CMD v Children's Guardian - [2017] NSWCATAD 150

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CMD v Children’s Guardian [2017] NSWCATAD 150
Hearing dates: 10, 11 October 2016
Date of orders: 12 May 2017
Decision date: 12 May 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hon G Mullane ACDC Principal Member;
A Limbury General Member
Decision:
1. The decision of the Children’s Guardian of 25 February 2016 refusing to issue CMD with a Working with Children Check Clearance is affirmed.
2. Publication or broadcast, without the leave of the Tribunal, of the name or other identifying information of any child referred to in the proceedings is prohibited.
Catchwords: Working with Children Check Clearance; criminal charges dismissed, refusal of clearance , Review of decision, refusal affirmed.
Legislation Cited: Administrative Decisions Review Act 1997
Adoption Act 2000
Child Protection (Working With Children) Act 2012
Child Protection Legislation Amendment Act 2015
Cases Cited: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164;
BKV v Children's Guardian [2015] NSWCATAD 65
BSR v Office of the Children's Guardian [2015] NSWCATAD 264
CDX v Children's Guardian [2016] NSWCATAD 17
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission For Children and Young People v V [2002] NSWSC 949
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CSR 1
Office of the Children's Guardian v CFW [2016] NSWSC 1406
Category: Principal judgment
Parties: CMD (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
R Mathur (Applicant)
I Fraser (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2016/00377938, 1610156
Publication restriction: Per order 2

reasons for decision

Introduction

On 18 December 2013, CMD applied to the respondent for a Working With Children Check Clearance under the Child Protection (Working with Children) Act 2012 (“the Act”).
The respondent carried out a risk assessment to assess whether CMD poses a risk to the safety of children.
On 18 September 2014 he was suspended for his employment as a teacher when the school received notice of allegations of misconduct in 2013 against a student aged 15 at the time.
On 14 October 2014 police charged CMD with 2 counts of common assault, one of indecent assault and one of procuring a child for unlawful sexual activity. The alleged victim was the same child in each. He was dismissed from his employment that day.
The criminal charges and an application by the police against CMD for an apprehended violence order to protect the child from CMD were all heard in the Local Court on 6, 8 and 9 October 2015. All those proceedings were dismissed.
In carrying out that assessment the respondent obtained documents and information from CMD and also from other sources.
By letter dated 25 February 2016, the respondent notified CMD that the respondent had refused to grant a Working With Children Check Clearance because the respondent was satisfied that CMD poses a risk to the safety of children.
This was a hearing of the application of CMD filed in…

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.

Continue reading CMD v Children's Guardian

Details

AGLC: CMD v Children's Guardian [2017] NSWCATAD 150
Case: [2017] NSWCATAD 150
Decision Date: 12 May 2017

CaseChat Overview and Summary

The case of CMD v Children's Guardian involved a dispute between the applicant, CMD, and the Children's Guardian concerning the refusal to grant CMD a Working with Children Check Clearance. The refusal was made following criminal charges against CMD that were subsequently dismissed. CMD sought a review of the decision under the Administrative Decisions (Judicial Review) Act 1977, arguing that the refusal was unreasonable and that the clearance should be granted. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the Children's Guardian was correct in refusing the clearance based on the dismissed charges and whether the decision was made without bias or error. CMD argued that the charges were dismissed due to a lack of evidence, and thus should not have been a basis for the refusal. The court needed to consider whether the Guardian's decision was lawful, reasonable, and based on appropriate considerations.

The court found that the Children's Guardian was entitled to refuse the clearance based on the dismissed charges, which, despite being dismissed, still indicated potential unsuitability to work with children. The Guardian had a duty to protect children and could consider past charges even if they were not pursued. The court held that the decision was not unreasonable and did not demonstrate bias or error. The Guardian's decision was supported by the material before them, and the applicant failed to demonstrate that the decision was unjust. Consequently, the application for judicial review was dismissed, affirming the refusal of the clearance.

Orders

Orders of the court

is having regard to the material then before it, including the following:

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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Medium Neutral Citation:	CMD v Children’s Guardian [2017] NSWCATAD 150
Hearing dates:	10, 11 October 2016
Date of orders:	12 May 2017
Decision date:	12 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane ACDC Principal Member; A Limbury General Member
Decision:	1. The decision of the Children’s Guardian of 25 February 2016 refusing to issue CMD with a Working with Children Check Clearance is affirmed. 2. Publication or broadcast, without the leave of the Tribunal, of the name or other identifying information of any child referred to in the proceedings is prohibited.
Catchwords:	Working with Children Check Clearance; criminal charges dismissed, refusal of clearance , Review of decision, refusal affirmed.
Legislation Cited:	Administrative Decisions Review Act 1997 Adoption Act 2000 Child Protection (Working With Children) Act 2012 Child Protection Legislation Amendment Act 2015
Cases Cited:	BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164; BKV v Children's Guardian [2015] NSWCATAD 65 BSR v Office of the Children's Guardian [2015] NSWCATAD 264 CDX v Children's Guardian [2016] NSWCATAD 17 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission For Children and Young People v V [2002] NSWSC 949 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CSR 1 Office of the Children's Guardian v CFW [2016] NSWSC 1406
Category:	Principal judgment
Parties:	CMD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: R Mathur (Applicant) I Fraser (Respondent) Solicitors: Nyman Gibson Miralis (Applicant) Crown Solicitor (Respondent)
File Number(s):	2016/00377938, 1610156
Publication restriction:	Per order 2