CKJ v Children's Guardian - [2018] NSWCATAD 117

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CKJ v Children’s Guardian [2018] NSWCATAD 117
Hearing dates: 15 February 2018
Date of orders: 31 May 2018
Decision date: 31 May 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
D Crowley, General Member
Decision:
(1) The respondent’s decision made on 30 September 2016 to cancel the applicant’s working with children check clearance is set aside.
(2) In substitution for that decision a decision is made to grant the applicant a working with children check clearance.
Catchwords: ADMINISTRATIVE REVIEW – review of a decision of the respondent to cancel the applicant’s working with children check clearance – the applicant was a former authorised carer who had her authorisation cancelled following allegations made against her by two boys in her care – the allegations were investigated and found sustained – in 2017 the District Court found that the findings of the allegations was unreliable and care orders were made granting the applicant parental responsibility of a child who had been in her care – whether the allegations made – whether the allegations made by the boys were such that the applicant poses a risk to the safety of children
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) and other Child Protection Legislation 2016 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Commission for Children and Young People Act 1998 (NSW) (Repealed)
Community Services (Complaints, Reviews and Monitoring) Act 1993
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264
CKJ v Life Without Barriers [[2016] NSWCATAD 70
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
CTM v Children’s Guardian [2016] NSWCATAD 280
CZZ v Children’s Guardian [2018] NSWCATAD 56
Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59
FZ v Commissioner for Children and Young People [2010] NSWSC 1144
Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162
M v M [1988] HCA 68; (1988) 166 CLR 69
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: CKJ (Applicant)
Children’s Guardian (Respondent)

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: [2018] NSWCATAD 117
Decision Date: 31 May 2018

CaseChat Overview and Summary

The case of CKJ v Children's Guardian involved a review of a decision by the respondent to cancel the applicant's working with children check clearance. The applicant was a former authorised carer whose authorisation was cancelled due to allegations made by two boys in her care. These allegations were investigated and found to be sustained. However, in 2017, the District Court found that the findings of the allegations were unreliable and made care orders granting the applicant parental responsibility of a child who had been in her care. The primary issue for the court to determine was whether the allegations made against the applicant were such that they posed a risk to the safety of children.

The court considered the evidence and arguments presented by both parties. It noted that the District Court had found the allegations to be unreliable, which was a significant factor in its decision. The court also considered the applicant's history and her current circumstances, including the care orders made in 2017. The court concluded that the allegations, while serious, were not such that they posed a risk to the safety of children. Therefore, the court found that the respondent's decision to cancel the applicant's working with children check clearance was not justified.

The court set aside the respondent's decision made on 30 September 2016 to cancel the applicant's working with children check clearance. In substitution for that decision, the court made a decision to grant the applicant a working with children check clearance. The court's decision provides guidance on the factors that should be considered when reviewing a decision to cancel a working with children check clearance and highlights the importance of considering the reliability of allegations when making such decisions.

Orders

Orders of the court

(1) The respondent’s decision made on 30 September 2016 to cancel the applicant’s working with children check clearance is set aside.

(2) In substitution for that decision a decision is made 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CKJ v Children’s Guardian [2018] NSWCATAD 117
Hearing dates:	15 February 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member D Crowley, General Member
Decision:	(1) The respondent’s decision made on 30 September 2016 to cancel the applicant’s working with children check clearance is set aside. (2) In substitution for that decision a decision is made to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE REVIEW – review of a decision of the respondent to cancel the applicant’s working with children check clearance – the applicant was a former authorised carer who had her authorisation cancelled following allegations made against her by two boys in her care – the allegations were investigated and found sustained – in 2017 the District Court found that the findings of the allegations was unreliable and care orders were made granting the applicant parental responsibility of a child who had been in her care – whether the allegations made – whether the allegations made by the boys were such that the applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and other Child Protection Legislation 2016 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Commission for Children and Young People Act 1998 (NSW) (Repealed) Community Services (Complaints, Reviews and Monitoring) Act 1993 Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 CKJ v Life Without Barriers [[2016] NSWCATAD 70 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CTM v Children’s Guardian [2016] NSWCATAD 280 CZZ v Children’s Guardian [2018] NSWCATAD 56 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CKJ (Applicant) Children’s Guardian (Respondent)