CHJ v Children's Guardian - [2017] NSWCATAD 113

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CHJ v Children’s Guardian [2017] NSWCATAD 113
Hearing dates: 1 September 2016, 25 November 2016
Date of orders: 10 April 2017
Decision date: 10 April 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer (Senior Member)
P Foreman (General Member)
Decision:
(1) The decision of the respondent, dated 6 November 2015, to refuse to grant the applicant a Working With Children Check clearance is affirmed.
(2) The application is dismissed

Catchwords: CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence – Fairness to party – Proposed adverse finding -No presumption of risk s27 – Credibility of applicant.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998(Repealed)
Civil and Administrative Tribunal Act 2013
Interpretation Act 1987
Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
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 Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
Briginshaw v Briginshaw [1938] HCA 34
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
King v Collins [2007] NSWCA 122
L v The Commissioner for Children and Young People and anor [2008] NSWIRComm 195
Office of the Children's Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Category: Principal judgment
Parties: CHJ – Applicant
Office of the Children’s Guardian - Respondent
Representation:
Counsel:
B Regener – Applicant
V Hartstein - Respondent
Solicitors:
Streeton Lawyers- Applicant
Crown Solicitor’s Office - Respondent

File Number(s): 2015/00383626, 1510756
Publication restriction: An Order is made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

Introduction

On 3 December 2015 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a Working With Children Check clearance. That decision was made on 6 November 2015.
The Applicant in these proceedings is referred to as "CHJ". CHJ is the applicant's pseudonym used in these proceedings.
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30(1) of the Child Protection (Working with…

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: [2017] NSWCATAD 113
Decision Date: 10 April 2017

CaseChat Overview and Summary

The matter before the court involved the applicant, CHJ, and the respondent, the Children's Guardian. CHJ sought to challenge the respondent's decision to deny them a Working With Children Check clearance, a clearance which is necessary for individuals who wish to work with children or gain access to children's information. The decision was made after allegations of criminal conduct were made against CHJ. The court was required to determine whether the decision was lawful and whether it was fair to the applicant.

The central legal issue for the court to consider was whether the respondent's decision was based on a proper assessment of the evidence and whether the process was fair to the applicant. The applicant argued that the decision was not based on the weight of the evidence and that there was a presumption of risk under section 27 of the relevant legislation. The court needed to weigh the evidence presented, determine the credibility of the applicant, and assess whether the decision-making process was fair.

The court found that the decision to deny the clearance was based on a proper assessment of the evidence, and that the process was fair to the applicant. The court held that the evidence against the applicant was credible and that there was no presumption of risk under section 27. The court also found that the applicant's credibility was not as strong as the evidence against them. The decision to deny the clearance was affirmed, and the application was dismissed.

Orders

Orders of the court

(1) The decision of the respondent, dated 6 November 2015, to refuse to grant the applicant a Working With Children Check clearance is affirmed.

(2) The application 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:	CHJ v Children’s Guardian [2017] NSWCATAD 113
Hearing dates:	1 September 2016, 25 November 2016
Date of orders:	10 April 2017
Decision date:	10 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer (Senior Member) P Foreman (General Member)
Decision:	(1) The decision of the respondent, dated 6 November 2015, to refuse to grant the applicant a Working With Children Check clearance is affirmed. (2) The application is dismissed
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence – Fairness to party – Proposed adverse finding -No presumption of risk s27 – Credibility of applicant.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Interpretation Act 1987
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 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 Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Briginshaw v Briginshaw [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 King v Collins [2007] NSWCA 122 L v The Commissioner for Children and Young People and anor [2008] NSWIRComm 195 Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Category:	Principal judgment
Parties:	CHJ – Applicant Office of the Children’s Guardian - Respondent
Representation:	Counsel: B Regener – Applicant V Hartstein - Respondent Solicitors: Streeton Lawyers- Applicant Crown Solicitor’s Office - Respondent
File Number(s):	2015/00383626, 1510756
Publication restriction:	An Order is made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.