CXQ v Children's Guardian - [2018] NSWCATAD 70

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CXQ v Children’s Guardian [2018] NSWCATAD 70
Hearing dates: 15 September and 14 December 2017
Date of orders: 27 March 2018
Decision date: 27 March 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Grant, Senior Member
S Davison, General Member
Decision:
The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – reports of child abuse and children at risk made to the department - whether applicant poses a risk to the safety of children – assessment of risk – correct and preferable decision
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes Act 1900
Cases Cited: BHA v Children’s Guardian [2014] NSWCATAD 161
BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111
BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264
Commission for Children and Young People v V (2002) NSWSC 949
Category: Principal judgment
Parties: CXQ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
Randall Legal (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00017536
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

The applicant, who is known in these proceedings as ‘CXQ’, is a 48-year-old woman. In early 2012 she volunteered to be the foster carer for her niece and two nephews, as the children were at risk in the care of their birth parents. CXQ had no children of her own and no previous experience as a carer. The children were placed in her care from April 2012 until March 2015. During this time, there were numerous risk of harm reports concerning the 3 children. The supervising agency eventually removed the children from her care and she was subsequently de-authorised as a kinship carer. The Ombudsman notified the Children’s Guardian of the risk of harm reports and, on 15 July 2016, the Children’s Guardian decided to cancel her Working with Children Check Clearance (‘clearance’). She had previously obtained a clearance in April 2014 as part of the process of her approval as…

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 70
Decision Date: 27 March 2018

CaseChat Overview and Summary

CXQ sought judicial review of a decision by the Children’s Guardian to refuse them a working with children check clearance. The Guardian had been presented with reports of child abuse and children at risk, which implicated CXQ. The court was required to determine whether the Guardian's decision was legally sound, focusing on whether it was based on a proper assessment of the risk that CXQ posed to the safety of children.

The court examined the statutory framework governing the issuance of working with children check clearances and the Children’s Guardian's role in assessing risk. It assessed whether the Guardian had correctly interpreted and applied the relevant legislation in making their decision. The court considered the evidence provided to the Guardian and whether it supported the conclusion that CXQ posed a risk to children. The court also evaluated the process followed by the Guardian in making their decision, ensuring it was procedurally fair and did not contain any errors of law.

The court found that the Children’s Guardian had properly exercised their discretion under the relevant legislation. The evidence presented to the Guardian was sufficient to support the conclusion that CXQ posed a risk to children. The process followed by the Guardian was procedurally fair, and no errors of law were identified. Therefore, the court affirmed the decision of the Children’s Guardian to refuse CXQ a working with children check clearance.

Orders

Orders of the court

The decision of the Children’s Guardian to refuse the applicant a 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:	CXQ v Children’s Guardian [2018] NSWCATAD 70
Hearing dates:	15 September and 14 December 2017
Date of orders:	27 March 2018
Decision date:	27 March 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member S Davison, General Member
Decision:	The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – reports of child abuse and children at risk made to the department - whether applicant poses a risk to the safety of children – assessment of risk – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	BHA v Children’s Guardian [2014] NSWCATAD 161 BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Commission for Children and Young People v V (2002) NSWSC 949
Category:	Principal judgment
Parties:	CXQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Randall Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00017536
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.