CHN v Children's Guardian - [2016] NSWCATAD 294

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CHN v Children's Guardian [2016] NSWCATAD 294
Hearing dates: 11 November 2016
Date of orders: 15 December 2016
Decision date: 15 December 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: E Connor, Senior Member
P Foreman, General Member
Decision:
(1) The decision of the Children’s Guardian dated 6 November 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside.
(2) In substitution of that decision the respondent is to grant the applicant a Working with Children Check clearance.

Catchwords: ADMINISTRATIVE LAW-refusal of working with children check clearance-acts of indecency as child-anti-social behaviour as adult-assessment of risk
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111
Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35
Jones v Dunkel [1959] 101 CLR 298
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) [1981] 3 ALD 88
YG & GG v Minister for Community Services [2002] NSWCA 247
Category: Principal judgment
Parties: CHN (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Higgins (Applicant)
P Singleton (Respondent)
Solicitors:
M Fraser (Applicant)
Crown Solicitor (Respondent)

File Number(s): 1510761
Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Introduction

On 7 December 2015 the applicant, known as ‘CHN’ in these proceedings, filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) of the decision of the Children’s Guardian, made on 6 November 2015, to refuse a Working with Children Check clearance. The respondent was satisfied, following a risk assessment, that the applicant poses a risk to children. That decision is the subject of this review.
On 24 April 2014 the applicant applied for a Working with Children Check clearance from the respondent, the Children’s Guardian.
A risk assessment was undertaken pursuant to section 15(1) of the Act on the basis that CHN was subject to an assessment requirement referred to in section 14 triggered by clause 1 1 (a) of Schedule 1 of the Act.
On 6 November 2015 a notification letter was sent to CHN by the Children’s Guardian informing him that his application for a Working with Children Check clearance was refused and attaching Reasons for Decision.
The matters which triggered the risk assessment are a number of offences involving acts of indecency committed by CHN in 1982 when he was 15 years of age.
On 20 October 1982 CHN walked up behind a 23…

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.

Continue reading CHN v Children's Guardian

Details

AGLC: CHN v Children's Guardian [2016] NSWCATAD 294
Case: [2016] NSWCATAD 294
Decision Date: 15 December 2016

CaseChat Overview and Summary

The applicant, CHN, sought judicial review of a decision by the Children's Guardian to refuse to grant him a Working with Children Check clearance. This refusal was based on his history of acts of indecency as a child and anti-social behaviour as an adult. The Federal Circuit Court of Australia was tasked with reviewing the decision and determining whether it was legally sound.

The primary legal issue before the court was whether the Children's Guardian's decision to deny the applicant a Working with Children Check clearance was lawful. This involved assessing whether the Guardian had correctly applied the relevant statutory criteria when evaluating the risk posed by the applicant. The court needed to determine if the Guardian's decision was made without error of law, and if it was supported by proper consideration of all relevant factors.

In its decision, the court found that the Children's Guardian had not appropriately assessed the risk posed by the applicant, nor had they considered all relevant factors in reaching their decision. The court held that the Guardian's decision was not legally sound because it was based on an incomplete assessment of the risk. Consequently, the court set aside the decision and ordered that the Children's Guardian grant the applicant a Working with Children Check clearance.

The orders of the court required the Children's Guardian to set aside their earlier decision and grant the applicant the clearance he sought. The court emphasised the importance of a comprehensive risk assessment and the need for all relevant factors to be considered when making such decisions in the future.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 6 November 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside.

(2) In substitution of that decision the respondent is to grant the applicant a Working with Children Check clearance.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	CHN v Children's Guardian [2016] NSWCATAD 294
Hearing dates:	11 November 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member P Foreman, General Member
Decision:	(1) The decision of the Children’s Guardian dated 6 November 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside. (2) In substitution of that decision the respondent is to grant the applicant a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW-refusal of working with children check clearance-acts of indecency as child-anti-social behaviour as adult-assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 Jones v Dunkel [1959] 101 CLR 298 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) [1981] 3 ALD 88 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CHN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Higgins (Applicant) P Singleton (Respondent) Solicitors: M Fraser (Applicant) Crown Solicitor (Respondent)
File Number(s):	1510761
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.