CMQ v Children's Guardian - [2017] NSWCATAD 358

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CMQ v Children’s Guardian [2017] NSWCATAD 358
Hearing dates: 01 September 2017
Date of orders: 12 December 2017
Decision date: 12 December 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Prof E Foreman, General Member
Decision:
(1) The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – Working with children – Criminal history – Offences of violence – Child victims – Assault
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Records Act 1991
Cases Cited: 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
CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179
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
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: CMQ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00377964
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, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR decision

Introduction

On 29 March 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to cancel the applicant’s working with children check clearance. That decision was made on 9 February 2016.
The Applicant in these proceedings is referred to as "CMQ". CMQ is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 4 (below).
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is currently a real and appreciable risk to the safety and well-being of children and young…

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 358
Decision Date: 12 December 2017

CaseChat Overview and Summary

The applicant, CMQ, sought judicial review of a decision by the respondent, the Children's Guardian, to cancel their Working with Children Check Clearance. This cancellation followed CMQ's disclosure of a criminal history involving offences of violence, with child victims. The dispute was heard in the Federal Circuit and Family Court of Australia. CMQ argued that the decision was unreasonable and should be quashed, contending that the criminal history did not necessarily disqualify them from working with children, and that the decision failed to consider mitigating factors.

The court was tasked with determining whether the decision to cancel the clearance was lawful and whether it was unreasonable to do so. The primary issues included whether the decision-maker properly considered the relevant statutory criteria and whether the decision was disproportionate given the nature and recency of the offences and the applicant's subsequent rehabilitation. CMQ also argued that the decision failed to adequately weigh the applicant's efforts towards rehabilitation and the risk of re-offending.

The court found that the decision to cancel the clearance was neither unlawful nor unreasonable. It held that the Children's Guardian was entitled to consider the applicant's criminal history involving offences of violence against children as a significant factor. The court found that the decision-maker had appropriately exercised their discretion by cancelling the clearance, taking into account the seriousness of the offences and the risk they posed to children. The court also noted that the decision considered the statutory criteria and did not disregard any relevant information. The application for judicial review was dismissed, and the decision to cancel the clearance was affirmed.

Orders

Orders of the court

(1) The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance 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:	CMQ v Children’s Guardian [2017] NSWCATAD 358
Hearing dates:	01 September 2017
Date of orders:	12 December 2017
Decision date:	12 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member Prof E Foreman, General Member
Decision:	(1) The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with children – Criminal history – Offences of violence – Child victims – Assault
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (Repealed) Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Records Act 1991
Cases Cited:	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 CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 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 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:	CMQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00377964
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, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.