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CTF v Children's Guardian

CTF v Children's Guardian

Case [2017] NSWCATAD 184 14 June 2017

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CTF v Children’s Guardian [2017] NSWCATAD 184
Hearing dates: 1 March 2017
Date of orders: 14 June 2017
Decision date: 14 June 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Anderson, Senior Member
B Field, General Member
Decision:
1. The decision of the Children’s Guardian dated 23 August 2016 to refuse to grant the applicant a Working With Children Check clearance is affirmed.
2. The disclosure of the name of the applicant and any victim or child referred to in these reasons 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 – refusal of Working With Children Check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – where applicant convicted as a juvenile of assault of a 16 year old and charged with offence of murder – history of offences of violence and drug use –rehabilitation and abstinence from drugs – whether the applicant poses a risk to the safety of children
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Child Protection (Prohibited Employment) Act 1998 (Repealed)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
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BJB v Office of the Children’s Guardian [2014] NSWCATAD 111
BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523
Commission for Children and Young People v [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
M v M [1988] HCA 68; 166 CLR 69
YG and GG v Minister for Community Services [2002] NSWCA 247
Category: Principal judgment
Parties: CTF (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
M Fogarty (Applicant)
Solicitors:
Legal Aid Commission (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00378413, 1610659
Publication restriction: The disclosure of the name of the applicant and any victim or child referred to in these reasons 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.

REASONS FOR DECISION

The applicant, CTF, seeks review of the decision of the respondent, the Children’s Guardian, to refuse her application for a Working With Children Check clearance, under the Child Protection (Working with Children) Act 2012 (“the Act”).
On 15 January 2016, the applicant applied to the Office of the Children’s Guardian (the respondent) for a Working With Children Check clearance.
The respondent conducted a risk assessment of the applicant, and on 23 August 2016, determined to refuse the applicant’s application for a Working With Children Check clearance.
On 21 September 2016, being dissatisfied by that decision,…

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 CTF v Children's Guardian

Details

AGLC: CTF v Children's Guardian [2017] NSWCATAD 184
Case: [2017] NSWCATAD 184
Decision Date: 14 June 2017

CaseChat Overview and Summary

The applicant, CTF, sought a review of a decision by the Children’s Guardian to refuse to grant them a Working With Children Check clearance. The decision was made on the basis of a history of offences, including a conviction for assault of a 16 year old and a charge of murder. The applicant had also engaged in drug use and had a history of violence. The applicant was seeking the clearance to work in a role which involved contact with children. The dispute was heard in the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the refusal of the clearance was the correct and preferable decision, having regard to the material before the Tribunal, and whether the applicant posed a risk to the safety of children. The Tribunal had to consider the nature and gravity of the offences, the applicant’s history of offending and rehabilitation, and the likelihood of reoffending. The Tribunal also had to consider the principles of natural justice and procedural fairness in its decision-making process.

The Tribunal found that the decision of the Children’s Guardian was the correct and preferable decision. The Tribunal found that the applicant’s history of offending, including the serious nature of the offences, demonstrated a significant risk to the safety of children. The Tribunal also found that the applicant had not demonstrated sufficient rehabilitation or abstinence from drugs to mitigate this risk. The Tribunal considered the principles of natural justice and procedural fairness in its decision-making process and found that the Children’s Guardian had acted within their powers in refusing to grant the clearance.

The Tribunal affirmed the decision of the Children’s Guardian and prohibited the disclosure of the applicant’s name and any victim or child referred to in these reasons. The Tribunal also noted that the refusal of the clearance did not prevent the applicant from seeking a review of the decision or from seeking legal advice. The orders of the Tribunal were that the decision of the Children’s Guardian to refuse to grant the applicant a Working With Children Check clearance was affirmed and that the disclosure of the applicant’s name and any victim or child referred to in these reasons was prohibited.

Orders

Orders of the court

1. The decision of the Children’s Guardian dated 23 August 2016 to refuse to grant the applicant a Working With Children Check clearance is affirmed.

2. The disclosure of the name of the applicant and any victim or child referred to in these reasons 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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Citations

AGLC Citation

CTF v Children's Guardian [2017] NSWCATAD 184

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Office of the Children's Guardian v CFW
[2016] NSWSC 1406 Para 30

…In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Harrison J noted that in determining risk the Tribunal first had to consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had “no hesitation in rejecting the allegation…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 22

…In BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an applican…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 33

…en held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children’s Guardian (No. 2 ) [2014] NSWCATAD 164 at [32].…
BJB v Office of the Children's Guardian
[2014] NSWCATAD 111 Para 25

…The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 19

…These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [39], and BKE at [26].…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 25

…2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]…
Hancock v East Coast Timber Products Pty Ltd
[2011] NSWCA 11

…[2015] NSWSC 523 Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 M v M [1988] HCA 68; 166 CLR 69 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CTF (Applicant) Children’s Guardian (Respo…
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
[2006] HCA 53 Para 34

…cant has no legal burden she does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 3…
Ramsay v Australian Postal Commission
[2005] FCA 640 Para 102

…In Ramsay v Australian Postal Corporation [2005] FCA 640; 147 FCR 39 , Spender J said at 47:…
Commission for Young People v V
[2002] NSWSC 949 Para 18

…The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:…
YG & GG v Minister for Community Services
[2002] NSWCA 247 Para 24

…ribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].…
M v M
[1988] HCA 68 Para 29

…is Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:…
Briginshaw v Briginshaw
[1938] HCA 34 Para 29

…ech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an applicant had sexually abused a child in circumstances where the applicant had…
R v Commission for Children and Young People
[2002] NSWIRCOMM 101 Para 25

…69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]…

Legislation cited in this decision · 6

Administrative Decisions Review Act 1997 (NSW)
63, 65 3 mentions (from Para 23)
Civil and Administrative Tribunal Act 2013 (NSW)
36 2 mentions (from Para 26)
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 18)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 1)
Civil and Administrative Rules 2014 (NSW)
1 mention (from Para 27)
Evidence Act 1995 (Cth)
128) 1 mention (from Para 27)

Medium Neutral Citation:	CTF v Children’s Guardian [2017] NSWCATAD 184
Hearing dates:	1 March 2017
Date of orders:	14 June 2017
Decision date:	14 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member B Field, General Member
Decision:	1. The decision of the Children’s Guardian dated 23 August 2016 to refuse to grant the applicant a Working With Children Check clearance is affirmed. 2. The disclosure of the name of the applicant and any victim or child referred to in these reasons 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 – refusal of Working With Children Check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – where applicant convicted as a juvenile of assault of a 16 year old and charged with offence of murder – history of offences of violence and drug use –rehabilitation and abstinence from drugs – whether the applicant poses a risk to the safety of children
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
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 M v M [1988] HCA 68; 166 CLR 69 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CTF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) M Fogarty (Applicant) Solicitors: Legal Aid Commission (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378413, 1610659
Publication restriction:	The disclosure of the name of the applicant and any victim or child referred to in these reasons 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.