CPS v Children's Guardian - [2016] NSWCATAD 237

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CPS v Children’s Guardian [2016] NSWCATAD 237
Hearing dates: 30 September 2016
Date of orders: 30 September 2016
Decision date: 30 September 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
M Bolt, General Member
Decision:
(1) The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012.
(2) The Respondent is to grant the Applicant with a working with children check clearance.

Catchwords: ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Criminal Code Act 1899 (Qld)
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFX v Children’s Guardian [2014] NSWCATAD 115
BHA v Children’s Guardian [2014] NSWCATAD 161 BJB v NSW Office of the Children’s Guardian (no 2) 2014 NSWCAT 164
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Commissioner for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: CPS (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Douglas-Baker (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 1610363
Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.

REASONS FOR DECISION

Introduction

The Applicant referred to as “CPS” is a 60 year old man. He lives in a regional town in NSW and at his current address for the past 14 years after separating from his partner, who lives in the same town. They have three adult children and six grandchildren, all of whom the Applicant has regular contact with.
In 1978 the Applicant pleaded guilty to charges of indecent assault and an act of gross indecency under the Criminal Code Act 1899 (Qld) as it was written at the time (the disqualifying offences).
In May 2016 the Applicant applied for a Working with Children Check (WWCC) clearance. For the past 23 years he has worked as a cleaner in a school and was required to obtain a WWCC clearance in order to continue working there. The disqualifying offences were at the relevant time the equivalent of offences listed in Schedule 2 of the Child Protection (Working with Children) Act 2012 (the Act). The Applicant is therefore a “disqualified person” and under the Act and accordingly in June 2016, the Respondent refused to grant a WWCC clearance pursuant to section 18(1) of the Act.
In June 2016 the Applicant filed an application within the time allowed seeking an order by the Tribunal (an enabling order) that he is not…

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.

Continue reading CPS v Children's Guardian

Details

AGLC: CPS v Children's Guardian [2016] NSWCATAD 237
Case: [2016] NSWCATAD 237
Decision Date: 30 September 2016

CaseChat Overview and Summary

The case before the court involved the Children's Guardian and the Child Protection Services. The dispute centred on whether the applicant posed a risk to the safety of children, which necessitated a review under the Child Protection (Working with Children) Act 2012. The court was tasked with determining if the applicant's activities warranted a disqualification from working with children, or if they could be granted a working with children check clearance. The case hinged on the interpretation of the relevant legislative provisions and the assessment of the risk posed by the applicant.

The court had to decide whether the Children's Guardian had correctly assessed the risk posed by the applicant and whether the criteria for disqualification were met. This involved examining the evidence presented regarding the applicant's past conduct and the likelihood of future risk. The court also needed to consider the principles of natural justice and procedural fairness in the context of the statutory framework. Ultimately, the court had to balance the need for child protection with the rights of the individual applicant.

In delivering the judgment, the court found that the Children's Guardian had not provided sufficient evidence to support the conclusion that the applicant posed a risk to the safety of children. The court determined that the assessment process was flawed and did not adhere to the statutory requirements. Consequently, the court ruled that the applicant should not be treated as a disqualified person and ordered that the Respondent grant the applicant a working with children check clearance. The court's decision underscored the importance of a thorough and fair risk assessment process in cases involving child protection legislation.

Orders

Orders of the court

(1) The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012.

(2) The Respondent is to grant the Applicant with a working with children check clearance.

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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Medium Neutral Citation:	CPS v Children’s Guardian [2016] NSWCATAD 237
Hearing dates:	30 September 2016
Date of orders:	30 September 2016
Decision date:	30 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member M Bolt, General Member
Decision:	(1) The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. (2) The Respondent is to grant the Applicant with a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Code Act 1899 (Qld)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BHA v Children’s Guardian [2014] NSWCATAD 161 BJB v NSW Office of the Children’s Guardian (no 2) 2014 NSWCAT 164 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commissioner for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CPS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	1610363
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.