CJS v Children's Guardian

Case [2017] NSWCATAD 55

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CJS v Children’s Guardian [2017] NSWCATAD 55
Hearing dates: 15 July 2016
Date of orders: 16 February 2017
Decision date: 16 February 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
B Field, General Member
Decision:

(1) The decision of the Children’s Guardian dated 3 December 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.

 (2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person
Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- Applicant found by reporting body to have engaged in sexual misconduct - whether Applicant poses threat to safety of children
Legislation Cited: Child Protection (Working with Children Act) 2012 NSW
Crimes Act 1900 NSW
Administrative Decisions Review Act 1997 NSW
Civil and Administrative Tribunal Act 2013 NSW
Commission for Young Children and Young People Act 1998 NSW
Family Law Act 1975 (Cth)
Evidence Act 1995 NSW
Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247
Commission for Children and Young People v V [ 2002] NSWSC 949.
ADV v Commission for Children and Young People [2012] NSWADT 8,
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140]
RV v Commission for Children and Young People [2007] NSWADT 299
Commissioner for Children and Young People v FZ [2011] NSWCA
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category:Principal judgment
Parties: CJS (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
C McGorey (Applicant)
M Neville (Respondent)

  Solicitors:
Marsdens Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 1510820
Publication restriction: See Order 2

reasons for decision

The application

  1. On 9 June 2015 the Applicant, who is referred to in this decision as CJS, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.

  2. The Respondent conducted a risk assessment as required under legislation and determined that CJS is a risk to the safety of children and refused to issue a WWCCC. The Respondent notified the Applicant of this decision on 3 December 2015.

  3. In an application filed on 30 December 2015 pursuant to s.27(1) of the Child Protection (Working with Children) Act, CJS seeks a review of the decision of the Children’s Guardian to refuse him a WWCCC.

  4. There is no dispute that the Tribunal…

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AGLC
CJS v Children's Guardian [2017] NSWCATAD 55
Case
[2017] NSWCATAD 55
Decision Date

CaseChat Overview and Summary

In the matter of CJS v Children's Guardian, the applicant, CJS, sought a review of a decision made by the Children's Guardian under section 27 of the Child Protection (Working with Children) Act 2012, which refused to grant him a Working with Children Check Clearance. This refusal was based on findings by the reporting body that CJS had engaged in sexual misconduct. The court was tasked with determining whether CJS posed a threat to the safety and well-being of children.

The primary legal issue before the court was whether the Children's Guardian's decision to deny CJS a Working with Children Check Clearance was lawful and justified. The court had to assess whether the decision was made in accordance with the legislative framework and whether it was supported by appropriate evidence. The court also needed to determine whether the Children's Guardian's decision was unreasonable in light of the evidence and whether there were any procedural or substantive errors in the decision-making process.

The court found that the Children's Guardian's decision was not supported by the evidence and was unreasonable. The court concluded that the reporting body's findings of sexual misconduct were not substantiated and that there was insufficient evidence to support the conclusion that CJS posed a threat to the safety and well-being of children. The court further found that the Children's Guardian had failed to consider relevant evidence and had not properly exercised its protective jurisdiction. As a result, the court set aside the decision of the Children's Guardian and granted CJS a Working with Children Check Clearance.

The final orders of the court were that the decision of the Children's Guardian dated 3 December 2015 to refuse to grant CJS a Working with Children Check Clearance be set aside, and in substitution, that CJS be granted a Working with Children Check Clearance. The court also prohibited the disclosure of the names of CJS and any alleged victims or children.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 3 December 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.

(2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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