CPO v Children's Guardian - [2017] NSWCATAD 149

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CPO v Children’s Guardian [2017] NSWCATAD 149
Hearing dates: 15 December 2016
Date of orders: 11 May 2017
Decision date: 11 May 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Booby Senior Member
P Foreman General Member
Decision:
1. The decision of the Children’s Guardian dated 1 September 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.
2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children. Applicant not guilty of trigger matters- whether Applicant poses threat to safety of children.
Legislation Cited: Child Protection (Working with Children Act) 2012 NSW
Crimes Act 1900 NSW
Administrative Decisions Review Act 1997 NSW
Civil and Administrative Tribunal Act 2013 NSW
Commission for Young Children and Young People Act 1998 NSW
Family Law Act 1975 (Cth)
Evidence Act 1995 NSW
Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247
Commission for Children and Young People v V [ 2002] NSWSC 949.
ADV v Commission for Children and Young People [2012] NSWADT 8,
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140]
RV v Commission for Children and Young People [2007] NSWADT 299
Commissioner for Children and Young People v FZ [2011] NSWCA
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category: Principal judgment
Parties: CPO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
L Doust (Applicant)
V Hartstein (Respondent)
Solicitors:
Spooner & Hall (Applicant)
Crown Solicitor's Office (Respondent)

File Number(s): 1610355
Publication restriction: See Order 2

reasons for decision

The application

On 10 April 2015 the Applicant, who is referred to in this decision as CPO, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.
On 1 September 2015 the Respondent advised that pursuant to s.18(2) of Child Protection (Working with Children) Act it had refused to grant the Applicant a WWCCC on the basis that the Applicant poses a risk to the safety of children.
On 27 May 2016 pursuant to s. 27 of the Child Protection (Working with Children) Act, CPO filed an application seeking a review of the decision of the Children’s Guardian. The application was filed outside the 28-day period allowed. However an order extending the…

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 149
Decision Date: 11 May 2017

CaseChat Overview and Summary

The case of CPO v Children's Guardian involves a dispute regarding the refusal of the Children's Guardian to grant the applicant a Working with Children Check Clearance under the Child Protection (Working with Children) Act 2012. The applicant sought judicial review of the decision, arguing that the Guardian's refusal was unjust and that the applicant did not pose a threat to the safety and well-being of children. The matter was heard and determined by the Federal Circuit and Family Court of Australia.

The legal issues before the court centred on the interpretation and application of the Child Protection (Working with Children) Act 2012, particularly in relation to the granting of a Working with Children Check Clearance. The court had to determine whether the Children's Guardian had correctly exercised their protective jurisdiction by refusing to grant the clearance, and if the decision was justified by the applicant's potential threat to children's safety. The applicant argued that they were not guilty of any of the trigger matters that could lead to the refusal of a clearance, and therefore, the decision was not supported by the evidence.

The court found that the Children's Guardian's decision to refuse the clearance was not supported by the evidence and was therefore unreasonable. The applicant was not found guilty of any of the trigger matters, and the Guardian had not provided any evidence to support the contention that the applicant posed a threat to the safety and well-being of children. The court held that the decision was made without regard to the relevant legal principles and was therefore flawed. The court set aside the decision of the Children's Guardian and granted the applicant a Working with Children Check Clearance.

In addition to setting aside the Guardian's decision, the court also ordered that the disclosure of the applicant's name and any alleged victim or child was prohibited. This order aims to protect the privacy and confidentiality of the individuals involved in the proceedings. The court's decision provides a clear interpretation of the relevant legal principles and highlights the importance of evidence-based decision-making in matters involving the safety and well-being of children.

Orders

Orders of the court

1. The decision of the Children’s Guardian dated 1 September 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.

2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

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:	CPO v Children’s Guardian [2017] NSWCATAD 149
Hearing dates:	15 December 2016
Date of orders:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby Senior Member P Foreman General Member
Decision:	1. The decision of the Children’s Guardian dated 1 September 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance. 2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person
Catchwords:	Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children. Applicant not guilty of trigger matters- whether Applicant poses threat to safety of children.
Legislation Cited:	Child Protection (Working with Children Act) 2012 NSW Crimes Act 1900 NSW Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category:	Principal judgment
Parties:	CPO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Doust (Applicant) V Hartstein (Respondent) Solicitors: Spooner & Hall (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1610355
Publication restriction:	See Order 2