GHM v Children's Guardian - [2025] NSWCATAD 98

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GHM v Children’s Guardian [2025] NSWCATAD 98
Hearing dates: 3 and 4 December 2024
Date of orders: 05 May 2025
Decision date: 05 May 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
E Hayes, General Member
Decision:
The applicant’s application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) is dismissed.

Catchwords:
ADMINISTRAIVE LAW – child protection – working with children check clearance – enabling order – whether application has discharged his onus to rebut the presumption that he poses a risk to the safety of children

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
BKE v Office of the Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v FZ [2011] NSWCA 111
CSW v Children’s Guardian [2017] NSWCATAD 326
DAI v Children’s Guardian [2017] NSWCATAD 308 VQB v The Secretary to the Department of Justice [203] VCAT 789

Texts Cited:
None

Category: Principal judgment
Parties: GHM (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
L Geddes for the Respondent
Solicitors:
S O’Connel (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2024/00152992
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 these proceedings or referred to in the documentary material lodged in these proceedings, with the exception of the name of an expert witness or officer of a government agency, is prohibited.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

The applicant, GHM, seeks an enabling order, under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), declaring that he is not to be treated as a ‘disqualified person’ for the purposes of that Act in respect of the ‘disqualifying offences’ of which he was convicted in July 2014.
The applicant seeks a declaration so that he can be issued with a volunteer working with children check clearance (WWCC clearance) by the respondent, the Children’s Guardian, under the WWC Act.
Prior to making this application, in February 2024, the applicant had applied to the respondent for a WWCC clearance: WWC Act sections 12(1)(a) and 13.
In March 2024, the respondent, as she was required to do, refused the applicant’s application for a WWCC clearance, because he was a ‘disqualified person’ having been convicted in July 2014 of two offences of ‘having sexual intercourse with a person more than 14 years, less than 16 years’ contrary section 66C(3) of the Crimes Act 1900 (NSW)…

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.

Continue reading GHM v Children's Guardian

Details

AGLC: GHM v Children's Guardian [2025] NSWCATAD 98
Case: [2025] NSWCATAD 98
Decision Date: 05 May 2025

CaseChat Overview and Summary

GHM was involved in a legal dispute with the Children’s Guardian regarding their application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW). The Guardian had applied to the Supreme Court of New South Wales for an enabling order to prevent GHM from working with children, due to concerns that GHM posed a risk to the safety of children. The dispute centred around whether GHM had successfully rebutted the presumption that they posed such a risk.

The primary legal issue the court had to decide was whether GHM had discharged their onus to rebut the presumption that they posed a risk to the safety of children. The court examined the evidence presented by both parties to determine whether GHM had adequately demonstrated that they were not a risk to children. The court also had to consider whether the application for the enabling order was justified based on the presumptions and evidence provided.

In assessing the evidence, the court found that GHM had not discharged the onus to rebut the presumption that they posed a risk to children. The court considered various factors, including GHM's criminal history, their attitude towards the risk they pose, and the measures they had taken to mitigate the risk. Ultimately, the court concluded that the presumption had not been sufficiently rebutted, leading to the dismissal of the application for an enabling order.

The court dismissed the application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW). The decision was based on the finding that GHM had not successfully rebutted the presumption that they posed a risk to the safety of children. Consequently, the order sought by the Children’s Guardian was not granted, and GHM's application was dismissed.

Orders

Orders of the court

The applicant’s application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	GHM v Children’s Guardian [2025] NSWCATAD 98
Hearing dates:	3 and 4 December 2024
Date of orders:	05 May 2025
Decision date:	05 May 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member E Hayes, General Member
Decision:	The applicant’s application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) is dismissed.
Catchwords:	ADMINISTRAIVE LAW – child protection – working with children check clearance – enabling order – whether application has discharged his onus to rebut the presumption that he poses a risk to the safety of children
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v FZ [2011] NSWCA 111 CSW v Children’s Guardian [2017] NSWCATAD 326 DAI v Children’s Guardian [2017] NSWCATAD 308 VQB v The Secretary to the Department of Justice [203] VCAT 789
Texts Cited:	None
Category:	Principal judgment
Parties:	GHM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Geddes for the Respondent Solicitors: S O’Connel (Applicant) Crown Solicitor (Respondent)
File Number(s):	2024/00152992
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 these proceedings or referred to in the documentary material lodged in these proceedings, with the exception of the name of an expert witness or officer of a government agency, is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.