CLR v Children's Guardian - [2017] NSWCATAD 158

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CLR v Children’s Guardian [2017] NSWCATAD 158
Hearing dates: 24 October, 9 December 2016
Date of orders: 19 May 2017
Decision date: 19 May 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
E Hayes, General Member
Decision:
(1) The decision of the Children's Guardian dated 2 February 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 – negligent driving – whether intentional - no presumption of risk – assessment of risk – whether reasonable person would allow applicant direct contact with children – public interest – no real and appreciable risk to the safety of children.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection Legislation Amendment Act 2015
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
BYR v Children's Guardian [2013] NSWADT 310
CBN v Children’s Guardian [2016] NSWCATAD 240
CHB v Children’s Guardian [2016] NSWCATAD 214 CMA v Children’s Guardian [2016] NSWCATAD 264
Children’s Guardian v BRL [2016] NSWSC 1206
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Director of Public Prosecution v Smith (1991) VR 6
FZ v Commissioner for Children and Young People [2010] NSWCC 1201
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: CRL (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
H Grace (Applicant)
V Hartstein (Respondent)
Solicitors:
Zahr Partners (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2016/00377913, 1610128
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

The applicant, who will be referred to as CLR, requires a Working With Children Check clearance because she wishes to work as a teacher.
Although she was granted a clearance in 2014, a risk assessment was conducted for her when she was charged with a number of driving-related offences in July 2015. In November 2015, an interim bar was placed on her Working With Children Check clearance, which was subsequently cancelled on 2 February 2016.
The charges pertained to an alleged altercation between members of the applicant’s extended family. The applicant pleaded guilty to one count of negligent driving and three counts of failing to give particulars. As a result of the dispute, damage was sustained to three cars – including the applicant’s car – and a fence. The applicant was fined and,…

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: [2017] NSWCATAD 158
Decision Date: 19 May 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the case of CLR v Children's Guardian concerned the refusal by the Children's Guardian to grant the applicant a Working With Children Check clearance, which is a prerequisite for working with children in certain capacities. The applicant sought judicial review of this decision, arguing that the refusal was unreasonable and unjustifiable. The court was tasked with determining whether the Guardian's decision was lawful, rational, and based on appropriate considerations.

The primary legal issues before the court were whether the applicant's past driving offenses, which involved negligent driving, could be considered intentional acts, and if there was a presumption of risk when assessing the suitability of the applicant to work with children. The court also needed to determine whether a reasonable person would allow the applicant direct contact with children, given the alleged risk, and weigh this against the public interest in ensuring child safety.

The court found that the applicant's driving offenses, while serious, did not constitute intentional acts that would inherently disqualify the applicant from working with children. It was noted that there was no presumption of risk associated with negligent driving offenses, and the applicant had taken steps to mitigate any potential risk. The court held that the Guardian's decision was not based on a proper assessment of the risk and failed to consider the lack of a real and appreciable risk to the safety of children. The court concluded that the Guardian's decision was unreasonable and set it aside, substituting it with a decision to grant the applicant a Working With Children Check clearance.

Orders

Orders of the court

(1) The decision of the Children's Guardian dated 2 February 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.

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:	CLR v Children’s Guardian [2017] NSWCATAD 158
Hearing dates:	24 October, 9 December 2016
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children's Guardian dated 2 February 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 – negligent driving – whether intentional - no presumption of risk – assessment of risk – whether reasonable person would allow applicant direct contact with children – public interest – no real and appreciable risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection Legislation Amendment Act 2015 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 BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 CHB v Children’s Guardian [2016] NSWCATAD 214 CMA v Children’s Guardian [2016] NSWCATAD 264 Children’s Guardian v BRL [2016] NSWSC 1206 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Director of Public Prosecution v Smith (1991) VR 6 FZ v Commissioner for Children and Young People [2010] NSWCC 1201 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CRL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: H Grace (Applicant) V Hartstein (Respondent) Solicitors: Zahr Partners (Applicant) Crown Solicitor (Respondent)
File Number(s):	2016/00377913, 1610128
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.