CXZ v Children's Guardian

Case [2020] NSWCA 338


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: CXZ v Children’s Guardian [2020] NSWCA 338
Hearing dates: 12 May 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Before: Basten JA at [1];
McCallum JA at [28];
Simpson AJA at [31]
Decision:

1.   Leave granted to appeal against the orders of 4 September 2019;

2.   Appeal allowed;

3.   Orders of the Supreme Court of 4 September 2019 set aside;

4.   The respondent to pay the applicant’s costs of these proceedings.

Catchwords:

APPEALS — Application for leave to appeal — principles to be applied in determining whether a person poses a risk to the safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) – application of principles stated in M v M – whether allegations are to be assessed by three-step process – whether lingering doubt to count against applicant – whether Tribunal failed to consider accumulated weight of allegations – held, issue of principle raised – leave to appeal granted

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 6, 8, 12, 13, 14, 15, 17, 18, 20, 27, 30, 63

Children’s Guardian Act 2019 (NSW), s 115

Civil and Administrative Tribunal Act 2013 (NSW), Sch 3

Family Law Act 1975 (Cth)

Supreme Court Act 1970 (NSW), s 101(2)(r)

Cases Cited:

Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72

Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164

BKE v Office of Children’s Guardian [2015] NSWSC 523

Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

CFJ v Office of Children’s Guardian [2016] NSWSC 1625

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

Children’s Guardian v CKF [2017] NSWSC 893

Children’s Guardian v CXZ [2019] NSWSC 1083

CXZ v Children’s Guardian [2018] NSWCATAD 36

DAR v Children’s Guardian [2018] NSWSC 942

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2

M v M (1988) 166 CLR 69; [1988] HCA 68

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

The Age Company v Liu [2013] NSWCA 26

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Tilley v Children’s Guardian [2017] NSWCA 174

Category:Principal judgment
Parties: CXZ (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
C Webster SC/L Andelman (Applicant)
P Singleton (Respondent)

Solicitors:
Craig Milne & Company (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2019/292994
 Decision under appeal 
Court or…

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AGLC
CXZ v Children's Guardian [2020] NSWCA 338
Case
[2020] NSWCA 338
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the Court of Appeal of New South Wales. The applicant, CXZ, sought leave to appeal against orders made by the Supreme Court concerning the assessment of risk to children under section 18 of the *Child Protection (Working with Children) Act 2012* (NSW). The respondent was the Children's Guardian.

The central legal issue before the Court of Appeal was whether the Supreme Court had correctly applied the principles for determining whether a person poses a risk to the safety of children. Specifically, the Court was required to consider whether the allegations against the applicant should have been assessed through a three-step process, whether any lingering doubt should weigh against the applicant, and whether the Tribunal had failed to consider the accumulated weight of the allegations. The Court identified that an issue of principle was raised by these questions.

The Court of Appeal granted leave to appeal, finding that the issues raised were of sufficient importance to warrant appellate consideration. The appeal was subsequently allowed, and the orders of the Supreme Court made on 4 September 2019 were set aside. The respondent was ordered to pay the applicant's costs of the proceedings.

Orders

Orders of the court

1. Leave granted to appeal against the orders of 4 September 2019;

2. Appeal allowed;

3. Orders of the Supreme Court of 4 September 2019 set aside;

4. The respondent to pay the applicant’s costs of these proceedings.

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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