CNZ v Children's Guardian - [2017] NSWCATAD 124

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CNZ v Children’s Guardian [2017] NSWCATAD 124
Hearing dates: 13 October 2016, 27 October 2016, 25 November 2016
Date of orders: 24 April 2017
Decision date: 24 April 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
B Field, General Member
Decision:
(1) The applicant's application for an enabling order is refused.

Catchwords: CHILD Protection – Working with Children – Risk – Presumption of risk in application - Whether risk real and appreciable – Serious offence – Pattern persisting over many decades – Insight of applicant – Boundary between applicant and clients - Enabling order – Whether discharge of onus – Whether evidence establishes risk – Expert evidence –
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes Act 1900
Criminal Records Act 1991
Evidence Act 1995 (NSW)
Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
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
Commission for Children and Young People v FZ [2011] NSWCA 111
R v Commission for Children and Young People [2002] NSWIR Comm 101
Commission for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: CNZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
I Fraser (Applicant)
M Giacomo (Respondent)
Solicitors:
Streeton Lawyers (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00378071, 1610301
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

The applicant in these proceedings is referred to as "CNZ". CNZ is the applicant's pseudonym used in these proceedings.
On 11 May 2016 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for a Working With Children Check clearance. The applicant seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act'), should be issued by the Tribunal.
On 6 May 2016 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The jurisdiction of the Tribunal under Part 4 of the Act is…

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 124
Decision Date: 24 April 2017

CaseChat Overview and Summary

In the matter of CNZ versus the Children's Guardian, the primary focus of the dispute was the granting of an enabling order by the Children's Court of Victoria. The applicant, CNZ, sought to engage in work that requires a Working with Children Check, but faced opposition from the Children's Guardian, who argued that the applicant posed an appreciable risk to children. The legal issues at hand revolved around the interpretation of the relevant legislative provisions concerning the granting of enabling orders, and whether the onus was discharged by the applicant to demonstrate that they did not pose an appreciable risk to children. The court had to determine whether the risk was real and appreciable, considering the applicant's past history of serious offences, their insight into these behaviours, and the boundary between the applicant and their potential clients.

The court undertook a detailed analysis of the evidence presented, including expert testimony and the applicant's own submissions. It was held that the applicant's pattern of offending, which persisted over many decades, was a significant factor in assessing the risk they posed to children. The court found that the applicant's lack of insight into their past behaviours further contributed to the risk assessment. The boundary between the applicant and their potential clients, which was considered to be minimal, was also a critical factor in the court's determination. Ultimately, the court concluded that the evidence did not establish that the applicant did not pose an appreciable risk to children, and thus the onus was not discharged. Consequently, the court refused the applicant's application for an enabling order.

The court's reasoning was grounded in the statutory framework and the need to protect children from potential harm. It was emphasised that the court must err on the side of caution when considering applications for enabling orders, given the vulnerable nature of the population they seek to protect. The applicant's history and insight were deemed to be relevant and significant in assessing the risk they posed. The court's decision reflects the importance of ensuring that those who work with children are not only qualified but also pose no appreciable risk to the safety and wellbeing of children. The final orders of the court were that the applicant's application for an enabling order be, and is hereby, refused.

Orders

Orders of the court

(1) The applicant's application for an enabling order is refused.

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:	CNZ v Children’s Guardian [2017] NSWCATAD 124
Hearing dates:	13 October 2016, 27 October 2016, 25 November 2016
Date of orders:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member B Field, General Member
Decision:	(1) The applicant's application for an enabling order is refused.
Catchwords:	CHILD Protection – Working with Children – Risk – Presumption of risk in application - Whether risk real and appreciable – Serious offence – Pattern persisting over many decades – Insight of applicant – Boundary between applicant and clients - Enabling order – Whether discharge of onus – Whether evidence establishes risk – Expert evidence –
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Criminal Records Act 1991 Evidence Act 1995 (NSW)
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 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 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIR Comm 101 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CNZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Applicant) M Giacomo (Respondent) Solicitors: Streeton Lawyers (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378071, 1610301
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.