CXZ v Children's Guardian - [2018] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CXZ v Children’s Guardian [2018] NSWCATAD 36
Hearing dates: 29 June 2017, 9 October 2017, 10 October 2017, 10 November 2017
Date of orders: 14 February 2018
Decision date: 14 February 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
R Royer, General Member
Decision:
1. The decision of the respondent dated 2 December 2016 to refuse to grant the applicant a working with children check clearance is set aside.
2. In substitution for that decision, the following decision is made: The applicant is granted a working with children check clearance.
Catchwords: ADMINISTRATIVE LAW – Child protection – Working with children - Whether the applicant poses a risk to the safety of children – Assessment of risk - Findings in respect of criminal allegations –- No presumption of risk.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Security Industry Act 1997
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties:
CXZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:

J Macdonald (Respondent)

Solicitors:

Carson & Associates (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/23607
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS for Decision

Introduction

The applicant applied for a working with children check clearance on 1 October 2014 to enable him to work in hospitals as a security officer and to support his son in his sporting career.
After having conducted a risk assessment for the applicant, the Children’s Guardian, who is the respondent in this matter, refused to grant him such a clearance. The trigger for the risk assessment was a murder charge laid against the applicant in 1996, for which he was acquitted the following year.
The application for review of the decision by the Children’s Guardian to refuse the applicant a working with children check clearance was lodged within time and there is no dispute that the NSW Civil and Administrative Tribunal (‘the Tribunal’) has jurisdiction to hear and determine the application.
At the hearing held before the Tribunal, documentary evidence was filed by both parties and the applicant gave oral evidence, as did the psychiatrist engaged by the applicant, Dr Matthew Jones, and the psychiatrist engaged by the Children’s Guardian, Dr Stephen Allnutt.
For the reasons that follow, we have decided that the decision of the Children’s Guardian should be set aside and that the applicant should be granted a working with children check…

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 36
Decision Date: 14 February 2018

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, CXZ brought proceedings against the Children's Guardian challenging the decision to refuse to grant him a working with children check clearance. The applicant sought to engage in activities involving children, and the refusal to grant the clearance was based on concerns about his suitability to work with children. The applicant contested the decision, arguing that it was not supported by the evidence and that the Children's Guardian had not properly considered the information before them.

The central issue before the court was whether the decision to refuse the working with children check clearance was lawful. The court needed to consider whether the decision-maker had acted irrationally, whether the decision-maker had failed to take into account relevant considerations, and whether there was evidence to support the decision that the applicant posed a risk to the safety of children. Additionally, the court had to assess whether the Children's Guardian had applied the correct legal principles in reaching their conclusion.

The court found that the decision to refuse the working with children check clearance was not supported by the evidence. The Children's Guardian had not adequately considered all the information before them and had failed to properly weigh the evidence. The court held that there was no basis for a presumption of risk simply because of criminal allegations. The court found that the decision-maker had not correctly applied the relevant legal principles and had not made findings of fact supported by the evidence. Consequently, the court set aside the decision and substituted it with a decision granting the applicant a working with children check clearance.

The orders of the court were that the decision of the Children's Guardian dated 2 December 2016 to refuse to grant the applicant a working with children check clearance be set aside. In its place, the court granted the applicant a working with children check clearance, finding that the original decision was not supported by the evidence and that the Children's Guardian had not properly considered all the relevant information.

Orders

Orders of the court

1. The decision of the respondent dated 2 December 2016 to refuse to grant the applicant a working with children check clearance is set aside.

2. In substitution for that decision, the following decision is made: The applicant is granted 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:	CXZ v Children’s Guardian [2018] NSWCATAD 36
Hearing dates:	29 June 2017, 9 October 2017, 10 October 2017, 10 November 2017
Date of orders:	14 February 2018
Decision date:	14 February 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member R Royer, General Member
Decision:	1. The decision of the respondent dated 2 December 2016 to refuse to grant the applicant a working with children check clearance is set aside. 2. In substitution for that decision, the following decision is made: The applicant is granted a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – Child protection – Working with children - Whether the applicant poses a risk to the safety of children – Assessment of risk - Findings in respect of criminal allegations –- No presumption of risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Security Industry Act 1997
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CXZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Macdonald (Respondent) Solicitors: Carson & Associates (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/23607
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.