Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: GFL v Children’s Guardian [2024] NSWCATAD 345 Hearing dates: 25 June 2024 Date of orders: 15 November 2024 Decision date: 15 November 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member
R Royer, General MemberDecision: The decision of the respondent, made on 1 February 2024, to cancel the applicant’s working with children check clearance is set aside and in substitution thereof a decision to grant the applicant a clearance under section 18(2) of the Child Protection (Working with Children) Act 2012.
Catchwords: ADMINISTRATIVE LAW – child protection – cancellation of a working with children check clearance – whether applicant poses a real and appreciable risk to the safety of children – history of domestic violence related assaults and breaches of apprehended domestic violence orders
ADMINISTRATIVE LAW – application of the reasonable person test and public interest test in section 30(1A) of the Child Protection (Working with Children) Act 2012
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection Legislation Amendment Act 2015 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
Prevention of Cruelty to Animals Act 1979 (NSW)
Working With Children Act 2005 (Vic)(repealed)
Worker Screening Act 2020 (Vic)
Cases Cited: CHB v Children’s Guardian [2016] NSWCATAD 214
DGH v Children’s Guardian [2018] NSWCATAD 130
DGZ v Children’s Guardian [2022] NSWCATAD 250
DPH v Children’s Guardian [2019] NSWCATAD 202 ELJ v The Children’s Guardian [2021] NSWCATAD 51
FLE v Children’s Guardian [2023] NSWCATAD 89 FND v Children’s Guardian [2024] NSWCATAD 125
Holbrook and Australian Postal Commission (1983) 5 ALN N46
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
OYJ v Secretary of the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33
PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
Re Eckersley and Ministerfor Capital Territory (1979) 2 ALD 303
ZZ v Secretary Department of Justice [2013] 267
Texts Cited: Nil
Category: Principal judgment Parties: GFL (Applicant)
Children’s Guardian (Respondent)Representation: Applicant (self-represented)
Crown Solicitor (Respondent)
File Number(s): 2024/00054548 Publication restriction: Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure by way of publication of the name of any person mentioned in the proceedings or referred to in the documentary material lodged in these proceedings other than the name of an expert witness or the officer of a government agency, is prohibited.
reasons for decision
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The applicant, GFL, is a registered nurse and has made an application, under section 27(2) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), seeking administrative review of the decision of the respondent, the Children’s Guardian, to cancel her working with children check clearance…
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- AGLC
- GFL v Children's Guardian [2024] NSWCATAD 345
- Case
- [2024] NSWCATAD 345
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant posed a real and appreciable risk to the safety of children, applying the reasonable person test and the public interest test as set out in section 30(1A) of the Act. The central legal issue was whether the evidence of the applicant's past conduct was sufficient to justify the cancellation of their clearance, and if the decision was proportionate to the risk posed and in the public interest. The court also needed to consider whether the decision-making process adhered to the principles of natural justice and whether the decision was supported by the evidence.
In delivering its judgment, the court found that the evidence did not establish a real and appreciable risk that the applicant would engage in conduct that would cause harm to a child. The court emphasised that the reasonable person test required a higher threshold than merely identifying past misconduct, and that the public interest test necessitated a balancing of the risk to children against the impact on the applicant. The court concluded that the decision to cancel the clearance was not supported by the evidence and was not proportionate to the risk, and therefore, the decision was flawed. Consequently, the court set aside the decision of the respondent and ordered that a decision to grant the applicant a clearance be made instead.
The final orders of the court were that the decision of the respondent, made on 1 February 2024, to cancel the applicant's working with children check clearance is set aside. In its place, the court ordered that a decision be made to grant the applicant a clearance under section 18(2) of the Child Protection (Working with Children) Act 2012. This judgment provides clarity on the application of the statutory tests and the standard of proof required for the cancellation of a working with children check clearance.
Orders
Orders of the court
The decision of the respondent, made on 1 February 2024, to cancel the applicant’s working with children check clearance is set aside and in substitution thereof a decision to grant the applicant a clearance under section 18(2) of the Child Protection (Working with Children) Act 2012.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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