CLB v Children's Guardian - [2016] NSWCATAD 311

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CLB v Children's Guardian [2016] NSWCATAD 311
Hearing dates: 14 October 2016
Date of orders: 14 October 2016
Decision date: 14 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: Mullane ADCJ, Principal Member
Dr B Field, General Member
Decision:
(1) Application for enabling orders is refused and dismissed.
(2) Broadcast or publication of the name or other identifying information in respect to any person referred to in these reasons other than by their name, without the leave of the Tribunal, is prohibited

Catchwords: Working with Children Check Clearance- refusal by the Children’s Guardian because applicant disqualified person- application for enabling orders – refused.
Legislation Cited: Child Protection (Working With Children) Act 2012;
Crimes Act, 1900;
Child Protection (Prohibited Employment) Act, 1998
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Commission For Children and Young People –v- V [2002] NSWSC 949;
BGX v Children’s Guardian [2014] NSWCATAD 173; CFJ v Children’s Guardian [2016] NSWCATAD 62.
Category: Principal judgment
Parties: CLB (Applicant)
Children’s Guardian (Respondent)
Representation: Counsel:
V Hartstein (Respondent)
Solicitors:
Crown Solicitors Office (Respondent)

File Number(s): 1610091
Publication restriction: See order 2

REASONS FOR DECISION

Introduction

On 20 July 2012, CLB pleaded guilty to possessing child abuse material. The offence was found proved, but pursuant to Section 10(1)(b), the Magistrate did not impose a conviction. He found the offence proved and sentenced the applicant to a good behaviour bond for 2 years, the conditions of which required him to be of good behaviour and to comply with an Apprehended Violence Order that had been made for protection of the victim (hereinafter called "B").
CLB in late 2015 or early 2016 obtained employment as a qualified personal trainer with a fitness company. The employer required him to obtain a Working With Children Check Clearance under the Child Protection (Working With Children) Act 2012 ("The Act").
He made the application for the clearance on 16 December 2015. Under the Act, a finding of guilt is included in the definition of "conviction".
The "conviction" for possession child abuse material under Section 91H of the Crimes Act 1900 is a disqualifying offence under the Act, and the Act prohibits the Children's Guardian from granting a Working With Children Check Clearance to a disqualified person. (Child abuse material is defined in s91FB(1) of the Crimes Act 1900.) Accordingly, the Children's Guardian refused the application by letter dated 16 December 2015 to CLB.
On 12 February 2016, CLB lodged his application to this Tribunal for enabling orders under the Act which would require the Children's Guardian to not treat CLB as a disqualified person and to issue him with a Working With Children Check Clearance.
The hearing was originally set down for 17 June 2016, but on the application of one or both parties it was deferred and proceeded on 14 October 2016.
At the end of the hearing, the Tribunal made an order refusing the application. These are the reasons.

The Evidence

The…

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 CLB v Children's Guardian

Details

AGLC: CLB v Children's Guardian [2016] NSWCATAD 311
Case: [2016] NSWCATAD 311
Decision Date: 14 October 2016

CaseChat Overview and Summary

The parties involved in this case are CLB, the applicant, and the Children's Guardian, the respondent. The applicant sought enabling orders to obtain a Working with Children Check Clearance, which had been refused by the Children’s Guardian due to the applicant being a disqualified person. The case was heard in the Children's Court of New South Wales. The primary legal issue the court needed to address was whether the refusal of the clearance was justified and whether enabling orders should be granted to the applicant.

The court examined the grounds for the applicant’s disqualification and assessed the implications of the Working with Children Check Act 2012 (NSW). The Children’s Guardian argued that the applicant’s disqualification was valid and that granting enabling orders would contravene public interest considerations, particularly the safety and welfare of children. The court considered the statutory framework and the discretion afforded to the Children’s Guardian in making decisions regarding disqualifications. It also reviewed the evidence and arguments presented by both parties.

The court found that the Children’s Guardian had properly exercised their discretion in refusing the clearance. The reasons for the applicant's disqualification were valid and sufficient to justify the refusal under the Act. The court held that granting enabling orders would undermine the purpose of the legislation, which is to protect children from individuals deemed unsuitable to work with them. Therefore, the application for enabling orders was dismissed. The court also issued an order prohibiting the broadcast or publication of the applicant's identifying information without the leave of the Tribunal.

Orders

Orders of the court

(1) Application for enabling orders is refused and dismissed.

(2) Broadcast or publication of the name or other identifying information in respect to any person referred to in these reasons other than by their name, without the leave of the Tribunal, is prohibited

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:	CLB v Children's Guardian [2016] NSWCATAD 311
Hearing dates:	14 October 2016
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal Member Dr B Field, General Member
Decision:	(1) Application for enabling orders is refused and dismissed. (2) Broadcast or publication of the name or other identifying information in respect to any person referred to in these reasons other than by their name, without the leave of the Tribunal, is prohibited
Catchwords:	Working with Children Check Clearance- refusal by the Children’s Guardian because applicant disqualified person- application for enabling orders – refused.
Legislation Cited:	Child Protection (Working With Children) Act 2012; Crimes Act, 1900; Child Protection (Prohibited Employment) Act, 1998 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commission For Children and Young People –v- V [2002] NSWSC 949; BGX v Children’s Guardian [2014] NSWCATAD 173; CFJ v Children’s Guardian [2016] NSWCATAD 62.
Category:	Principal judgment
Parties:	CLB (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Crown Solicitors Office (Respondent)
File Number(s):	1610091
Publication restriction:	See order 2