Efh v Children's Guardian - [2020] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EFH v Children’s Guardian [2020] NSWCATAD 256
Hearing dates: 8 July 2020, 9 September 2020
Date of orders: 21 October 2020
Decision date: 21 October 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
F Given, General Member
Decision:
The decision of the Children’s Guardian is affirmed.

Catchwords:
ADMINISTRATIVE LAW – Child Protection – Working with children check clearance – Where respondent refused application for clearance – Where applicant found not guilty of indecent assault of a child – Whether applicant poses a risk to the safety of children

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)

Cases Cited:
CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Reed v R [2006] NSWCCA 314

Texts Cited:
None cited

Category: Principal judgment
Parties: EFH (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
D Kaiti (Applicant)
M Giacomo (Respondent)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2019/00403474
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 pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

This was an application for a review of a decision of the Children’s Guardian refusing the applicant’s application for a working with children check clearance.
The central issue in this case was whether the applicant, a flute teacher, indecently assaulted a twelve year old student during the course of her lesson. He was found not guilty of indecent assault charges relating to the alleged incident.
We have found that it is more likely than not that the applicant did indecently assault his student in the way she claimed. He has not expressed any remorse and continues to deny that the incident occurred.
In these circumstances, we are satisfied that the applicant poses a risk to the safety of children. Accordingly, we have affirmed the decision of the Children’s Guardian.

Background

In 2016, the applicant was charged with two counts of indecent assault of a person under the age of 16 years pursuant to s 61M(2) of the Crimes Act 1900 (NSW).
On 14 July 2016, the Children’s Guardian cancelled the applicant’s working with children check clearance.
On 28 February 2018, following a four-day hearing of the criminal charges against the applicant, the charges were dismissed.
On 23 March 2018, the applicant applied for a working with children check clearance. The application was refused on 5 December 2019. The applicant applied for a review of that decision on 23 December 2019.

Relevant law

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Child Protection (Working with Children) Act 2012 (NSW) (s 4).
The applicant…

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 Efh v Children's Guardian

Details

AGLC: EFH v Children's Guardian [2020] NSWCATAD 256
Case: [2020] NSWCATAD 256
Decision Date: 21 October 2020

CaseChat Overview and Summary

The case of Efh v Children's Guardian concerns an application by the applicant, Efh, seeking a working with children check clearance from the respondent, the Children’s Guardian. Efh sought the clearance in order to continue working with children. The refusal of the clearance application by the Guardian led to this judicial review. The primary issue before the court was whether the Guardian was correct in refusing the clearance given that Efh had been found not guilty of the charge of indecent assault of a child. The court had to consider the criteria the Guardian used in making the decision, particularly whether Efh posed a risk to the safety of children.

The court examined the statutory framework within which the Guardian operates and the discretion afforded to the Guardian in making such decisions. The court held that the Guardian had the authority to consider the applicant's past conduct and the potential risk to children when making a decision about a working with children check clearance. The court noted that while the applicant's acquittal on the indecent assault charge was a significant factor, it was not determinative of the risk assessment. The court further held that the Guardian was entitled to consider other factors, including the nature of the offence and its relevance to the applicant's suitability to work with children.

In affirming the Guardian's decision, the court found that the Guardian had exercised the discretion conferred upon them appropriately and that the decision was not unlawful. The court held that the Guardian was entitled to conclude that, despite the applicant's acquittal, there remained a risk to the safety of children based on the nature of the offence and other relevant factors. Consequently, the court dismissed the application for judicial review and affirmed the decision of the Children's Guardian.

Orders

Orders of the court

The decision of the Children’s Guardian is affirmed.

Background

Background to the litigation

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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:	EFH v Children’s Guardian [2020] NSWCATAD 256
Hearing dates:	8 July 2020, 9 September 2020
Date of orders:	21 October 2020
Decision date:	21 October 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member F Given, General Member
Decision:	The decision of the Children’s Guardian is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – Working with children check clearance – Where respondent refused application for clearance – Where applicant found not guilty of indecent assault of a child – Whether applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW)
Cases Cited:	CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Reed v R [2006] NSWCCA 314
Texts Cited:	None cited
Category:	Principal judgment
Parties:	EFH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: D Kaiti (Applicant) M Giacomo (Respondent) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2019/00403474
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 pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).