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FVE v Children's Guardian

FVE v Children's Guardian

Case [2024] NSWCATAD 192 15 July 2024

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FVE v Children’s Guardian [2024] NSWCATAD 192
Hearing dates: 26 February 2024
Date of orders: 15 July 2024
Decision date: 15 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
M Maher, General Member
Decision:
(1) The decision of the respondent dated 13 April 2023 to refuse the applicant’s Working with Children Check Clearance is affirmed.
(2) The application is otherwise dismissed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations -– weight of evidence of risk – current risk - whether sufficient time to rehabilitate – risk elevating factors

Legislation Cited:
Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Crimes Act 1900

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Commissioner for Children and Young People v FZ [2011] NSWCA 111
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
CXZ v Children’s Guardian [2020] NSWCA 338
M v M (1988) 166 CLR (HCA)
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
None

Category: Principal judgment
Parties: FVE (Applicant)
Children’s Guardian (Respondent)
Representation:
Solicitors:
(Applicant) - Self Represented
Crown Solicitor (Respondent)

File Number(s): 2023/00155907
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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent refusing his Working with Children Check clearance (WWCCC). The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that he posed a risk to the safety of children.
The respondent in processing the 28 July 2021 application became aware of a number of fairly recent offences committed by the applicant from 2011 to 2019. These involved violent conduct in the nature of assaults on persons in the applicant’s care (a child), domestic violence offences, neglect as well as engaging in cruelty…

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 FVE v Children's Guardian

Details

AGLC: FVE v Children's Guardian [2024] NSWCATAD 192
Case: [2024] NSWCATAD 192
Decision Date: 15 July 2024

CaseChat Overview and Summary

The case between FVE and the Children's Guardian involved a dispute over the refusal of a Working with Children Check Clearance to the applicant, FVE. The dispute was heard in the Federal Circuit and Family Court of Australia, with the primary judge, Justice Mortimer, tasked with determining whether the refusal was justified under the relevant legislative framework.

The central legal issues before the court were whether the risk to children posed by FVE was real and appreciable, and if there was sufficient evidence to support the refusal. The court had to weigh the allegations against FVE, assess the circumstances surrounding these allegations, and determine whether the risk of harm to children was currently present and significant. Additionally, the court needed to consider whether there had been enough time for FVE to rehabilitate and whether any factors might elevate the risk to an unacceptable level.

Justice Mortimer found that the risk to children was both real and appreciable, based on the weight of evidence presented. The court concluded that the allegations against FVE were sufficiently serious and that the current risk to children was not mitigated. The judge also found that there had not been sufficient time for FVE to rehabilitate to a point where the risk would no longer be appreciable. The presence of risk-elevating factors further supported the decision. Consequently, the decision of the Children's Guardian to refuse FVE's Working with Children Check Clearance was affirmed.

The final orders of the court were to affirm the decision of the Children's Guardian dated 13 April 2023 to refuse FVE's Working with Children Check Clearance and to dismiss the application in all other respects.

Orders

Orders of the court

(1) The decision of the respondent dated 13 April 2023 to refuse the applicant’s Working with Children Check Clearance is affirmed.

(2) The application is otherwise dismissed.

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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Actions

Citations

FVE v Children's Guardian [2024] NSWCATAD 192

Cases Citing This Decision

No citing cases yet.

Cases Cited

CXZ v Children's Guardian [2020] NSWCA 338
Citation 1 (Para 79)

…elied on the observations of the Court in the cases of BKE – v Children’s Guardian [2015] NSWSC 523 and the case of CXZ v Children’s Guardian [2020] NSWCA 338.…
Tilley v Children's Guardian [2017] NSWCA 174
Citation 2 (Para 9)

…o conduct a risk assessment on any application as confirmed by s 15 (3) of the Act and the Court of Appeal Decision in Tilley v Children’s Guardian [2017] NSWCA 174 (Tilley). The records identified by the respondent were as follows:…
BKE v Office of the Children's Guardian [2015] NSWSC 523
Citation 3 (Para 79)

…an submitted that the threshold for risk was fairly low and relied on the observations of the Court in the cases of BKE – v Children’s Guardian [2015] NSWSC 523 and the case of CXZ v Children’s Guardian [2020] NSWCA 338.…
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
Citation 4 (Para 29)

…been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].…
BFX v Children's Guardian [2014] NSWCATAD 115
Citation 5 (Para 33)

…roval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 , BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
Citation 6 (Para 28)

…urisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per…
BFC v The Children's Guardian [2014] NSWCATAD 90
Citation 7 (Para 33)

…The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 , BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
Citation 8 (Para 28)

…otective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002…
ADV v Commission for Children and Young People [2012] NSWADT 8
Citation 9 (Para 32)

…ared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998 : see ADV v Commission for Children and Young People [2012] NSWADT 8.…
Commission for Children and Young People v FZ [2011] NSWCA 111
Citation 10 (Para 14)

…t is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.…
Commission for Young People v V [2002] NSWSC 949
Citation 11 (Para 31)

…The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42],…
M v M [1988] HCA 68
Citation 12

…30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not…
Briginshaw v Briginshaw [1938] HCA 34
Citation 13

…e v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs…
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30
Citation 14

…d a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).…
R v Commission for Children and Young People [2002] NSWIRCOMM 101
Citation 15 (Para 28)

…AD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 31)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 5)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 7)
Commission for Children and Young People Act 1998 (NSW)
1 mention (from Para 32)
Crimes Act 1900 (ACT)
1 mention (from Para 118)

Medium Neutral Citation:	FVE v Children’s Guardian [2024] NSWCATAD 192
Hearing dates:	26 February 2024
Date of orders:	15 July 2024
Decision date:	15 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Maher, General Member
Decision:	(1) The decision of the respondent dated 13 April 2023 to refuse the applicant’s Working with Children Check Clearance is affirmed. (2) The application is otherwise dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations -– weight of evidence of risk – current risk - whether sufficient time to rehabilitate – risk elevating factors
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Crimes Act 1900
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Commissioner for Children and Young People v FZ [2011] NSWCA 111 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 CXZ v Children’s Guardian [2020] NSWCA 338 M v M (1988) 166 CLR (HCA) R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	None
Category:	Principal judgment
Parties:	FVE (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: (Applicant) - Self Represented Crown Solicitor (Respondent)
File Number(s):	2023/00155907
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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.