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 MemberDecision: (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 clearanceCatchwords: 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 267Category: Principal judgment Parties: CVE (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Ms L Andelman (Applicant )
Solicitors:
Ms V Hartstein (Respondent)
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
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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…
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- Case
- [2017] NSWCATAD 371
- Decision Date
CaseChat Overview and Summary
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
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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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