CXH v Children's Guardian - [2017] NSWCATAD 344

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CXH v Children’s Guardian [2017] NSWCATAD 344
Hearing dates: 6 June 2017, Submissions closed 18/7/2017
Date of orders: 28 November 2017
Decision date: 28 November 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Bolt, General Member
Decision:
(1) The decision of the respondent dated 30 November 2016 to refuse the applicant’s Working with Children Check clearance is affirmed.

Catchwords: CHILD Protection – Working with children – Criminal history – Offences of violence – Extensive history – Period of time since offences – Conceded findings – Requirement for clearance - Exemption
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998(Repealed)
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Evidence Act 1995
Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 111
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
R v Commission for Children and Young People [2002] NSWIRComm 101
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Children’s Guardian v CKF [2017] NSWSC 893
BKE v Children’s Guardian [2015] NSWSC 523
M v M (1988) 166 CLR (HCA)
Texts Cited: Nil
Category: Principal judgment
Parties: CXH (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
N/A (Applicant)
A Douglas-Baker (Respondent)
Solicitors:
Self represented (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00002860
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication 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

On 8 December 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a working with children check clearance. That decision was made on 30 November 2016.
The Applicant in these proceedings is referred to as "CXH". CXH is the applicant's pseudonym used in these proceedings in conformity with the order referred to in paragraph 4 (below).
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, (the Act), the Tribunal finds that the applicant is currently a real and appreciable risk to the…

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 344
Decision Date: 28 November 2017

CaseChat Overview and Summary

CXH sought a review of a decision by the Children's Guardian to refuse their application for a Working with Children Check clearance. The applicant had an extensive history of convictions for offences of violence, including sexual offences, dating back to 1985. Despite the length of time since the last offence, the Guardian refused the clearance due to the nature and gravity of the offences. The applicant argued that the refusal was unreasonable and discriminatory. The court was required to determine whether the Guardian's decision was lawful, reasonable, and in accordance with the relevant legislative provisions.

The court examined the statutory framework governing Working with Children Check clearances, including the need to protect children from harm and the criteria for assessing applications. The court considered the nature and gravity of the applicant's criminal history, the time elapsed since the last offence, and the likelihood of re-offending. The court also assessed whether the Guardian's decision was discriminatory and whether there were any procedural errors. The applicant argued that the refusal was unjust and that they had demonstrated rehabilitation and posed no risk to children. However, the court found that the Guardian's decision was based on a comprehensive assessment of the risks and was not arbitrary or unreasonable.

The court concluded that the Guardian's decision to refuse the Working with Children Check clearance was lawful, reasonable, and in accordance with the statutory requirements. The court found that the applicant's extensive history of violent and sexual offences, even if committed many years ago, justified the Guardian's decision. The court also found that the Guardian had considered all relevant factors and had not acted unreasonably or discriminatory. The court held that the Guardian's assessment of the risks posed by the applicant was well-founded and that the clearance refusal was appropriate in the circumstances. The application for review was dismissed, and the decision of the Guardian was affirmed.

Orders

Orders of the court

(1) The decision of the respondent dated 30 November 2016 to refuse the applicant’s Working with Children Check clearance is affirmed.

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:	CXH v Children’s Guardian [2017] NSWCATAD 344
Hearing dates:	6 June 2017, Submissions closed 18/7/2017
Date of orders:	28 November 2017
Decision date:	28 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The decision of the respondent dated 30 November 2016 to refuse the applicant’s Working with Children Check clearance is affirmed.
Catchwords:	CHILD Protection – Working with children – Criminal history – Offences of violence – Extensive history – Period of time since offences – Conceded findings – Requirement for clearance - Exemption
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Evidence Act 1995
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 BKE v Children’s Guardian [2015] NSWSC 523 M v M (1988) 166 CLR (HCA)
Texts Cited:	Nil
Category:	Principal judgment
Parties:	CXH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: N/A (Applicant) A Douglas-Baker (Respondent) Solicitors: Self represented (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00002860
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication 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.