CNR v Children's Guardian - [2016] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CNR v Children’s Guardian [2016] NSWCATAD 196
Hearing dates: 8 August 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Anderson, Senior Member
B Field, General Member
Decision:
The applicant’s application for an enabling order is dismissed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person – whether applicant has discharged onus to rebut statutory presumption that he poses a risk to the safety of children
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Cases Cited: Commission for Children and Young People v [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
YG and GG v Minister for Community Services [2002] NSWCA 247
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523
BJB v Office of the Children’s Guardian [2014] NSWCATAD 111
M v M [1988] HCA 68; 166 CLR 69
Category: Principal judgment
Parties: CNR (Applicant)
NSW Office of the Children’s Guardian (Respondent)
Representation:
Counsel
P Guterres (Respondent)
Solicitors:
CNR (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1610284
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

REASONS FOR DECISION

Background

On 17 March 2016, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a Working with Children Check clearance.
On 11 April 2016, the Respondent notified the Applicant that his criminal history disclosed a disqualifying offence, namely, a conviction for sexual assault (category 4) contrary to section 61E of the Crimes Act 1900 (NSW), and as a disqualified person he must not be granted a working with children check clearance.
On 2 May 2016, the Applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (an “enabling order”).

The working with children legislative scheme

The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check…

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: [2016] NSWCATAD 196
Decision Date: 31 August 2016

CaseChat Overview and Summary

The matter before the court involved an application by CNR for an enabling order, challenging a decision made by the Children's Guardian that he was unsuitable to work with children. CNR, a disqualified person under the Working With Children Act, sought to rebut the presumption that he posed a risk to children. The court was tasked with determining whether CNR had successfully discharged the onus of proving that he no longer posed such a risk.

The primary legal issue was whether CNR, a disqualified person under the Working With Children Act, had effectively rebutted the statutory presumption that he posed a risk to the safety of children. The court had to consider whether CNR had demonstrated a sufficient change in circumstances to warrant a reconsideration of the presumption of risk. This involved assessing the evidence presented by CNR and determining if it met the threshold required to rebut the statutory presumption.

The court found that CNR had not discharged the onus of proving that he no longer posed a risk to children. The evidence provided was deemed insufficient to rebut the presumption that CNR posed a risk to children's safety. The court concluded that the statutory presumption remained unchallenged and that CNR had not provided adequate grounds to warrant an enabling order. Consequently, the application for an enabling order was dismissed.

Orders

Orders of the court

The applicant’s application for an enabling order is dismissed.

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:	CNR v Children’s Guardian [2016] NSWCATAD 196
Hearing dates:	8 August 2016
Date of orders:	31 August 2016
Decision date:	31 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member B Field, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person – whether applicant has discharged onus to rebut statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69
Category:	Principal judgment
Parties:	CNR (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel P Guterres (Respondent) Solicitors: CNR (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1610284
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.