CLL v Children's Guardian

Case [2017] NSWCATAD 69

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CLL v Children’s Guardian [2017] NSWCATAD 69
Hearing dates: 24 October 2016
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
P Foreman, General Member
Decision:

1. The decision of the Children’s Guardian to refuse to grant the Applicant a Working With Children Check Clearance is affirmed.
2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.

 Note: 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 Working with children check – clearance – protective jurisdiction – safety and well- being of children. Applicant not guilty of trigger matters- whether Applicant poses threat to safety of children.
Legislation Cited: Child Protection (Working with Children Act) 2012 NSW
Crimes Act 1900 NSW
Administrative Decisions Review Act 1997 NSW
Civil and Administrative Tribunal Act 2013 NSW
Commission for Young Children and Young People Act 1998 NSW
Family Law Act 1975 (Cth)
Evidence Act 1995 NSW
Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247
Commission for Children and Young People v V [2002] NSWSC 949.
ADV v Commission for Children and Young People [2012] NSWADT 8,
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140]
RV v Commission for Children and Young People [2007] NSWADT 299
Commissioner for Children and Young People v FZ [2011] NSWCA
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category:Principal judgment
Parties: CLL (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
K Morrissey (Applicant)
A Douglas-Baker (Respondent)

  Solicitors:
Lindsay Brien (Applicant)
The Crown Solicitor’s Office (Respondent)
File Number(s): 1610115
Publication restriction: See Order 2

reasons for decision

The application

  1. On 7 April 2015 the Applicant, who is referred to in this decision as CLL, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.

  2. On 19 August 2015 the Respondent advised the Applicant that he had been made subject to an Interim Bar under s. 17 Child Protection (Working with Children) Act 2012 pending further enquiry by the Office of the Children’s Guardian.

  3. On 18 May 2016 the Respondent decided pursuant to s.18(2) of Child Protection (Working with Children) Act to refuse to grant the Applicant a WWCCC on the basis that the Applicant poses a risk to the safety of children.

  4. On 30 May 2016 Principal Member Higgins made orders by consent of the parties amending the application seeking a review of the interim bar decision to an application for review of the decision to…

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Details
AGLC
CLL v Children's Guardian [2017] NSWCATAD 69
Case
[2017] NSWCATAD 69
Decision Date

CaseChat Overview and Summary

The case between CLL and the Children's Guardian arose in the context of a refusal by the Children's Guardian to grant the applicant a Working With Children Check Clearance under the Child Protection (Working with Children) Act 2012. The applicant sought a review of the decision, arguing that it was unreasonable and that he did not pose a threat to the safety and well-being of children. The Guardian maintained that the refusal was justified and necessary to protect children.

The primary legal issue before the court was whether the Children's Guardian's decision to refuse the clearance was lawful and reasonable. The applicant contended that he had not been found guilty of any of the trigger matters specified in the Act and that the Guardian's decision was therefore unjustified. The Guardian argued that the decision was based on information that indicated the applicant posed a potential threat to children, justifying the refusal under the Act's protective jurisdiction.

The court considered the statutory framework and the specific provisions of the Act that empower the Children's Guardian to refuse clearance. It examined the evidence and the decision-making process, assessing whether the Guardian's decision was within the scope of the statutory powers and was based on reasonable grounds. The court found that the Guardian had appropriately exercised their discretion and that the decision was supported by the relevant information and the objectives of the Act to protect children.

The court affirmed the decision of the Children's Guardian to refuse the clearance and prohibited the disclosure of any information that might identify the applicant or any alleged victim or child. This outcome upheld the statutory protective measures and the discretion granted to the Guardian under the Act.

Orders

Orders of the court

1. The decision of the Children’s Guardian to refuse to grant the Applicant a Working With Children Check Clearance is affirmed.

2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.

Note: 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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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