GGY v Children's Guardian - [2025] NSWCATAD 63

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GGY v Children’s Guardian [2025] NSWCATAD 63
Hearing dates: 16 October 2024
Date of orders: 13 March 2025
Decision date: 13 March 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Bryant, Senior Member
Emeritus Prof P Foreman AM, General Member
Decision:
(1) The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance is affirmed.
(2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited.
(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited.
(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings is prohibited.

Catchwords:
ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — witnesses not made available for cross-examination — whether the applicant poses a risk to the safety of children

Legislation Cited:
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited:
Arizabaleta v R [2023] NSWCCA 217
BKE v Office of the Children's Guardian [2015] NSWSC 523
CDX v Children’s Guardian [2016] NSWCATAD 17
Children's Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v CVE [2017] NSWSC 1342
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208
Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257
Health Care Complaints Commission v Singh [2023] NSWCATOD 124
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:
None cited.

Category: Principal judgment
Parties: GGY (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
J R Walker (Applicant)
C Chiam (Respondent)
Solicitors:
Carmody Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2024/00068527
Publication restriction: With the exception of expert witnesses and officers of government agencies, the disclosure by way of publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to…

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 63
Decision Date: 13 March 2025

CaseChat Overview and Summary

The applicant, GGY, sought judicial review of a decision by the Children's Guardian, the respondent, to refuse their application for a working with children check clearance. The refusal was based on allegations that GGY had sexually assaulted a child. The applicant contended that the decision was unreasonable because it was based on untested allegations and because they were not given an opportunity to cross-examine the witnesses who made the allegations. The matter was heard by the Civil and Administrative Tribunal (CAT).

The primary legal issue before the Tribunal was whether the Guardian's decision was unreasonable. The Tribunal considered whether the Guardian was entitled to rely on the untested allegations and whether the failure to provide GGY with an opportunity to cross-examine the witnesses rendered the decision unreasonable. The Tribunal also considered the legislative framework and relevant case law in determining the legality of the decision.

The Tribunal held that the Guardian's decision was not unreasonable. The Tribunal found that the Guardian was entitled to rely on the untested allegations as they were of a serious nature and sufficient to justify the Guardian's decision. The Tribunal further found that the failure to provide GGY with an opportunity to cross-examine the witnesses did not render the decision unreasonable. The Tribunal held that the statutory scheme did not require the Guardian to provide GGY with an opportunity to cross-examine the witnesses and that the applicant's rights were adequately protected by the procedures that were followed. The Tribunal affirmed the Guardian's decision.

The Tribunal made several orders, including affirming the Guardian's decision and prohibiting the publication and broadcast of certain parts of the hearing and evidence. The applicant's application for review was dismissed.

Orders

Orders of the court

(1) The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance is affirmed.

(2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited.

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited.

(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings 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:	GGY v Children’s Guardian [2025] NSWCATAD 63
Hearing dates:	16 October 2024
Date of orders:	13 March 2025
Decision date:	13 March 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Bryant, Senior Member Emeritus Prof P Foreman AM, General Member
Decision:	(1) The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance is affirmed. (2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited. (3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited. (4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings is prohibited.
Catchwords:	ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — witnesses not made available for cross-examination — whether the applicant poses a risk to the safety of children
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Arizabaleta v R [2023] NSWCCA 217 BKE v Office of the Children's Guardian [2015] NSWSC 523 CDX v Children’s Guardian [2016] NSWCATAD 17 Children's Guardian v BRL [2016] NSWSC 1206 Children’s Guardian v CVE [2017] NSWSC 1342 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257 Health Care Complaints Commission v Singh [2023] NSWCATOD 124 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 YG and GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	GGY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J R Walker (Applicant) C Chiam (Respondent) Solicitors: Carmody Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2024/00068527
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the disclosure by way of publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to…