CLE v Children's Guardian - [2018] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CLE v Children’s Guardian [2018] NSWCATAD 234
Hearing dates: 26 July 2018
Date of orders: 09 October 2018
Decision date: 09 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
L Houlahan Senior Member
Decision:
The decision of the respondent dated 6 December 2016 is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – history of allegations – whether pattern – risk assessment –weight of evidence – conflicts in evidence – whether adverse inference available – whether positive findings can be made – adverse findings about risk of harm – availability of findings in absence of positive findings on allegations
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
CDF v Wesley Dalmar, CLE v Wesley Dalmar [2016] NSWCATAD 187
Children’s Guardian v CKF [2017] NSWSC 893
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Jones v Dunkel (1959) 101 CLR 298
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Texts Cited: Nil
Category: Principal judgment
Parties: CLE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
Self Represented (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2017/0023705
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCC), in that the respondent (the Office of the Children’s Guardian) following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons. The applicant sought a clearance…

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 234
Decision Date: 09 October 2018

CaseChat Overview and Summary

The case involved CLE, a childcare provider, who challenged the Children's Guardian's decision to include CLE on the Working with Children Register, effectively barring CLE from working with children. The dispute was heard by the Administrative Appeals Tribunal (AAT). The AAT had to determine whether the Children's Guardian's decision was lawful, reasonable, and justified, specifically focusing on whether there was a real and appreciable risk to children if CLE continued to work with them.

The key legal issues centred on whether there was sufficient evidence to establish a real and appreciable risk of harm to children by CLE. The AAT had to assess the credibility and weight of the evidence presented, including the history of allegations and whether there was a pattern of behaviour that indicated such a risk. The court also considered whether adverse inferences could be drawn from the evidence and whether findings of risk could be made in the absence of positive findings on specific allegations.

The AAT found that the evidence, though not establishing the specific allegations, did show a pattern of behaviour that suggested a real and appreciable risk to children. The court concluded that the risk assessment was reasonable and the decision to include CLE on the Working with Children Register was justified. The AAT upheld the Children's Guardian's decision, affirming it as lawful and reasonable.

No further orders were made by the AAT beyond affirming the decision of the Children's Guardian dated 6 December 2016.

Orders

Orders of the court

The decision of the respondent dated 6 December 2016 is affirmed.

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:	CLE v Children’s Guardian [2018] NSWCATAD 234
Hearing dates:	26 July 2018
Date of orders:	09 October 2018
Decision date:	09 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member L Houlahan Senior Member
Decision:	The decision of the respondent dated 6 December 2016 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – history of allegations – whether pattern – risk assessment –weight of evidence – conflicts in evidence – whether adverse inference available – whether positive findings can be made – adverse findings about risk of harm – availability of findings in absence of positive findings on allegations
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Evidence Act 1995
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CDF v Wesley Dalmar, CLE v Wesley Dalmar [2016] NSWCATAD 187 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Texts Cited:	Nil
Category:	Principal judgment
Parties:	CLE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Self Represented (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/0023705
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.