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 MemberDecision: (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:
Solicitors:
V A Hartstein (Applicant)
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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- Case
- [2021] NSWCATAD 376
- Decision Date
CaseChat Overview and Summary
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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