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 MemberDecision: 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 personCatchwords: 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 NSWCases 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 53Category: Principal judgment Parties: CPO (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Solicitors:
L Doust (Applicant)
V Hartstein (Respondent)
Spooner & Hall (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 1610355 Publication restriction: See Order 2
reasons for decision
The application
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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.
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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.
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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…
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- Case
- [2017] NSWCATAD 149
- Decision Date
CaseChat Overview and Summary
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
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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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