28 October 2016, last submissions directed to be provided by 28 November 2016. Last submissions received 5 December 2016
Date of orders:
28 April 2017
Decision date:
28 April 2017
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
M Anderson, Senior Member M Bolt, General Member
Decision:
1) The decision of the Children’s Guardian on 12 January 2016 to cancel the applicant’s Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.
2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
3) It is noted that 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-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – assessment under section 15 of the Child Protection (Working with Children) Act 2012 – applicant’s child sexually abused by applicant’s husband – Children’s Court final orders place child with grandparents due to perceived risk in applicant’s care - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children - paramount concern is protecting children from child abuse - the correct and preferable decision is to cancel a working with children check clearance – decision of Children’s Guardian confirmed.
[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
AGLC
CLD v Children's Guardian [2017] NSWCATAD 134
Case
[2017] NSWCATAD 134
Decision Date
CaseChat Overview and Summary
In the matter of CLD v Children's Guardian, the applicant contested the decision of the Children's Guardian to revoke her Working with Children Check clearance under the Child Protection (Working with Children) Act 2012. The applicant's child had been sexually abused by the applicant's husband, leading the Children's Court to place the child with the grandparents due to the perceived risk in the applicant's care. The central issue for the court was whether the applicant posed a risk to the safety of children and if the Guardian's decision to cancel her clearance was correct and preferable, given the evidence before the Tribunal.
The court examined the onus of proof in a review under section 27 of the Act, determining that a real and appreciable risk posed by the applicant to the safety, welfare, and well-being of children warranted the cancellation of her clearance. The paramount concern was protecting children from abuse, and the court found that the applicant's past actions and the circumstances surrounding the abuse created a significant risk. The court held that the Children's Guardian's decision was based on a proper assessment under section 15 of the Act and was supported by the evidence.
Consequently, the court confirmed the Children's Guardian's decision to cancel the applicant's Working with Children Check clearance, highlighting that the paramount concern was the safety of children. The court's decision underscored the importance of protecting children from potential harm and the necessity of strict compliance with child protection laws. The court also noted that the publication or broadcast of the names of any persons mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited, except for expert witnesses and officers of government agencies. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Orders
Orders of the court
1) The decision of the Children’s Guardian on 12 January 2016 to cancel the applicant’s Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.
2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
3) It is noted that 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.