Dr J Lucy, Senior Member Dr B Field, General Member
Decision:
The respondent’s decision to cancel the applicant’s working with children check clearance is affirmed.
Catchwords:
WORKING WITH CHILDREN – Working with children check clearance – Review of decision to cancel applicant’s clearance – Applicant convicted of common assault against her daughter – Applicant working in family day care – History of FACS intervention with applicant’s own children – Previous convictions for offences involving deception - Whether applicant poses a risk to children – Whether applicant’s criminal record includes apprehended violence orders made against her - Whether s 30(1A) of Child Protection (Working with Children) Act 2012 (NSW) applies in circumstances – Whether a reasonable person would allow child to have direct and unsupervised contact with applicant
Counsel: L Jackson (Applicant) A Douglas Baker (Respondent)
Solicitors: G & D Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):
1510739
Publication restriction:
Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other…
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
AGLC
CHB v Children's Guardian [2016] NSWCATAD 214
Case
[2016] NSWCATAD 214
Decision Date
CaseChat Overview and Summary
The case of CHB v Children's Guardian involved the applicant, CHB, who had her working with children check clearance cancelled by the respondent, the Children's Guardian. The applicant, who worked in family day care, sought judicial review of the decision to cancel her clearance due to her criminal history and a conviction for common assault against her daughter. The Family Court of Australia was tasked with reviewing the decision under the Child Protection (Working with Children) Act 2012 (NSW).
The legal issues before the court centred on whether the applicant posed a risk to children, whether her criminal record included orders made against her, and whether section 30(1A) of the Act applied in the given circumstances. The court was required to determine if a reasonable person would allow a child to have direct and unsupervised contact with the applicant, considering her history of Family and Community Services (FACS) intervention with her own children, previous convictions involving deception, and the assault conviction.
The court found that the applicant's criminal history, particularly the assault conviction against her daughter and her history with FACS, indicated that she posed a risk to children. The court also noted that the applicant's criminal record included orders made against her, which further supported the decision to cancel her clearance. The court concluded that under section 30(1A) of the Act, a reasonable person would not allow a child to have direct and unsupervised contact with the applicant. Therefore, the court affirmed the respondent's decision to cancel the applicant's working with children check clearance.
Orders
Orders of the court
The respondent’s decision to cancel the applicant’s working with children check clearance is affirmed.