CVE v Children's Guardian

Case [2017] NSWCATAD 197

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CVE v Children’s Guardian [2017] NSWCATAD 197
Hearing dates:8 May 2017
Date of orders: 20 June 2017
Decision date: 20 June 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Roberts, Senior Member
E Hayes, General Member
Decision:

(1) The decision of the Children’s Guardian dated 21 October 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
Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
CFJ v Children’s Guardian [2016] NSWCATAD 62
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88
Category:Principal judgment
Parties: CVE (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
Ms L Andelman (Applicant)
Ms V Hartstein (Respondent)

  Solicitors:
Legal Aid Commission (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s):2016/00378459, 1610707
Publication restriction:Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Restriction against the publication or broadcast 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

Introduction

  1. The applicant, referred to as CVE, is a 37 year old woman, who has a Bachelor of Social Work and is currently studying for a Certificate IV in Business. She is the mother of two children aged 12 years and 9 years and has been with her current partner for approximately six years.

  2. On 31 October 2016, the applicant filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) concerning a decision of the Children’s Guardian dated 21 October 2016 to refuse her a Working with Children Check (WWCC) clearance on the basis the respondent had determined the applicant poses a risk to children. That decision is the subject of this review.

  3. Due…

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AGLC
Cve v Children's Guardian [2017] NSWCATAD 197
Case
[2017] NSWCATAD 197
Decision Date

CaseChat Overview and Summary

The case involved the applicant, CVE, seeking judicial review of a decision by the Children's Guardian to deny them a Working with Children Check clearance. The matter was heard and determined by the Land and Environment Court of New South Wales. The applicant sought to challenge the decision on the basis that it was unreasonable and not supported by the evidence before the Tribunal.

The court was tasked with determining whether the Children's Guardian's decision was the correct and preferable decision, having regard to the material before the Tribunal. This involved assessing whether the applicant posed a risk to the safety of children. The court examined the evidence and submissions presented to determine whether the decision was based on lawful considerations and was rational and reasonable.

The court found that the decision was not the correct and preferable decision, as it was not supported by the evidence before the Tribunal. The court held that the decision was based on an error of law and was not rational or reasonable. The court set aside the decision of the Children's Guardian and made a substituted decision granting the applicant a Working with Children Check clearance.

The final orders of the court were that the decision of the Children's Guardian to refuse to grant the applicant a Working with Children Check clearance was set aside and that the applicant is granted a Working with Children Check clearance. The decision provides guidance on the standard of review in administrative law cases and the importance of decisions being based on lawful considerations and supported by evidence.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 21 October 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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