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CTM v Children's Guardian

CTM v Children's Guardian

Case [2016] NSWCATAD 280 29 November 2016

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CMT v Children’s Guardian [2016] NSWCATAD 280
Hearing dates: 12 August 2016
Date of orders: 29 November 2016
Decision date: 29 November 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
A Jones, General Member
Decision:
(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 31 March 2016 is refused and dismissed.

Catchwords: ADMINISTRATIVE LAW- Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under section 63 of the Crimes Act 1900 (NSW) for assault with intent to rape - assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children -Tribunal not bound by the rules of evidence - onus of proof- onus of proof not discharged by applicant- enabling order refused.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Child Protection Legislation Amendment Act 2015 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWSC 1602
BKV v Children’s Guardian [2015] NSWCATAD 65
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
Children’s Guardian v BQJ [2016] NSWSC 869
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
CFT v Children’s Guardian [2016] NSWCATAD 92
CHB v Children’s Guardian [2016] NSWCATAD 21
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA…

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 CTM v Children's Guardian

Details

AGLC: CTM v Children's Guardian [2016] NSWCATAD 280
Case: [2016] NSWCATAD 280
Decision Date: 29 November 2016

CaseChat Overview and Summary

The applicant, CTM, applied for a Working with Children check clearance under the Child Protection (Working with Children) Act 2012 (NSW). The application was for an enabling order under section 28 of the Act. The Children's Guardian opposed the application on the basis that the applicant was disqualified under section 63 of the Crimes Act 1900 (NSW) due to a disqualifying offence for assault with intent to rape. The dispute came before the court to determine whether the applicant had proven that he was not a risk to the safety of children.

The court was required to decide whether the applicant had discharged the onus of proving that he was not a risk to the safety of children. The court considered that the onus of proof was on the applicant and that the Tribunal was not bound by the rules of evidence. The court also needed to consider the assessment of the risk posed by the applicant.

The court found that the applicant had not discharged the onus of proof. The court considered the evidence and concluded that the applicant had not proven that he was not a risk to the safety of children. The court found that the applicant had committed a disqualifying offence for assault with intent to rape, which was a significant factor in the assessment of the risk posed by the applicant. The court held that the applicant had not provided sufficient evidence to rebut the presumption that he was a risk to the safety of children.

The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) was refused and dismissed. The court held that the applicant had not discharged the onus of proving that he was not a risk to the safety of children. The court considered the evidence and concluded that the applicant had committed a disqualifying offence for assault with intent to rape, which was a significant factor in the assessment of the risk posed by the applicant. The court held that the applicant had not provided sufficient evidence to rebut the presumption that he was a risk to the safety of children.

Orders

Orders of the court

(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 31 March 2016 is refused and dismissed.

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.

Citations

AGLC Citation

CTM v Children's Guardian [2016] NSWCATAD 280

Most Recent Citation

CSZ v Children's Guardian [2017] NSWCATAD 57

Cases citing this decision · 33 of 33 shown

Office of the Children's Guardian v EQE
[2022] NSWSC 871 Para 4

…Section 30 (1A) consideration [103] In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 200 5 (Vic), s 13(2)) contains a si…
EQE v Children's Guardian
[2021] NSWCATAD 357 Para 103

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
DVV v Children's Guardian
[2020] NSWCATAD 237 Para 29

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
EHN v Children's Guardian
[2020] NSWCATAD 222 Para 29

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
Ecy v Children's Guardian
[2020] NSWCATAD 212 Para 15

…to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk: see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That is, in this case, where there is a presumption that the applica…
DQL v Children's Guardian
[2020] NSWCATAD 204 Para 24

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
Ejv v Children's Guardian
[2020] NSWCATAD 203 Para 37

…Victorian Supreme Court, under a similar legislative scheme, in regard to the application of s 30(1A) of the WWC Act: see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That approach is one where the matters prescribed in s 30(1A) only n…
ECT v Children's Guardian
[2020] NSWCATAD 185 Para 2

…irst have regard to the factors set out in ss 30(1) and (1A) of the Act. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act…
DYM v Children's Guardian
[2020] NSWCATAD 179 Para 14

…to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk: see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That is, in this case, where there is a presumption that the applica…
EBV v Children's Guardian
[2020] NSWCATAD 180 Para 6

…irst have regard to the factors set out in ss 30(1) and (1A) of the Act. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act…
DTS v Children's Guardian
[2020] NSWCATAD 167 Para 22

…Victorian Supreme Court, under a similar legislative scheme, in regard to the application of s 30(1A) of the WWC Act: see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That approach is one where the matters prescribed in s 30(1A), only…
DVI v Children's Guardian
[2020] NSWCATAD 150 Para 36

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
DYG v Children's Guardian
[2020] NSWCATAD 100 Para 36

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DZF v Children's Guardian
[2020] NSWCATAD 41 Para 82

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DYX v Children's Guardian
[2020] NSWCATAD 45 Para 47

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DVW v Office of the Children's Guardian
[2020] NSWCATAD 33 Para 22

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
DWY v Children's Guardian
[2020] NSWCATAD 34 Para 53

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DQK v Children's Guardian
[2020] NSWCATAD 7 Para 18

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
DYN v Children's Guardian
[2019] NSWCATAD 271 Para 20

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DJF v Children's Guardian
[2019] NSWCATAD 246 Para 25

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DLL v Children's Guardian
[2019] NSWCATAD 232 Para 28

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
DTA v Children's Guardian
[2019] NSWCATAD 144 Para 51

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DMD v Children's Guardian
[2019] NSWCATAD 87 Para 9

…her the applicant has discharged his onus to rebut the presumption that he/she poses a ‘ risk ’ to children): see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. If satisfied as to the issue of ‘ risk ’, the Tribunal must then go on to co…
DQD v Children's Guardian
[2019] NSWCATAD 84 Para 21

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DHZ v Children's Guardian
[2019] NSWCATAD 13 Para 24

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was co…
CXM v NSW Children's Guardian
[2018] NSWCATAD 201 Para 34

…e the issue of risk (i.e. whether we are satisfied that the applicant poses a real and appreciable risk to children): see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. If not satisfied as to risk, the Tribunal must then go on to conside…
DGH v Children's Guardian
[2018] NSWCATAD 130 Para 61

…of the WWC Act and determine the issue of risk (whether the applicant poses a real and appreciable risk to children): see CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. If not satisfied as to risk, the Tribunal must then go on to conside…
CKJ v Children's Guardian
[2018] NSWCATAD 117 Para 26

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
DEW v Children's Guardian
[2018] NSWCATAD 75 Para 28

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90], the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was…
CWW v Children's Guardian
[2018] NSWCATAD 19 Para 23

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
CGR v Children's Guardian
[2017] NSWCATAD 129 Para 47

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
CPH v Children's Guardian
[2017] NSWCATAD 68 Para 38

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
CSZ v Children's Guardian
[2017] NSWCATAD 57 Para 5

…and does not need to be repeated, but significantly the law in relation to section 28 is referred to in the decision CMT v The Children’s Guardian [2016] NSWCATAD 280 and we adopt what is recorded there about the relevant legislative provisions in relation to this application.…

View all 33 citing cases →

Cases cited in this decision · 35 of 35 shown

CFJ v Office of the Children's Guardian
[2016] NSWSC 1625 Para 31

…In CFJ v Office of the Children’s Guardian [2016] NSWSC 1625, at [84] Justice Schmidt found that the Tribunal was correct in its application of the principles previously set out in these reasons.…
Children's Guardian v BQJ
[2016] NSWSC 869 Para 22

…see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].…
CJT v Office of the Children's Guardian
[2016] NSWSC 738 Para 22

…NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].…
SL v Secretary, Department of Family and Community Services
[2016] NSWCA 124 Para 64

…ructive: see T v H , Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes of and the ability to address the risk of further threatening or damaging behaviours expressing the underlyi…
CFT v Children's Guardian
[2016] NSWCATAD 92

…s Guardian v BQJ [2016] NSWSC 869 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 CFT v Children’s Guardian [2016] NSWCATAD 92 CHB v Children’s Guardian [2016] NSWCATAD 21 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR…
Kamareddin v Chief Commissioner of State Revenue
[2016] NSWCATAD 21 Para 4

…It was held in CHB v Children’s Guardian [2016] NSWCATAD 21, at [107]…
BKV v Children's Guardian
[2015] NSWSC 1602

…15] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 N…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 22

…applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738,…
BHY v Children's Guardian
[2015] NSWCATAD 91

…nal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014]…
BKV v Children's Guardian
[2015] NSWCATAD 65

…NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCA…
BHL v Children's Guardian
[2015] NSWCATAD 46

…CATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [20…
BPA v Children's Guardian
[2015] NSWCATAD 36

…] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 C…
BCS v NSW Civil & Administrative Tribunal
[2015] NSWSC 126 Para 28

…aw: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian ; Children’s Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these…
BLD v NSW Office of the Children's Guardian
[2015] NSWCATAD 2

…NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34;…
BKN v Children's Guardian
[2014] NSWCATAD 213

…the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [201…
BKP v Children's Guardian
[2014] NSWCATAD 207

…164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Direct…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164

…v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Childr…
BFX v Children's Guardian
[2014] NSWCATAD 115 Para 15

…However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “ child and young person abuse ” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence is as follows:…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 29

…“ a real and appreciable risk ”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the…
BYR v Children's Guardian
[2013] NSWADT 310 Para 29

…the applicant does pose a risk to children it is accepted that the risk must be “ a real and appreciable risk ”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 94…
ZZ v Secretary, Department of Justice
[2013] VSC 267 Para 88

…) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.…
LA v Commissioner for Children and Young People
[2012] NSWSC 1454

…1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH o…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 33

…the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.…
SS v Department of Human Services (NSW)
[2010] NSWDC 279

…v Secretary, Department of Family and Community Services [2016] NSWCA 124 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 Category: Principal judgment Parti…
Kostas v HIA Insurance Services Pty Ltd
[2010] HCA 32 Para 33

…ut regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and o…
Re Sophie (No 2)
[2009] NSWCA 89

…omm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minis…
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 63

…f Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 Category: Principal judgment Parties: CMT (Applicant) Children’s Guardian (Respondent) Representation: Counsel: L Karp (Re…
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
[2006] HCA 53

…sociation Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 New South Wales Bar Association v Stevens [2003] NSWCA 95 R v Commission for Children and Young People [2002] NSWIRComm 10…
New South Wales Bar Association v Stevens
[2003] NSWCA 95 Para 90

…blic interest to make such an order. The public interest is to be given significant weight: see for example New South Wales Bar Association v Stevens [2003] NSWCA 95.…
Commission for Young People v V
[2002] NSWSC 949 Para 29

…0, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].…
M v M
[1988] HCA 68

…Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CL…
Collector of Customs (Tas) v Flinders Island Community Association
[1985] FCA 273

…ce of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977…
Briginshaw v Briginshaw
[1938] HCA 34

…ctor-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 CFJ v Office of the Children’s Guardian…
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott
[1933] HCA 30

…d a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).…
R v Commission for Children and Young People
[2002] NSWIRCOMM 101

…NSWLR 173 New South Wales Bar Association v Stevens [2003] NSWCA 95 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 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SL v Secretary, Departmen…

Legislation cited in this decision · 12

Child Protection (Working with Children) Act 2012 (NSW)
2 mentions (from Para 1)
Administrative Decisions Review Act 1997 (NSW)
1 mention
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 25)
Child Protection Legislation Amendment Act 2015 (NSW)
1 mention (from Para 3)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention (from Para 15)
Civil and Administrative Rules 2014 (NSW)
1 mention (from Para 33)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 6)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 58)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 22)
Family Law Act 1975 (Cth)
1 mention (from Para 17)
Interpretation Act 1987 (NSW)
1 mention

Medium Neutral Citation:	CMT v Children’s Guardian [2016] NSWCATAD 280
Hearing dates:	12 August 2016
Date of orders:	29 November 2016
Decision date:	29 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member A Jones, General Member
Decision:	(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 31 March 2016 is refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW- Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under section 63 of the Crimes Act 1900 (NSW) for assault with intent to rape - assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children -Tribunal not bound by the rules of evidence - onus of proof- onus of proof not discharged by applicant- enabling order refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWSC 1602 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 CFT v Children’s Guardian [2016] NSWCATAD 92 CHB v Children’s Guardian [2016] NSWCATAD 21 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA…