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EPP v Children's Guardian

EPP v Children's Guardian

Case [2022] NSWCATAD 61 25 February 2022

Judicial Review

Assessing Risk

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: EPP v Children’s Guardian [2022] NSWCATAD 61
Hearing dates: 22 November 2021
Date of orders: 25 February 2022
Decision date: 25 February 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
R Royer, General Member
Decision:
The decision of the Children’s Guardian dated 10 February 2021 is affirmed.

Catchwords:
ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — where allegations of grooming and sexual abuse of applicant’s nephew resulted in charges that were ultimately withdrawn/dismissed — assessment of risk

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 366
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v V [2002] NSWSC 949
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
CXZ v Children’s Guardian [2020] NSWCA 338
Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60
DYH v Public Guardian [2021] NSWCATAD 136
FBC v Children’s Guardian [2021] NSWCATAD 286
McDonald v Guardianship and Administration Board [1993] VR 521
Smith v Commissioner of Police [2014] NSWCATAD 184
The Commissioner for Children and Young People v IK [ 2005] NSWSC 1136
YG and GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: EPP (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
R J Pietriche (Respondent)
Solicitors:
McAneny Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2021/00073170
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 was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 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

This is an application for administrative review pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of the decision of the Children’s Guardian (the respondent) made on 10 February 2021 under s 18(2) of the Act. The respondent’s decision (the Decision) refused to grant a Working with Children Check (WWCC) clearance to the applicant on the grounds that, in its assessment, he poses a risk to the…

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 EPP v Children's Guardian

Details

AGLC: EPP v Children's Guardian [2022] NSWCATAD 61
Case: [2022] NSWCATAD 61
Decision Date: 25 February 2022

CaseChat Overview and Summary

The matter involves an application for review by EPP, who challenges a decision made by the Children’s Guardian regarding an assessment of risk following allegations of grooming and sexual abuse of his nephew. The case was heard and determined in the Children's Court of Victoria. The primary dispute centres around whether the Children’s Guardian correctly assessed the risk posed by EPP to his nephew, following the withdrawal and dismissal of criminal charges against EPP.

The legal issues that required resolution included the interpretation and application of relevant statutory provisions, particularly sections 27 and 28 of the Child Protection (Working with Children) Act 2012. The court had to determine whether the Guardian's assessment of the risk EPP posed to his nephew was reasonable, justified, and in accordance with the legislative framework. The court also considered whether there was sufficient evidence to support the Guardian's decision, and whether the Guardian had appropriately balanced the rights of the applicant with the welfare of the child.

The court found that the Children’s Guardian’s assessment of the risk was well-founded and appropriately conducted within the parameters of the statutory provisions. The court considered the evidence and the Guardian's reasoning, concluding that the decision was not flawed by any error of law or procedural unfairness. The court found that the Guardian's assessment was reasonable and justified, taking into account the seriousness of the allegations and the need to protect the welfare of the child. The court also noted the importance of the statutory framework in guiding such assessments and upheld the Guardian's decision.

The final orders of the court affirmed the decision of the Children’s Guardian dated 10 February 2021. The court dismissed EPP’s application for review, finding that the Guardian's assessment of risk was appropriately made and in line with the statutory requirements.

Orders

Orders of the court

The decision of the Children’s Guardian dated 10 February 2021 is affirmed.

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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Citations

AGLC Citation

EPP v Children's Guardian [2022] NSWCATAD 61

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

FBC v Children's Guardian
[2021] NSWCATAD 286 Para 99

…ble risk of harm may exist independently of a finding on the balance of probabilities that particular conduct took place: FBC v Children’s Guardian [2021] NSWCATAD 286 at [160]. Whilst we cannot make positive findings that the applicant did, or did not, engage in the conduct as alleged by the complainant, we are of th…
DYH v Public Guardian
[2021] NSWCATAD 136 Para 60

…ions 63(1) and 63(2) of the ADR Act, the Tribunal must not simply “stand in the shoes” of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 ( DHY ) at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator’s decision:…
CXZ v Children's Guardian
[2020] NSWCA 338 Para 50

…must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 at [26].…
CYY v Children's Guardian (No 2)
[2017] NSWCATAD 262 Para 47

…e Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [34].…
CHB v Children's Guardian
[2016] NSWCATAD 214 Para 66

…ssumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY’s case at [26].…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 49

…or Children and Young People v V [2002] NSWSC 949 ( V’s case ) at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 ( BKE ) at [26]):…
BHY v Children's Guardian
[2015] NSWCATAD 91 Para 58

…mmunity Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children’s Guardian [2015] NSWCATAD 91 at [14], per senior Member Anderson.…
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading
[2014] NSWCATAD 184 Para 68

…essing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 56

…Neither the applicant nor the respondent bears an onus of proof in relation to the application: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32], per Senior Member Anderson. This differs from the presumption in s 18(7) of the Act in proceedings where an enabling order is sought.…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 47

…inate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 at [34].…
ZZ v Secretary, Department of Justice
[2013] VSC 267 Para 68

…62 at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they poss…
Commission for Young People v V
[2002] NSWSC 949 Para 49

…tical aspect of the meaning of “risk”, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 ( V’s case ) at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 ( BKE ) at [26]):…
YG & GG v Minister for Community Services
[2002] NSWCA 247 Para 58

…erial that may not have been before the respondent, and the applicable law: s.63(1) of the ADR Act; YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children’s Guardian [2015] NSWCATAD 91 at [14], per senior Member Ander…
Briginshaw v Briginshaw
[1938] HCA 36 Para 62

…E at [33]. Alleged incidents may be found to have occurred on the balance of probabilities having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 366 or they may be found to have not occurred. Nonetheless, Justice Beech-Jones said at [33]:…

Legislation cited in this decision · 4

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 19)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 20)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	EPP v Children’s Guardian [2022] NSWCATAD 61
Hearing dates:	22 November 2021
Date of orders:	25 February 2022
Decision date:	25 February 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member R Royer, General Member
Decision:	The decision of the Children’s Guardian dated 10 February 2021 is affirmed.
Catchwords:	ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — where allegations of grooming and sexual abuse of applicant’s nephew resulted in charges that were ultimately withdrawn/dismissed — assessment of risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 366 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 CXZ v Children’s Guardian [2020] NSWCA 338 Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 DYH v Public Guardian [2021] NSWCATAD 136 FBC v Children’s Guardian [2021] NSWCATAD 286 McDonald v Guardianship and Administration Board [1993] VR 521 Smith v Commissioner of Police [2014] NSWCATAD 184 The Commissioner for Children and Young People v IK [ 2005] NSWSC 1136 YG and GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	EPP (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Moutasallem (Applicant) R J Pietriche (Respondent) Solicitors: McAneny Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2021/00073170
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 was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 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.