CWW v Children's Guardian - [2018] NSWCATAD 19

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CWW v Children’s Guardian [2018] NSWCATAD 19
Hearing dates: 25 October 2017
Date of orders: 22 January 2018
Decision date: 22 January 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Dr B Field, General Member
Decision:
1. The respondent’s decision made on 16 November 2016 to refuse the applicant’s application for a working with children check clearance is set aside.
2. In substitution for that decision a decision is made to grant the applicant with a working with children check clearance.
Catchwords: ADMINISTRATIVE REVIEW – review of a decision by the respondent to refuse the applicant’s application for a working with children check clearance – in July 2014 the applicant was charged with a disqualifying offence (sexual intercourse without consent) – seven weeks after the alleged offence, the victim, the applicant’s partner, gave a statement to police retracting her earlier evidence of an alleged sexual assault – police withdrew the charge – s 30(1) risk assessment as to whether the applicant poses a real and appreciable risk to the safety of children – Tribunal not satisfied the applicant poses a risk to the safety of children and also satisfied of the matters in s 30(1A) of the Child Protection (Working with Children) Act 2013.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012
Children and Young Persons (Care and Protection) Act (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
CTM v Children’s Guardian [2016] NSWCATAD 280
Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59
FZ v Commissioner for Children and Young People [2010] NSWSC 1144
Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162
M v M [1988] HCA 68; (1988) 166 CLR 69
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: CWW (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
L Andelman for the Applicant
G Moore for the Respondent
Solicitors:
NSW Legal Aid
Office of the NSW Crown Solicitor

File Number(s): 2016/00380437
Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal…

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: [2018] NSWCATAD 19
Decision Date: 22 January 2018

CaseChat Overview and Summary

The case involved CWW who sought a working with children check clearance, which was refused by the Children’s Guardian. CWW sought judicial review of this decision, claiming it was unreasonable. The dispute centred on a charge of sexual intercourse without consent brought against CWW in July 2014, which was later withdrawn after the victim retracted her statement. The Guardian argued that CWW posed a risk to the safety of children, while CWW contended that the decision was unreasonable due to the withdrawal of the charge and the victim’s retraction.

The primary legal issues revolved around whether the Guardian’s decision was unreasonable in light of the withdrawn charge and the victim’s retraction. The court had to determine whether the Guardian had correctly applied the relevant provisions of the Child Protection (Working with Children) Act 2013, specifically section 30(1), which concerns the risk assessment of the applicant’s potential to harm children, and section 30(1A), which details specific matters to consider in such assessments.

The court found that the Guardian had not adequately considered all relevant information, including the retraction of the victim’s statement. The court determined that the Guardian's decision was unreasonable because it failed to account for the victim's retraction and the subsequent withdrawal of the charge. The court concluded that the Guardian had not correctly applied the statutory criteria and that the decision was not supported by the evidence. Consequently, the court set aside the Guardian’s decision and ordered that CWW be granted a working with children check clearance.

Orders

Orders of the court

1. The respondent’s decision made on 16 November 2016 to refuse the applicant’s application for a working with children check clearance is set aside.

2. In substitution for that decision a decision is made to grant the applicant with 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:	CWW v Children’s Guardian [2018] NSWCATAD 19
Hearing dates:	25 October 2017
Date of orders:	22 January 2018
Decision date:	22 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member Dr B Field, General Member
Decision:	1. The respondent’s decision made on 16 November 2016 to refuse the applicant’s application for a working with children check clearance is set aside. 2. In substitution for that decision a decision is made to grant the applicant with a working with children check clearance.
Catchwords:	ADMINISTRATIVE REVIEW – review of a decision by the respondent to refuse the applicant’s application for a working with children check clearance – in July 2014 the applicant was charged with a disqualifying offence (sexual intercourse without consent) – seven weeks after the alleged offence, the victim, the applicant’s partner, gave a statement to police retracting her earlier evidence of an alleged sexual assault – police withdrew the charge – s 30(1) risk assessment as to whether the applicant poses a real and appreciable risk to the safety of children – Tribunal not satisfied the applicant poses a risk to the safety of children and also satisfied of the matters in s 30(1A) of the Child Protection (Working with Children) Act 2013.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 Children and Young Persons (Care and Protection) Act (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CTM v Children’s Guardian [2016] NSWCATAD 280 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	CWW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Andelman for the Applicant G Moore for the Respondent Solicitors: NSW Legal Aid Office of the NSW Crown Solicitor
File Number(s):	2016/00380437
Publication restriction:	Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal…