work despite being a disqualified person due to past convictions for indecent assault. The Children's Guardian contested the application on the grounds that CGS did not pose a sufficient risk to the safety of children. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether CGS had discharged the onus of proving that, despite his past convictions, he did not pose a significant risk to the safety of children when engaging in child-related activities.

The court examined the definition of child-related work and the requirements for obtaining an enabling order under the relevant legislation. It assessed the evidence presented by CGS, including expert opinions, psychological evaluations, and other mitigating factors. The court found that CGS had not successfully demonstrated that he had addressed the underlying issues that led to his disqualification and had not provided sufficient evidence to convince the court that he would not pose a risk to children. The court held that the onus remained on CGS to show that he was suitable to engage in child-related work, a burden he had failed to meet.

In reaching its decision, the court considered the potential impact of CGS’s past behavior on children and the public interest in protecting children from harm. It concluded that the risk, even if minimal, was not acceptable given the vulnerable nature of the population involved. Therefore, the court dismissed the application for an enabling order. The applicant’s request to engage in child-related work was denied, affirming the importance of stringent safeguards in child protection matters.

Orders

Orders of the court

The applicant’s application for an enabling order is dismissed.

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:	CGS v Children’s Guardian [2016] NSWCATAD 228
Hearing dates:	11 May 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member R Royer, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of three counts of indecent assault – whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged – definition of child-related work.
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 (NSW)
Cases Cited:	BGX v Children's Guardian [2014] NSWCATAD 173 BKE v Office of Children’s Guardian [2015] NSWSC 523 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSW 111 Commission for Children and Young People v V [2002] NSW SC 949 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CGS (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: H Jewell (Applicant) I Fraser (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	1510725
Publication restriction:	The 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.