FMG v Children's Guardian - [2025] NSWCATAD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FMG v Children’s Guardian [2025] NSWCATAD 37
Hearing dates: 2 November 2023
Date of orders: 10 February 2025
Decision date: 10 February 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Rogers, Senior Member
E Hayes, General Member
Decision:
The decision of the Children’s Guardian dated 16 March 2023 to refuse to grant FMG a working with children check clearance is affirmed.

Catchwords:
ADMINISTRATIVE REVIEW – review under section 27 Child Protection (Working with Children) Act 2012 - working with children check clearance – Alleged history of family violence including towards child family members - whether Applicant poses a risk to safety of children

Legislation Cited:
Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Evidence Act 1995

Cases Cited:
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [138] HCA 34
CGP v Children's Guardian [2017] NSWCATAD 12
Commission for Children and Young People v V [2002] NSWSC 949
CXZ v Children’s Guardian [2020] NSWCA 338
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
M v M (1988) 166 CLR 69
McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Sawires v Commissioner of Police [2010] NSWADT 4
Tilley v Children’s Guardian [2017] NSWCA 174

Category: Principal judgment
Parties: FMG (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Latham (Applicant)
Solicitors:
O’Brien Criminal & Civil Solicitors Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2023/00111635
Publication restriction:
With the exception of expert witnesses, officers of government agencies and legal representatives, 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 is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

FMG wants to work as a bus driver but requires a working with children check clearance.
When FMG applied for a working with children check clearance in 2021, the Children’s Guardian refused to grant him one. This case is about whether or not the Children’s Guardian made the correct and preferable decision.

Background

FMG made a previous application for a Clearance, which was refused on 11 July 2016.

Decision of the Children’s Guardian to refuse the Clearance

FMG reapplied for a working with children check clearance (‘Clearance’) on 13 December 2021. The Office of the Children’s Guardian conducted a risk assessment and on 16 March 2023 the Children’s Guardian refused the application.
The decision of the Children’s Guardian to refuse the Clearance was based on what the Children’s Guardian considered to be a more than 20 year history of violence and intimidation in the context of “domestically abusive…

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 FMG v Children's Guardian

Details

AGLC: FMG v Children's Guardian [2025] NSWCATAD 37
Case: [2025] NSWCATAD 37
Decision Date: 10 February 2025

CaseChat Overview and Summary

In the matter of FMG v Children's Guardian, the applicant, FMG, sought review of a decision by the Children's Guardian to deny a working with children check clearance. The Guardian had refused the clearance on the basis that FMG had a history of family violence, including incidents involving child family members, and that this posed a risk to the safety of children. The dispute was brought before the court to determine whether the Guardian's decision was legally sound.

The legal issues before the court were whether the Guardian's assessment of risk was reasonable and whether there was sufficient evidence to support the conclusion that FMG posed a risk to the safety of children. The applicant argued that the Guardian had not properly considered all the evidence and had erred in law by making findings without sufficient basis. The court had to consider the statutory framework governing working with children checks and the discretion afforded to the Guardian under the Child Protection (Working with Children) Act 2012.

The court found that the Guardian's assessment was both reasonable and supported by the evidence. The Guardian had considered all relevant information, including the history of family violence and its implications for the safety of children. The court held that the Guardian's decision was within the bounds of their statutory authority and discretion. The applicant's arguments did not demonstrate any error on the part of the Guardian, and the court was satisfied that the refusal to grant the clearance was justified.

In conclusion, the court affirmed the decision of the Children's Guardian dated 16 March 2023. The Guardian's assessment of the risk posed by FMG was upheld as legally sound and based on sufficient evidence. The court found no grounds to overturn the refusal to grant FMG a working with children check clearance.

Orders

Orders of the court

The decision of the Children’s Guardian dated 16 March 2023 to refuse to grant FMG 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:	FMG v Children’s Guardian [2025] NSWCATAD 37
Hearing dates:	2 November 2023
Date of orders:	10 February 2025
Decision date:	10 February 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Rogers, Senior Member E Hayes, General Member
Decision:	The decision of the Children’s Guardian dated 16 March 2023 to refuse to grant FMG a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – review under section 27 Child Protection (Working with Children) Act 2012 - working with children check clearance – Alleged history of family violence including towards child family members - whether Applicant poses a risk to safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Evidence Act 1995
Cases Cited:	BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [138] HCA 34 CGP v Children's Guardian [2017] NSWCATAD 12 Commission for Children and Young People v V [2002] NSWSC 949 CXZ v Children’s Guardian [2020] NSWCA 338 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 M v M (1988) 166 CLR 69 McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] VR 521 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Sawires v Commissioner of Police [2010] NSWADT 4 Tilley v Children’s Guardian [2017] NSWCA 174
Category:	Principal judgment
Parties:	FMG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Latham (Applicant) Solicitors: O’Brien Criminal & Civil Solicitors Pty Ltd (Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00111635
Publication restriction:	With the exception of expert witnesses, officers of government agencies and legal representatives, 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 is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.