EQE v Children's Guardian - [2023] NSWCATAD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EQE v Children’s Guardian [2023] NSWCATAD 11
Hearing dates: 29 August 2022
Date of orders: 16 January 2023
Decision date: 16 January 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
J Herberte, General Member
Decision:
The respondent’s decision to refuse the applicant’s application for a working with children check clearance is affirmed.

Catchwords:
ADMINISTRATIVE LAW – Child protection – Working with children – Whether applicant poses a risk to the safety of children – Where applicant found not guilty of criminal charges relating to sexual conduct with stepdaughter – Whether Tribunal affirmatively satisfied that alleged conduct occurred – Where applicant alleged to have physically and sexually abused his own children – Whether Tribunal is able to dismiss those allegations as groundless

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

Cases Cited:
CXZ v Children’s Guardian [2020] NSWCA 338
EQE v Children’s Guardian [2021] NSWCATAD 357
M v M (1988) 166 CLR 69; [1988] HCA 68
Office of the Children’s Guardian v EQE [2022] NSWSC 871

Texts Cited:
None Cited

Category: Principal judgment
Parties: EQE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Solicitors:
Applicant in person
Crown Solicitor (Respondent)

File Number(s): 2021/87260
Publication restriction: The disclosure of the applicant’s name, his wife’s name, his ex-wife’s name, the names of his biological and step-children and the names of other persons mentioned in the Tribunal’s reasons is prohibited.

REASONS FOR DECISION

This is an application for review of a decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance.
The Children’s Guardian refused that application largely on the basis of claims made by his stepdaughter that the applicant sexually abused her when she was aged between thirteen and sixteen. The applicant was charged with this conduct and, after a criminal trial, found not guilty.
The Children’s Guardian also relied upon disclosures made by the applicant’s children when they were around the ages of three to five that the applicant had sexually and physically abused them.
We are satisfied that the applicant engaged in the conduct the subject of the criminal charges against him. Further, we cannot dismiss the allegations made by his children as groundless. We consider that the applicant poses a risk to children and, accordingly, we have affirmed the decision of the Children’s Guardian.

Non-publication order

The Tribunal has previously made an order restricting (but not prohibiting) the disclosure of the name of the applicant, his victims and of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. For abundance of caution, and of our own motion, we order, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), that disclosure of the applicant’s name,…

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 EQE v Children's Guardian

Details

AGLC: EQE v Children's Guardian [2023] NSWCATAD 11
Case: [2023] NSWCATAD 11
Decision Date: 16 January 2023

CaseChat Overview and Summary

The case of EQE v Children's Guardian involved a challenge by the applicant, EQE, against a decision by the Children's Guardian that he was ineligible for a working with children check clearance. EQE had been found not guilty of criminal charges relating to sexual conduct with his stepdaughter, and he sought to overturn the Guardian's decision. The Guardian's decision was based on allegations that EQE had physically and sexually abused his own children, which had been dismissed as groundless by a tribunal. The Federal Court was tasked with determining whether the Tribunal was correct in its dismissal of the allegations and whether the Guardian's decision to refuse EQE a working with children check clearance was lawful.

The primary legal issues before the court were whether the Tribunal was correct in dismissing the allegations against EQE as groundless and whether the Guardian's decision to refuse EQE a working with children check clearance was valid. The court needed to consider the weight of the dismissed allegations and whether they could still form the basis for the Guardian's decision, despite the criminal charges being found not proven. Additionally, the court had to assess whether the Guardian had the authority to make such a decision based on dismissed allegations and whether the process followed was fair and lawful.

The court found that the Tribunal had correctly dismissed the allegations as groundless, as there was insufficient evidence to support them. However, the court also determined that the Guardian's decision to refuse EQE a working with children check clearance was valid. The court held that the Guardian was not bound by the outcome of the criminal trial and could make an independent assessment based on the available evidence. The court further found that the Guardian's decision was lawful, as it was based on the dismissed allegations and the overall risk posed by EQE to the safety of children.

The Federal Court affirmed the Children's Guardian's decision to refuse EQE's application for a working with children check clearance. The court found that the Guardian was not bound by the outcome of the criminal trial and could make an independent assessment of the risk posed by EQE. The court upheld the Guardian's decision, affirming that the dismissed allegations, despite being groundless in the criminal context, could still form the basis for the Guardian's decision. The court concluded that the Guardian's decision was lawful and within their authority.

Orders

Orders of the court

The respondent’s decision to refuse the applicant’s application for a working with children check clearance 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	EQE v Children’s Guardian [2023] NSWCATAD 11
Hearing dates:	29 August 2022
Date of orders:	16 January 2023
Decision date:	16 January 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member J Herberte, General Member
Decision:	The respondent’s decision to refuse the applicant’s application for a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Child protection – Working with children – Whether applicant poses a risk to the safety of children – Where applicant found not guilty of criminal charges relating to sexual conduct with stepdaughter – Whether Tribunal affirmatively satisfied that alleged conduct occurred – Where applicant alleged to have physically and sexually abused his own children – Whether Tribunal is able to dismiss those allegations as groundless
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	CXZ v Children’s Guardian [2020] NSWCA 338 EQE v Children’s Guardian [2021] NSWCATAD 357 M v M (1988) 166 CLR 69; [1988] HCA 68 Office of the Children’s Guardian v EQE [2022] NSWSC 871
Texts Cited:	None Cited
Category:	Principal judgment
Parties:	EQE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Solicitors: Applicant in person Crown Solicitor (Respondent)
File Number(s):	2021/87260
Publication restriction:	The disclosure of the applicant’s name, his wife’s name, his ex-wife’s name, the names of his biological and step-children and the names of other persons mentioned in the Tribunal’s reasons is prohibited.