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Children's Guardian v CXZ

Children's Guardian v CXZ

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Case Copied 22 August 2019 76 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Children’s Guardian v CXZ [2019] NSWSC 1083
Hearing dates: 16 November 2018
Date of orders: 22 August 2019
Decision date: 22 August 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Children’s Guardian shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment.

Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Clearance – principles to be applied by Tribunal in considering risk – whether failure to apply principles in M v M – whether failure to properly consider risk in relation to allegations – whether failure to assess cumulative weight of allegations – whether inadequate reasons provided by the Tribunal – directions
Legislation Cited: Administrative Decisions Act 1997 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Family Court Act 1975 (Cth)
Cases Cited: A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334
BVT v Office of Children’s Guardian [2016] NSWSC 1169
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
CGD v Children’s Guardian [2018] NSWSC 776
Children’s Guardian v CFW [2016] NSWSC 1406
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v BRL [2016] NSWSC 1206
CLD v Children’s Guardian [2017] NSWSC 936
CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348
Commission for Children and Young People v V (2003) 56 NSWLR 476; [2002] NSWSC 949
Commissioner for Children and Young Persons v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2018] NSWCATAD 36
DAR v Children’s Guardian [2018] NSWSC 942
FZ v Commissioner for Children and Young People [2010] NSWSC 1144
House v King (1936) 55 CLR 499; [1936] HCA 40
M v M (1988) 166 CLR 69; [1988] HCA 68
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Category: Principal judgment
Parties: Children’s Guardian (Plaintiff)
CXZ (Defendant)
Representation:
Counsel:
P Singleton with L Beange (Plaintiff)
L Andelman (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Craig Milne & Company (Defendant)

File Number(s): 2018/82822
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the grounds specified in s 8(1)(e) of that Act, the name and address of the defendant and any child referred to in the evidence before the Supreme Court and 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: [2019] NSWSC 1083
Decision Date: 22 August 2019

CaseChat Overview and Summary

The matter before the court involved a dispute regarding the refusal of a Working with Children Clearance to the respondent, CXZ, by the New South Wales Civil and Administrative Tribunal (NCAT). The Children's Guardian appealed the NCAT's decision, asserting that the tribunal had failed to apply the correct principles in assessing the risk associated with the allegations against CXZ. The court was required to determine whether the NCAT had erred in its application of the principles set out in M v M and whether it had properly considered the risk in relation to the allegations made against CXZ. Additionally, the court needed to decide whether the NCAT had adequately assessed the cumulative weight of the allegations and whether it had provided sufficient reasons for its decision.

The court found that the NCAT had indeed failed to apply the principles outlined in M v M. It was determined that the tribunal did not properly consider the risk associated with the allegations against CXZ and did not adequately assess the cumulative weight of the allegations. Furthermore, the court held that the reasons provided by the NCAT were inadequate. Consequently, the appeal was allowed, and the matter was remitted back to the NCAT for reconsideration in light of the court's findings. The court emphasised that the NCAT must properly apply the relevant principles, adequately consider the risk, and provide sufficient reasons for its decision.

Orders