EQE v Children's Guardian - [2021] NSWCATAD 357

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EQE v Children’s Guardian [2021] NSWCATAD 357
Hearing dates: 10 August 2021
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
M Bolt, General Member
Decision:
(1) The time for EQE to file an application to review the decision of the Children’s Guardian made on 22 February 2021 is extended to 29 March 2021.
(2) The decision of the Children’s Guardian made on 22 February 2021 is set aside.
(3) The Children’s Guardian is to issue a Working With Children Check Clearance within 28 days from the date of publication of this decision.

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 (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
BKE v Children’s Guardian [2015] NSWSC 523
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CTM v Children’s Guardian [2016] NSWCATAD 280
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262
ZZ v Secretary of the Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: EQE (Applicant)
Children’s Guardian (Respondent)
Representation: Counsel:
Applicant – Self-represented
Ms V Hartstein (Respondent)

File Number(s): 2021/87260
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 51 year old married man. He is the father of a daughter (deceased) and a son (18 years) to his current wife, and the stepfather of five other children. He also has a son and daughter from a previous marriage and 10 grandchildren. On 30 October 2015, he was issued with a Working With Children Check Clearance (‘WWCCC’).
The Applicant is referred to as ‘EQE’. EQE is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in paragraph [11] below.
On 27 January 2017, the Children’s Guardian became aware that EQE recorded a continuous check event. The circumstances involved EQE being charged in relation to aggravated sexual assault, aggravated indecent assault and indecent assault in respect of a female child who was aged between 13 and 16 at the this of the alleged offences. On the same date, the Children’s Guardian cancelled EQE’s WWCCC.
On 7 December 2018, EQE was found not guilty of the charges after a criminal trial.
On 29 September 2019, he…

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 [2021] NSWCATAD 357
Case: [2021] NSWCATAD 357
Decision Date: 30 November 2021

CaseChat Overview and Summary

The parties involved in the case were EQE and the Children's Guardian. The dispute revolved around a Working With Children Check Clearance which EQE applied for but was denied by the Children's Guardian. The matter was heard in the relevant court, which is not explicitly stated in the text provided. The court was tasked with determining whether the Children's Guardian's decision to deny EQE's application for a Working With Children Check Clearance was lawful, rational, and in accordance with the provisions of the Child Protection (Working with Children) Act 2012.

The court needed to decide if the Children's Guardian's decision was justified based on the circumstances of the offence and the risk assessment conducted. The legal issue at hand was whether the decision made by the Children's Guardian was unreasonable and thus subject to judicial review. The court had to consider if the decision was made without proper consideration of the relevant factors, if there was an error in the interpretation of the law, or if the decision was otherwise outside the scope of the authority granted under the Act.

In reaching its decision, the court found that the Children's Guardian's decision was indeed unreasonable. The court set aside the decision made on 22 February 2021 and ordered the Children's Guardian to issue a Working With Children Check Clearance within 28 days from the date of publication of the decision. Additionally, the court extended the time for EQE to file an application to review the decision to 29 March 2021.

Orders

Orders of the court

(1) The time for EQE to file an application to review the decision of the Children’s Guardian made on 22 February 2021 is extended to 29 March 2021.

(2) The decision of the Children’s Guardian made on 22 February 2021 is set aside.

(3) The Children’s Guardian is to issue a Working With Children Check Clearance within 28 days from the date of publication of this decision.

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

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Medium Neutral Citation:	EQE v Children’s Guardian [2021] NSWCATAD 357
Hearing dates:	10 August 2021
Date of orders:	30 November 2021
Decision date:	30 November 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member M Bolt, General Member
Decision:	(1) The time for EQE to file an application to review the decision of the Children’s Guardian made on 22 February 2021 is extended to 29 March 2021. (2) The decision of the Children’s Guardian made on 22 February 2021 is set aside. (3) The Children’s Guardian is to issue a Working With Children Check Clearance within 28 days from the date of publication of this decision.
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 (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 BKE v Children’s Guardian [2015] NSWSC 523 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CTM v Children’s Guardian [2016] NSWCATAD 280 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	EQE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Applicant – Self-represented Ms V Hartstein (Respondent)
File Number(s):	2021/87260
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.