CLF v Children's Guardian

[2017] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CLF v Children’s Guardian [2017] NSWCATAD 9
Hearing dates:	23 August 2016
Date of orders:	04 January 2017
Decision date:	04 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member Prof P Foreman, General Member
Decision:	1   The decision of the Children's Guardian dated 8 January 2016 to refuse to grant the applicant a working with children check clearance is set aside. 2   In substitution for that decision, the following decision is made: the applicant is granted a working with children check clearance.
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence –Credibility of complainant – Inconsistency of complainant’s evidence - No presumption of risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Children’s Guardian [2015] NSWSC 523 BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41]. BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 Children and Young People v FZ [2011] NSWCA, Children’s Guardian v BQP [2016] NSWSC 109 Children’s Guardian v BRL [2016] NSWSC 1206 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 FZ v Commissioner for Children and Young People [2010] NSWCC 1201 M v M (1988) 166 CLR 69; [1988] HCA 68 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
Category:	Principal judgment
Parties:	CLF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: T Edwards (Applicant) V Hartstein (Respondent)   Solicitors: Browns Legal & Consulting (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610102
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant, who will be referred to as CLF, requires a working with children check clearance to continue to care for his foster son.

2. The applicant was previously cleared to work with children in 2010. When he re-applied for a working with children check clearance in 2015, the Children’s Guardian, who is the respondent in this matter, conducted a risk assessment for him. On 9 September 2015, an interim bar was made against the applicant.

3. Following the completion of the risk assessment, which considered allegations of sexual and physical abuse against the applicant, the Children’s Guardian made a decision on 8 January 2016 to refuse to grant him a working with children check clearance.

4. CLF’s application for review was lodged within time…