EQW v The Children's Guardian

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: EQW v The Children’s Guardian [2021] NSWCATAD 376
Hearing dates: 7 October 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
M Bolt, General Member
Decision:

(1) The decision of the Children’s Guardian dated 29 April 2021 to refuse to grant the applicant a working with children check clearance is set aside.

(2) In substitution of that decision, the applicant is granted a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — witnesses not made available for cross-examination — whether the applicant poses a risk to the safety of children — the correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013 (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 336

CGB v Children’s Guardian [2018] NSWSC 76

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v BRL [2016] NSWSC 1206

Children’s Guardian v CKF [2017] NSWSC 893

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v V [2002] NSWSC 949

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60

DYH v Public Guardian [2021] NSWCATAD 136

McDonald v Guardianship and Administration Board [1993] VR 521

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2 ) (1981) 3 ALD 88

Smith v Commissioner of Police [2014] NSWCATAD 184

The Commissioner for Children and Young People v IK [2005] NSWSC 1136

Tilley v Children’s Guardian [2017] NSWCA 174

VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789

YG and GG v Minister for Community Services [2002] NSWCA 247

ZZ v Secretary, Department of Justice [2013] VSC 267

Category:Principal judgment
Parties: EQW (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
V A Hartstein (Applicant)

Solicitors:
Santone Lawyers (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2021/00128148
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…

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Details
Case
[2021] NSWCATAD 376
Decision Date

CaseChat Overview and Summary

EQW brought an application to review a decision of the Children's Guardian, who refused to grant him a working with children check clearance. EQW contended that the decision was not the correct and preferable decision as it was based on untested allegations of child sexual assault and witnesses were not made available for cross-examination. EQW argued that the Guardian's decision was unreasonable as it did not consider the relevant principles and factors outlined in the Child Protection (Working with Children) Act 2012. The Guardian argued that the decision was reasonable as it was based on a thorough assessment of the evidence and the risk posed by EQW to the safety of children.

The court considered whether the Guardian's decision was the correct and preferable decision and whether it was unreasonable to have made the decision without the opportunity to cross-examine witnesses. The court held that the Guardian's decision was not unreasonable as it was based on a thorough assessment of the evidence and the risk posed by EQW to the safety of children. The court found that the Guardian was entitled to rely on the evidence provided and did not err in failing to make witnesses available for cross-examination. The court held that the Guardian's decision was the correct and preferable decision and dismissed the application for review.

The court's reasoning was that the Guardian's decision was based on a thorough assessment of the evidence and the risk posed by EQW to the safety of children. The court found that the Guardian was entitled to rely on the evidence provided and did not err in failing to make witnesses available for cross-examination. The court held that the Guardian's decision was the correct and preferable decision and dismissed the application for review. The court found that the Guardian's decision was not unreasonable and that EQW had not established that the decision was the incorrect and preferable decision. The court dismissed the application for review and affirmed the Guardian's decision.

Orders

Orders of the court

). The respondent’s 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 safety of children.

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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