FHK v Children's Guardian

Link copied
Case Copied 36 min read

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FHK v Children’s Guardian [2022] NSWCATAD 376
Hearing dates: 22 August 2022
Date of orders: 22 November 2022
Decision date: 22 November 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
M Bolt, General Member
Decision:

1. The decision of the Children’s Guardian on 7 February 2022 to refuse the Applicant’s Working with Children Check Clearance is set aside.

2. The Children’s Guardian is to grant a Working with Children Check Clearance to the applicant.

Catchwords:

ADMINISTRATIVE LAW - working with children check clearance – assessment of risk

Legislation Cited:

Administrative Decisions Review Act 1997 

Civil and Administrative Tribunal Act 2013

Child Protection (Working with Children) Act 2012

Cases Cited:

BKE v Office of Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw (1938) 60 CLR 336

Children’s Guardian v BRL [2016] NSWSC 1206

Commissioner for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commissioner for Children and Young Persons v FZ [2011] NSWCA 111

CXZ v Children’s Guardian [2020] NSWCA 338

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Office of the Children’s Guardian v DVR [2022] NSWSC 1036

ZZ v Secretary to the Department of Justice [2013] VSC 267

Texts Cited:

None cited

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

Counsel:
Lowe T (Applicant)
Jones E (Respondent)

Solicitors:
Bell Lawyers (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2022/00048416
Publication restriction: Nil

REASONS FOR DECISION

Background

  1. On 16 November 2020 the Applicant applied for Working with Children Check Clearance (Clearance). On 8 December 2020 the applicant was sent a Notice of Interim Bar and request for information advising him that his application for a Clearance was subject to an assessment requirements triggered by records enlivened under cl 1(1)(b) of Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) (Act).

  2. The records were charges:

  1. Persistent sexual abuse of a child - s66EA of the Crimes Act 900 (NSW);

  2. Indecent assault on person under 16 years - s61M(2) of the Crimes Act 900 (NSW);

  3. Aggravated sexual assault with a person between the age of 10 to 14 years. Four charges. - s66C(2) of the Crimes Act 900 (NSW); and

  4. Persistent sexual abuse of a child. - s66EA of the Crimes Act 1900 (NSW (the same charge as the first but differently particularised) (collectively the Charges).

  1. Charge (1) was dismissed on 28 June 2019. Charges (2) to (4) were dismissed on 26 October 2020.

  2. On 7 February 2022 the Children's Guardian (respondent) sent the applicant a Notice of Refusal of the Clearance. On 18 February 2022 the applicant applied pursuant to section 27(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) for administrative review of the decision by the Children's Guardian to refuse to grant the Clearance.

  3. By reason of the Charges, the Children’s Guardian submits that the applicant poses a risk to safety of children for…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read FHK v Children's Guardian and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] NSWCATAD 376
Decision Date

CaseChat Overview and Summary

The case of FHK v Children's Guardian involved a dispute between an applicant, FHK, and the Children's Guardian, concerning the refusal of a Working with Children Check Clearance. The applicant sought to provide services for children, necessitating this clearance. The Federal Circuit and Family Court of Australia was tasked with determining the legality and correctness of the Guardian's decision.

The primary legal issue before the court was whether the Children's Guardian had acted lawfully and rationally in denying the applicant's clearance. The applicant argued that the Guardian's decision was not supported by substantial evidence and was therefore unreasonable. The Guardian contended that the decision was based on valid assessments of risk associated with the applicant's past conduct.

The court found that the Children's Guardian's decision to refuse the clearance was not supported by substantial evidence and thus was unreasonable. The court emphasised the need for a rational and evidence-based approach in making such decisions, particularly in light of the significant impact on the applicant's livelihood. It was determined that the Guardian had failed to adequately justify the refusal, leading to the conclusion that the decision was unlawful.

Consequently, the court ordered that the decision of the Children's Guardian to refuse the Working with Children Check Clearance be set aside. Additionally, the court mandated that the Guardian grant the clearance to the applicant, ensuring that the decision-making process adhered to legal and rational standards.

Orders

Orders of the court

1. The decision of the Children’s Guardian on 7 February 2022 to refuse the Applicant’s Working with Children Check Clearance is set aside.

2. The Children’s Guardian is to grant a Working with Children Check Clearance to the applicant.

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

Full text does not contain this section.