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
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…
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
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.