Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CQX v Children’s Guardian [2017] NSWCATAD 286 Hearing dates: 10 March 2017, 12 May 2017(submissions closed 30/6/2017) Date of orders: 25 September 2017 Decision date: 25 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer Senior Member
B Field General MemberDecision: (1) The decision of the respondent dated 27 June 2016 to refuse to grant the applicant a Working With Children Check clearance is set aside.
(2) In substitution for that decision, the following decision is made: The applicant is granted a Working With Children Check clearanceCatchwords: CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27 – Whether inconsistencies in evidence constitutes breach of section 27 duty – Whether circumstances of conflicting evidence equate to risk to children – whether risk real and appreciable – Expert evidence- Character of applicant – Whether character necessarily in issue 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Child Protection (Prohibited Employment) Act 1998(Repealed)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
Criminal Records Act 1991Cases Cited: 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
BKE v Children’s Guardian [2015] NSWSC 523
CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v CKF [2017] NSWSC 893
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
M v M (1988) 166 CLR (HCA)
Makita Australia v Sprowles [2001] NSWCA 305
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Tilley v Children’s Guardian [2017] NSWCA 174Texts Cited: Butterworth’s Concise Australian Legal Dictionary (second edition) 1998
LexisNexis Concise Australian legal Dictionary 4th Edition 2011Category: Principal judgment Parties: CQX (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Solicitors:
C Doosey (Applicant)
V Hartstein (Respondent)
N/A (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2016/00378216, 1610452 Publication restriction: 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.
Reasons for decision
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On 25 July 2016 the applicant applied for administrative review in the Tribunal of a decision of the…
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Details
- Case
- [2017] NSWCATAD 286
- Decision Date
CaseChat Overview and Summary
In the case of CQX v Children's Guardian, the applicant, CQX, sought judicial review of a decision by the Children's Guardian to refuse to grant her a Working With Children Check clearance. The applicant sought to engage in volunteer work with children, and the refusal of the clearance hindered her ability to do so. The court was tasked with determining whether the Children's Guardian's decision was legally sound and fair, particularly in light of the evidence presented.
The legal issues before the court were multifaceted. Firstly, it was necessary to determine whether the decision to refuse the clearance was based on a presumption of risk as outlined in section 27 of the relevant legislation. Secondly, the court had to consider whether inconsistencies in the evidence provided constituted a breach of the duty under section 27. Thirdly, the court examined whether the conflicting evidence presented any real and appreciable risk to children, and whether the applicant's character was necessarily in issue in this context.
The court found that the decision to refuse the clearance was not based on a presumption of risk, as required by section 27. It was noted that the evidence against the applicant was not tested, and thus, its weight was questionable. The court held that the inconsistencies in the evidence did not, by themselves, equate to a real and appreciable risk to children. Furthermore, the court concluded that the applicant's character was not necessarily in issue when determining the risk to children in this context. The court set aside the decision to refuse the clearance and substituted it with a decision granting the applicant a Working With Children Check clearance, enabling her to engage in volunteer work with children.
The final orders of the court were that the decision of the Children's Guardian dated 27 June 2016 to refuse to grant the applicant a Working With Children Check clearance is set aside, and in substitution, the applicant is granted a Working With Children Check clearance.
The legal issues before the court were multifaceted. Firstly, it was necessary to determine whether the decision to refuse the clearance was based on a presumption of risk as outlined in section 27 of the relevant legislation. Secondly, the court had to consider whether inconsistencies in the evidence provided constituted a breach of the duty under section 27. Thirdly, the court examined whether the conflicting evidence presented any real and appreciable risk to children, and whether the applicant's character was necessarily in issue in this context.
The court found that the decision to refuse the clearance was not based on a presumption of risk, as required by section 27. It was noted that the evidence against the applicant was not tested, and thus, its weight was questionable. The court held that the inconsistencies in the evidence did not, by themselves, equate to a real and appreciable risk to children. Furthermore, the court concluded that the applicant's character was not necessarily in issue when determining the risk to children in this context. The court set aside the decision to refuse the clearance and substituted it with a decision granting the applicant a Working With Children Check clearance, enabling her to engage in volunteer work with children.
The final orders of the court were that the decision of the Children's Guardian dated 27 June 2016 to refuse to grant the applicant a Working With Children Check clearance is set aside, and in substitution, the applicant is granted a Working With Children Check clearance.
Orders
Orders of the court
(1) The decision of the respondent dated 27 June 2016 to refuse to grant the applicant a Working With Children Check clearance is set aside.
(2) In substitution for that decision, the following decision is made: The applicant is granted 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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