CJD v Children's Guardian - [2016] NSWCATAD 243

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CJD v Children’s Guardian [2016] NSWCATAD 243
Hearing dates: 27 May 2016
Date of orders: 31 October 2016
Decision date: 31 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Bolt, General Member
Decision:
(1) The decision of the Children’s Guardian dated 20 November 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.
(2) The application for review of the decision of the Children’s Guardian filed 14 December 2015 is otherwise refused and dismissed.

Catchwords: CHILD protection – Working with children- Absence of positive finding – Existence of risk – Real and appreciable risk – Similarity of allegations – Pattern of allegations
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes Act 1900
Crimes Sentencing Procedure Act 1999
Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111
CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
R v Commission for Children and Young People [2002] NSWIR Comm 101
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
ADV v Commission for Children and Young People [2012] NSWADT 8
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
M v M [1988] HCA 68; 166 CLR 59
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2
CGA v Children’s Guardian [2016] NSWCATAD 241
Category: Principal judgment
Parties: CJD (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
CJD (Applicant in person)
Crown Solicitors Office (Respondent)

File Number(s): 1510791
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any 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

The Applicant in these proceedings is referred to as "CJD". CJD is the applicant's pseudonym used in these proceedings. Having considered all of the evidence and material both filed and presented at hearing, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant does pose a risk to the safety and well-being of children, a risk that is a real and appreciable risk to the safety and well-being of children…

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 243
Decision Date: 31 October 2016

CaseChat Overview and Summary

In the matter of CJD v Children's Guardian, the applicant sought a review of a decision made by the Children's Guardian, dated 20 November 2015, to deny the applicant a Working with Children check clearance. The applicant, who had applied for such clearance, was concerned with the refusal and sought judicial review of the decision. The court was tasked with determining whether the Children's Guardian's decision was legally sound and whether there were grounds for the applicant to be granted the clearance.

The primary legal issues that the court had to address involved the interpretation and application of the statutory provisions governing Working with Children checks, specifically those related to the existence of a real and appreciable risk that the applicant might engage in child abuse. The applicant contested the Guardian's finding that there was an existence of such a risk, arguing that the allegations were not substantiated and did not warrant a refusal of clearance. The court had to consider whether the Guardian's decision was based on proper legal principles and whether the evidence supported the conclusion that a real and appreciable risk existed.

In its decision, the court found that the Children's Guardian had properly considered the statutory criteria and relevant evidence in making the decision. The court held that the Guardian's assessment of the risk, while not requiring a positive finding of abuse, was sufficient to conclude that there was a real and appreciable risk. The similarity of the allegations, coupled with the pattern they formed, provided a sufficient basis for the Guardian's decision. The court was satisfied that the Guardian had exercised their discretion correctly and that the applicant had not demonstrated any error in the decision-making process.

The final orders of the court affirmed the Children's Guardian's decision dated 20 November 2015 and dismissed the applicant's application for review. The court found no grounds to overturn the Guardian's decision, thereby upholding the refusal to grant the applicant a Working with Children check clearance.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 20 November 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed.

(2) The application for review of the decision of the Children’s Guardian filed 14 December 2015 is otherwise refused and 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:	CJD v Children’s Guardian [2016] NSWCATAD 243
Hearing dates:	27 May 2016
Date of orders:	31 October 2016
Decision date:	31 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the Children’s Guardian dated 20 November 2015 to refuse to grant the applicant a Working with Children check clearance is affirmed. (2) The application for review of the decision of the Children’s Guardian filed 14 December 2015 is otherwise refused and dismissed.
Catchwords:	CHILD protection – Working with children- Absence of positive finding – Existence of risk – Real and appreciable risk – Similarity of allegations – Pattern of allegations
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Crimes Sentencing Procedure Act 1999
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 CCC v Office of the Children’s Guardian (No 2) [2015] NSWSC 905 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 M v M [1988] HCA 68; 166 CLR 59 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 BLD v NSW Office of the Children’s Guardian [2015] NSWCATAD2 CGA v Children’s Guardian [2016] NSWCATAD 241
Category:	Principal judgment
Parties:	CJD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: CJD (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1510791
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.