CVE v Children's Guardian (No. 2) - [2017] NSWCATAD 371

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CVE v Children’s Guardian (No. 2) [2017] NSWCATAD 371
Hearing dates: 21 November 2017
Date of orders: 19 December 2017
Decision date: 19 December 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 – rehearing of application after Supreme Court appeal and remitted to the Tribunal – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a real and appreciable risk to the safety of children
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998
Civil and Administrative Tribunal Act 2013
Working with Children Act 2005 (Vic)
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
CHB v Children’s Guardian [2016] NSWCATAD 214
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
CSO v Children’s Guardian [2017] NSWCATAD 346
CSW v Children’s Guardian [2017] NSWCATAD 326
CYY v Children’s Guardian [2017] NSWCATAD 262 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
MH v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514
PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
ZZ v Secretary, Department of Justice [2013] VSC 267
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

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…

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.

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Details

Case: [2017] NSWCATAD 371
Decision Date: 19 December 2017

CaseChat Overview and Summary

CVE sought a working with children check clearance, which was refused by the Children's Guardian. This refusal led to a review by the Tribunal under the Child Protection (Working with Children) Act 2012 (NSW). The case returned to the Tribunal following an appeal to the Supreme Court, which had set aside the Tribunal's original decision and remitted the matter back for reconsideration. The central issue before the Tribunal was to determine whether the applicant posed a real and appreciable risk to the safety of children, thereby justifying the continued refusal of the clearance.

The Tribunal examined the evidence presented to the Guardian at the time of the original decision and the additional information provided during the rehearing. It was required to weigh the risks against the applicant's rights and the likelihood of the risks materialising. The key consideration was whether the applicant's past conduct, if any, indicated a potential threat to children, and whether this threat was significant enough to warrant a denial of the clearance. The Tribunal also had to ensure its decision aligned with the legislative framework and relevant case law.

Upon reviewing all the material, the Tribunal found that the evidence did not sufficiently support a real and appreciable risk to the safety of children. The Tribunal concluded that the Guardian's initial decision was not supported by the evidence provided. Therefore, the Tribunal set aside the Guardian's decision and granted the applicant a Working with Children Check clearance, substituting its decision in place of the original refusal. This decision was made in accordance with the principles of administrative law and the statutory requirements under the Child Protection Act.

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

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.

Medium Neutral Citation:	CVE v Children’s Guardian (No. 2) [2017] NSWCATAD 371
Hearing dates:	21 November 2017
Date of orders:	19 December 2017
Decision date:	19 December 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 – rehearing of application after Supreme Court appeal and remitted to the Tribunal – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a real and appreciable risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013 Working with Children Act 2005 (Vic)
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 CHB v Children’s Guardian [2016] NSWCATAD 214 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 CSO v Children’s Guardian [2017] NSWCATAD 346 CSW v Children’s Guardian [2017] NSWCATAD 326 CYY v Children’s Guardian [2017] NSWCATAD 262 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 MH v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514 PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 ZZ v Secretary, Department of Justice [2013] VSC 267
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