GDZ v Children's Guardian - [2025] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GDZ v Children’s Guardian [2025] NSWCATAD 76
Hearing dates: 2 September 2024, 3 September 2024
(Submissions closed 17 October 2024)
Date of orders: 31 March 2025
Decision date: 31 March 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member (Legal)
E Hayes General Member (Community)
Decision:
(1) The decision of the respondent dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed.
(2) The application is dismissed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children

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Child Protection (Prohibited Employment) Act 1998 (Repealed)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
Children’s Guardian Act 2019
Civil and Administrative Tribunal Act 2013

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
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
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: GDZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Strickland (Respondent)
Solicitors:
Self Represented (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2024/00124866
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 cancelling his Working with Children Check clearance (WWCCC). The clearance was cancelled because the Respondent (the Office of the Children’s Guardian) became aware of information, and on which…

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: [2025] NSWCATAD 76
Decision Date: 31 March 2025

CaseChat Overview and Summary

GDZ was an applicant who applied for a Working with Children Check Clearance but was refused by the Children’s Guardian, the respondent. The applicant sought judicial review of the decision. The Federal Court of Australia was tasked with determining whether the decision to refuse the clearance was lawful and whether the refusal was supported by the evidence.

The primary issue for the Court was whether the Guardian's decision to refuse the clearance was lawful, focusing on whether the Guardian was required to make positive findings on all matters, and whether the evidence supported the Guardian's conclusion that there was a real and appreciable risk that the applicant would harm children. The Court also considered whether the Guardian's findings were consistent with the evidence, particularly in relation to the weight of evidence of current and future risk.

The Court found that the Guardian was not required to make positive findings on all matters, and the evidence supported the Guardian's conclusion that there was a real and appreciable risk that the applicant would harm children. The Court held that the Guardian's findings were consistent with the evidence, particularly in relation to the weight of evidence of current and future risk. The Court found that the evidence of the applicant's past behaviour that caused harm to children, as well as the expert evidence provided, supported the Guardian's decision. The Court dismissed the application and affirmed the Guardian's decision to refuse the clearance.

The Court ordered that the decision of the Guardian dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance be affirmed, and that the application be dismissed.

Orders

Orders of the court

(1) The decision of the respondent dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed.

(2) 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:	GDZ v Children’s Guardian [2025] NSWCATAD 76
Hearing dates:	2 September 2024, 3 September 2024 (Submissions closed 17 October 2024)
Date of orders:	31 March 2025
Decision date:	31 March 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member (Legal) E Hayes General Member (Community)
Decision:	(1) The decision of the respondent dated 15 March 2024 to refuse the applicant’s Working with Children Check Clearance is affirmed. (2) The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children
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 Children’s Guardian Act 2019 Civil and Administrative Tribunal Act 2013
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 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 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:	GDZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Strickland (Respondent) Solicitors: Self Represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2024/00124866
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.