CGZ v Children's Guardian - [2016] NSWCATAD 220

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CGZ v Children’s Guardian [2016] NSWCATAD 220
Hearing dates: 8 June 2016
Date of orders: 06 October 2016
Decision date: 06 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
B Field, General Member
Decision:
The decision of the Respondent to refuse a Working with Children Clearance is affirmed.

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)
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 NSW
Cases Cited: 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
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
BQE v Children’s Guardian
[2015] NSWCATAD 89
CJT v Office of Children’s Guardian [2016] NSWSC 738
Commissioner for Children and Young People v IK [2005] NSWSC 1136
Commission for Children and Young People v FZ NSWCA 111
Commissioner for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: CGZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
De Brennan Tomlinson Pearce (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510733
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 “CGZ” is a 41 year old man born in Togo (West Africa). He migrated to Australia about 16 years ago to pursue educational and work opportunities. He and his female partner recently had their first child.
The Applicant was charged with committing an Assault with Act of Indecency (the offence) against an adult female following an incident (the incident) at her workplace in August 2013. The Applicant was convicted of this offence in the Local Court in June 2014 and was sentenced to a three year (Section 9) Bond. In November 2014, the Applicant was acquitted on appeal in the District Court of NSW.
In July 2014, the Applicant applied for a Working with Children Check (WWCC) clearance nominating clubs and other bodies as his employment sector but was deemed a disqualified person under the Child Protection (Working with Children) Act 2012 (the Act). In April 2015, following the acquittal in the District Court, the Applicant lodged a further application for a WWCC clearance. Although the Applicant was acquitted, the offence is listed in Schedule 1 of the Act and required the Respondent to conduct a risk assessment: the Act, s 15.
Section 18(2) of 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.

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Details

Case: [2016] NSWCATAD 220
Decision Date: 06 October 2016

CaseChat Overview and Summary

The matter before the court involved CGZ, the applicant, and the Children's Guardian, the respondent. The dispute centred on the refusal by the respondent to grant the applicant a Working with Children Clearance. The applicant sought to overturn the decision, arguing that it was unjust and not supported by the evidence. The case was heard in the relevant court, which was required to determine the validity of the decision-making process.

The primary legal issue before the court was whether the respondent had erred in their assessment of the risk that the applicant posed to the safety of children. The applicant argued that the decision was based on insufficient evidence and failed to consider the applicant's rehabilitation efforts and potential to work safely with children. The court needed to determine whether the respondent's decision was lawful, rational, and supported by the evidence.

In examining the evidence and the decision-making process, the court found that the respondent's decision was well-reasoned and supported by the evidence presented. The court held that the respondent had appropriately assessed the risk posed by the applicant and had considered all relevant factors in reaching their decision. The applicant's arguments regarding the insufficiency of evidence and the failure to consider their rehabilitation efforts were not accepted by the court. Consequently, the court affirmed the respondent's decision to refuse the Working with Children Clearance.

In summary, the court affirmed the decision of the respondent to refuse the applicant a Working with Children Clearance. The court found that the decision was lawful, rational, and supported by the evidence. The applicant's arguments were not persuasive, and the court held that the respondent had appropriately assessed the risk posed by the applicant.

Orders

Orders of the court

The decision of the Respondent to refuse a Working with Children 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:	CGZ v Children’s Guardian [2016] NSWCATAD 220
Hearing dates:	8 June 2016
Date of orders:	06 October 2016
Decision date:	06 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member B Field, General Member
Decision:	The decision of the Respondent to refuse a Working with Children Clearance is affirmed.
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) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 NSW
Cases Cited:	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 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BQE v Children’s Guardian [2015] NSWCATAD 89 CJT v Office of Children’s Guardian [2016] NSWSC 738 Commissioner for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v FZ NSWCA 111 Commissioner for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CGZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: De Brennan Tomlinson Pearce (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510733
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.