Cyi v Children's Guardian - [2017] NSWCATAD 357

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CYI v Children’s Guardian [2017] NSWCATAD 357
Hearing dates: 16 June, 29 August 2017
Date of orders: 01 December 2017
Decision date: 01 December 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
M Bolt, General Member
Decision:
1) The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) which was filed on 10 February 2017 is refused and dismissed.
2) 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 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.
Catchwords: Administrative law – working with children – disqualified person – Working With Children Check clearance - application for enabling order – presumption of risk to children unless applicant proves to the contrary - no risk assessment report – whether applicant engaged in child-related work - order not granted.
Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014.
Crimes Act 1900 (NSW)
Cases Cited: BGX v Children's Guardian [2014] NSWCATAD 173 BKE v Office of Children’s Guardian [2015] NSWSC 523
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSW 111
Commission for Children and Young People v V [2002] NSW SC 949
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: CYI (applicant)
Children’s Guardian (respondent)
Representation:
Counsel:
M Giacomo (respondent)
Solicitors:
Applicant in person
Crown Solicitor’s Office (respondent)

File Number(s): 2017/00043472
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 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

Introduction

The applicant applied for a Working With Children Check clearance on 13 December 2016. His application was refused by the Children’s Guardian on the 7 February 2017 on the basis that he is a disqualified person under s18 of the Child Protection (Working with Children) Act 2012 (‘the Act’).
The disqualifying offence was his conviction in 1997 for indecent assault pursuant to s61L of the Crimes Act 1900(NSW).
On 10 February…

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 357
Decision Date: 01 December 2017

CaseChat Overview and Summary

The case of Cyi v Children's Guardian involved an applicant, referred to as Cyi, who sought an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). Cyi, who was previously disqualified from engaging in child-related work due to criminal convictions, applied for a Working With Children Check clearance. The application was made on 10 February 2017, and the Children's Guardian opposed it on the basis that Cyi posed a risk to children unless proven otherwise. The primary legal issue the court had to decide was whether the applicant had demonstrated that they did not pose a risk to children, given the absence of a risk assessment report and uncertainty about whether Cyi had been involved in child-related work.

The court examined the statutory framework of the Child Protection (Working with Children) Act 2012 (NSW), which establishes a presumption that a disqualified person poses a risk to children unless the contrary is proven. The court assessed Cyi's application against this presumption, considering the lack of a risk assessment report and the uncertainty regarding Cyi's involvement in child-related work. The court held that Cyi had not discharged the onus of proving, on the balance of probabilities, that they did not pose a risk to children. Consequently, the application for an enabling order was dismissed.

The court's reasoning was that without a risk assessment report, there was insufficient evidence to rebut the presumption that Cyi posed a risk to children. Furthermore, the court noted the importance of child safety and the need for stringent standards in granting clearances to individuals with a history of disqualifying criminal convictions. Given these considerations, the application was refused and dismissed. Additionally, the court imposed an order prohibiting the publication or broadcast of the names of any persons mentioned in the proceedings, except for expert witnesses and officers of government agencies, to protect the identities of those involved.

Orders

Orders of the court

1) The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) which was filed on 10 February 2017 is refused and dismissed.

2) 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 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.

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:	CYI v Children’s Guardian [2017] NSWCATAD 357
Hearing dates:	16 June, 29 August 2017
Date of orders:	01 December 2017
Decision date:	01 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member M Bolt, General Member
Decision:	1) The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) which was filed on 10 February 2017 is refused and dismissed. 2) 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 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.
Catchwords:	Administrative law – working with children – disqualified person – Working With Children Check clearance - application for enabling order – presumption of risk to children unless applicant proves to the contrary - no risk assessment report – whether applicant engaged in child-related work - order not granted.
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014. Crimes Act 1900 (NSW)
Cases Cited:	BGX v Children's Guardian [2014] NSWCATAD 173 BKE v Office of Children’s Guardian [2015] NSWSC 523 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSW 111 Commission for Children and Young People v V [2002] NSW SC 949 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CYI (applicant) Children’s Guardian (respondent)
Representation:	Counsel: M Giacomo (respondent) Solicitors: Applicant in person Crown Solicitor’s Office (respondent)
File Number(s):	2017/00043472
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 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.