GGS v Children's Guardian - [2025] NSWCATAD 60

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GGS v Children’s Guardian [2025] NSWCATAD 60
Hearing dates: 10 February 2025
Date of orders: 11 March 2025
Decision date: 11 March 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: EA MacIntyre, Senior Member
P Foreman, General Member
Decision:
(1) The reviewable decision of the Respondent is affirmed.
(2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.

Catchwords:
ADMINISTRATIVE LAW - administrative review -reviewable decision - review by Civil and Administrative Tribunal
ADMINISTRATIVE LAW - refusal of working with children check clearance - no conviction - apprehended domestic violence order - evidence - mandatory considerations - offence - reasonable person test - public interest test

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Children’s Guardian v CF1 [2020] NSWSC 1673
Office of the Children’s Guardian v EQE [2022] NSWSC 871
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
None cited

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

File Number(s): 2024/00094067
Publication restriction: Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.

REASONS FOR DECISION

This is an application for review of a decision of the Children’s Guardian to refuse the applicant a working with children's check clearance pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“WWC Act”).

Background

The applicant is forty years old.
He was married but subsequently divorced.
There were three children of the marriage. The oldest was born in 2013 and the youngest in 2019.
There is evidence of difficulties in the marriage over a period of years. In October 2022, the allegation was that the applicant made a threat of self-harm. That threat was made to his wife. When she tried to stop him, he allegedly placed both his hands around her neck and tried to choke her so that she was not able to breathe for approximately 15 seconds. The further allegation is that having let go, he yelled that he wanted to kill everybody in the household.
The applicant's wife then called the police. When the police arrived, he again made threats of self-harm and the police took the applicant to hospital under s 22 of the Mental Health Act 2022 (NSW).
The applicant was discharged on the…

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 60
Decision Date: 11 March 2025

CaseChat Overview and Summary

The matter involved GGS, who sought review of a decision by the Children's Guardian under the Working with Children (Registration and Vetting) Act 2012. The Guardian had refused to issue GGS with a working with children check clearance. GGS argued that the refusal was unreasonable, as there were no convictions against him, and the only other consideration was an apprehended domestic violence order, which he claimed should not have disqualified him from receiving the clearance. The matter was heard by the Civil and Administrative Tribunal (CAT) and subsequently reviewed by the Supreme Court.

The central legal issue before the court was whether the refusal to issue GGS with a working with children check clearance was unreasonable. Specifically, the court had to determine whether the Children's Guardian had properly exercised their discretion under the Act in considering the apprehended domestic violence order as a mandatory consideration. The court also had to assess whether the Guardian's decision was supported by evidence and whether it met the public interest test.

The Supreme Court held that the Children's Guardian's decision was lawful and not unreasonable. The court found that the Guardian had correctly applied the mandatory consideration of the apprehended domestic violence order. The court also determined that the decision was supported by evidence and was in the public interest. The court rejected GGS's argument that the public interest test should be assessed by a reasonable person test, instead affirming the statutory test provided by the Act. The court further noted that the Guardian had considered all relevant factors and exercised their discretion appropriately.

The Supreme Court affirmed the decision of the Children's Guardian and prohibited the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them.

Orders

Orders of the court

(1) The reviewable decision of the Respondent is affirmed.

(2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.

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:	GGS v Children’s Guardian [2025] NSWCATAD 60
Hearing dates:	10 February 2025
Date of orders:	11 March 2025
Decision date:	11 March 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	EA MacIntyre, Senior Member P Foreman, General Member
Decision:	(1) The reviewable decision of the Respondent is affirmed. (2) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.
Catchwords:	ADMINISTRATIVE LAW - administrative review -reviewable decision - review by Civil and Administrative Tribunal ADMINISTRATIVE LAW - refusal of working with children check clearance - no conviction - apprehended domestic violence order - evidence - mandatory considerations - offence - reasonable person test - public interest test
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Children’s Guardian v CF1 [2020] NSWSC 1673 Office of the Children’s Guardian v EQE [2022] NSWSC 871 Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GGS (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (Self-Represented) Crown Solicitor (Respondent)
File Number(s):	2024/00094067
Publication restriction:	Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, his children, former wife or reference to any information, picture or other material that identifies any of them or is likely to lead to the identification of any of them is prohibited.