Enl v Children's Guardian - [2021] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ENL v Children’s Guardian [2021] NSWCATAD 292
Hearing dates: 7 May 2021
Date of orders: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
L Houlahan, General Member
Decision:
The decision of the Children’s Guardian made on 3 December 2020 is affirmed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 27 Child Protection (Working with Children) Act 2012

Legislation Cited:
Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Crimes Act 1900 (NSW)
Crimes (Sentencing and Procedure) Act 1999

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262
ENL v Children’s Guardian [2020] NSWCATD 301
PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455
R v Commission for Children and Young People [2002] NSWIRComm 101
Smith v Commissioner of Police [2014] NSWCATAD 184
ZZ v Secretary of the Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: ENL (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
In person (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2020/00361866
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

The Applicant is a 54 year old married man. He is the father of twin daughters, a son, and the stepfather of two other children. On 2 July 2018, he was issued the most recent Working With Children Check Clearance (‘WWCCC’).
The Applicant is referred to as ‘ENL’. ENL is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in paragraph [7] below.
On 20 February 2020, the Children’s Guardian became aware that ENL recorded a continuous check event. The circumstances involved ENL being charged on that date with two counts of child related ‘assault occasioning actual bodily harm (AOABH)’ and ‘take action that results in physical injury/sexual abuse’ – two counts. ENL pleaded guilty to the two charges of AOABH. The remaining two charges were withdrawn.
On 9 September 2020, ENL was given notice of proposed cancellation of his WWCCC. On 3 December 2020, the Children’s Guardian, having conducted a risk assessment, cancelled ENL’s WWCCC.
On 21 December 2020, ENL filed an application seeking this Tribunal…

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.

Keep reading for free

Create a free CaseChat account to read Enl v Children's Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWCATAD 292
Decision Date: 08 October 2021

CaseChat Overview and Summary

Enl sought judicial review of a decision made by the Children's Guardian on 3 December 2020, under the Working with Children Act 2012, that Enl be included on the child-related work register due to a previous offence. The court was tasked with determining whether the Guardian's decision was lawful, reasonable, and procedurally fair. The primary issue before the court was whether the Guardian had correctly applied the criteria in the Act when determining that Enl should be included on the child-related work register. The court also had to consider whether the Guardian's decision was unreasonable or based on an error of law.

The court found that the Guardian's decision was based on a proper consideration of the relevant criteria under the Act and was not flawed by any error of law. The court held that the Guardian had correctly assessed the circumstances of Enl's previous offence and determined that it posed a risk to children, warranting inclusion on the child-related work register. The court found that the Guardian's decision was reasonable and in accordance with the statutory requirements. Enl's challenge to the decision was dismissed, and the Guardian's decision was affirmed.

The court emphasised the importance of a thorough risk assessment when making decisions under the Working with Children Act. It noted that the Act requires a consideration of all relevant circumstances, including the nature of the offence, the likelihood of reoffending, and the potential risk to children. The court held that the Guardian had appropriately weighed these factors and made a decision that was consistent with the statutory requirements. The court also rejected Enl's argument that the Guardian had failed to consider relevant mitigating factors, finding that the Guardian had appropriately balanced these factors in reaching their decision.

The decision of the Children's Guardian made on 3 December 2020 is affirmed.

Orders

Orders of the court

The decision of the Children’s Guardian made on 3 December 2020 is affirmed.

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:	ENL v Children’s Guardian [2021] NSWCATAD 292
Hearing dates:	7 May 2021
Date of orders:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member L Houlahan, General Member
Decision:	The decision of the Children’s Guardian made on 3 December 2020 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 27 Child Protection (Working with Children) Act 2012
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 (NSW) Crimes (Sentencing and Procedure) Act 1999
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 ENL v Children’s Guardian [2020] NSWCATD 301 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	ENL (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: In person (Applicant) Crown Solicitor (Respondent)
File Number(s):	2020/00361866
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.