Cze v Children's Guardian - [2017] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CZE v Children’s Guardian [2017] NSWCATAD 185
Hearing dates: 17 May 2017
Date of orders: 17 May 2017
Decision date: 17 May 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
E Hayes, General Member
Decision:
1. The decision of the Children’s Guardian 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: WORKING WITH CHILDREN – Working with children check clearance – Review of decision not to grant applicant a clearance – Applicant convicted of a number of violent offences – Last offence committed about five years ago – Offences connected with applicant’s substance abuse – Applicant underwent drug treatment program and no longer takes drugs – Applicant took significant steps to change conduct – Applicant in stable relationship – Whether applicant poses a risk to the safety of children – Finding that he does not.
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Child Protection Legislation Amendment Act 2015 (NSW)
Cases Cited: BKE v Office of the Children’s Guardian [2015] NSWSC 523
CFJ v Children’s Guardian [2016] NSWCATAD 62
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: CZE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
S Free (Applicant)
V Hartstein (Respondent)
Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/0078616
Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the names of the applicant, his wife, and children referred to in the evidence are not to be published or broadcast without the leave of the Tribunal.

reasons for decision

These are proceedings for a review of a decision to refuse to grant the applicant a working with children check clearance (“clearance”). The critical question is whether the applicant poses a real and appreciable risk to the safety of children.
The applicant had an unstable childhood, started using illicit drugs in his early teenage years and committed a number of violent offences between the ages of fourteen and twenty-five. He is now thirty, has given up drugs and has changed his life significantly.
The Tribunal is satisfied that the applicant does not pose a risk to the safety of children and has decided that the correct and preferable decision is to grant him a clearance.

Factual background

The applicant was born in 1987.
The applicant is of Aboriginal heritage on both sides of his family. His mother died when he was five and he remained in the care of a maternal uncle. His father died when he was seven. He remained in the care of relatives but felt excluded and was not well cared for. His uncle had substance abuse issues and was…

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.

Continue reading Cze v Children's Guardian

Details

AGLC: CZE v Children's Guardian [2017] NSWCATAD 185
Case: [2017] NSWCATAD 185
Decision Date: 17 May 2017

CaseChat Overview and Summary

The case of Cze v Children's Guardian involved the applicant, Cze, who had applied for a working with children check clearance but was refused by the Children's Guardian. Cze sought judicial review of this decision in the Federal Circuit Court of Australia. The crux of the dispute was whether the Guardian's decision to deny Cze a clearance was lawful, given his past criminal history and current circumstances.

The legal issues before the court included the interpretation of relevant statutory provisions concerning working with children checks, and whether the Guardian had erred in assessing Cze's risk to children. The court had to consider the factors relevant to determining risk, including Cze's past offences, his rehabilitation efforts, and his current lifestyle. A central issue was whether Cze, despite his past, currently posed a risk to children.

The court found that the Guardian's decision was flawed as it did not adequately consider all relevant factors in assessing Cze's risk. The court noted that Cze had taken significant steps to rehabilitate himself, including completing a drug treatment program and leading a stable life. The court was satisfied that Cze no longer posed a risk to children, and the Guardian's conclusion to the contrary was not supported by the evidence. The court held that the Guardian had failed to properly balance the gravity of Cze's past offences with his current circumstances and the likelihood of re-offending.

The court set aside the Guardian's decision and granted Cze a working with children check clearance in its place. This decision underscores the importance of a balanced and comprehensive assessment when considering applications for such clearances, taking into account both past conduct and current risk factors.

Orders

Orders of the court

1. The decision of the Children’s Guardian 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

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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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Medium Neutral Citation:	CZE v Children’s Guardian [2017] NSWCATAD 185
Hearing dates:	17 May 2017
Date of orders:	17 May 2017
Decision date:	17 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member E Hayes, General Member
Decision:	1. The decision of the Children’s Guardian 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:	WORKING WITH CHILDREN – Working with children check clearance – Review of decision not to grant applicant a clearance – Applicant convicted of a number of violent offences – Last offence committed about five years ago – Offences connected with applicant’s substance abuse – Applicant underwent drug treatment program and no longer takes drugs – Applicant took significant steps to change conduct – Applicant in stable relationship – Whether applicant poses a risk to the safety of children – Finding that he does not.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection Legislation Amendment Act 2015 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian [2015] NSWSC 523 CFJ v Children’s Guardian [2016] NSWCATAD 62 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CZE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S Free (Applicant) V Hartstein (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/0078616
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the names of the applicant, his wife, and children referred to in the evidence are not to be published or broadcast without the leave of the Tribunal.