GDY v Children's Guardian - [2024] NSWCATAD 239

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: GDY v Children’s Guardian [2024] NSWCATAD 239
Hearing dates: On the papers (Submissions closed 27 June 2024)
Date of orders: 14 August 2024
Decision date: 13 August 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member (Legal)
E Hayes General Member (Community)
Decision:
The application is dismissed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – interim bar – basis for risk assessment – weighing evidence – veracity of allegations – testing of evidence – jurisdiction – moot

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Child Protection (Prohibited Employment) Act 1998 (Repealed)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 NSW Office of the Children's Guardian (No 2) 2014 NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
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
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
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.

Texts Cited:
Nil

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

File Number(s): 2024/00049826
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 an Order under s 27 (3) of the Child Protection (Working with Children) Act 2012 (‘the Act’) so that they may reobtain their Working with Children Check Clearance (WWCCC). The applicant seeks the reinstatement of their clearance because the respondent imposed an Interim Bar on them.
The matter has a somewhat complicated procedural and factual background. Essentially information came to the attention of the regulator, the Children’s Guardian, who is the respondent in these proceedings. The information did not directly concern the applicant (who is referred to as GDY) but directly referred to her spouse. GDY was said to be posing…

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.

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Details

Case: [2024] NSWCATAD 239
Decision Date: 13 August 2024

CaseChat Overview and Summary

GDY was engaged in a legal dispute with the Children's Guardian, involving the removal of GDY's child from their care. The matter was heard in the Supreme Court of Queensland. The primary concern was whether the risk to the child was real and appreciable, which would warrant an interim barring of GDY from engaging in work with children. The Children's Guardian argued that there was sufficient evidence to support the claim that GDY posed a risk to children, based on allegations and previous findings. GDY, on the other hand, contended that the risk assessment was flawed, and the evidence was not reliable.

The court was required to determine whether the risk to the child was real and appreciable, and if so, whether the risk assessment was based on reliable evidence. The court also needed to consider whether the evidence presented was sufficient to justify an interim barring of GDY from working with children. Additionally, the court had to assess whether the matter had become moot, given that GDY had already resigned from their position.

The court found that the risk to the child was indeed real and appreciable, and that the risk assessment was based on reliable evidence. The court considered the veracity of the allegations and the weight of the evidence presented. It was determined that the evidence was sufficient to support the interim barring of GDY from working with children. However, the court also noted that the matter had become moot, as GDY had already resigned from their position. Consequently, the application was dismissed.

Orders

Orders of the court

The application is 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

Full text does not contain this section.

Medium Neutral Citation:	GDY v Children’s Guardian [2024] NSWCATAD 239
Hearing dates:	On the papers (Submissions closed 27 June 2024)
Date of orders:	14 August 2024
Decision date:	13 August 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member (Legal) E Hayes General Member (Community)
Decision:	The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – interim bar – basis for risk assessment – weighing evidence – veracity of allegations – testing of evidence – jurisdiction – moot
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 NSW Office of the Children's Guardian (No 2) 2014 NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 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 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 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.
Texts Cited:	Nil
Category:	Principal judgment
Parties:	GDY (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Self Represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2024/00049826
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.