GHS v Children's Guardian - [2024] NSWCATAD 358

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GHS v Children’s Guardian [2024] NSWCATAD 358
Hearing dates: 9 September 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Bryant, Senior Member
E Hayes, General Member
Decision:
The decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance is affirmed.

Catchwords:
CHILD PROTECTION – Refusal of application for working with children check clearance – Offence triggering risk assessment – Whether applicant poses a risk to the safety of children

Legislation Cited:
Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:
BKE v Office of the Children's Guardian [2015] NSWSC 523
CDX v Children’s Guardian [2016] NSWCATAD 17
Children’s Guardian v CVE [2017] NSWSC 1342 Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
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: GHS (Applicant)
Children’s Guardian (Respondent)
Representation: Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s): 2024/00146622
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 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

Introduction

The applicant seeks administrative review under s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of the respondent’s decision not to grant her a working with children check clearance (WWCCC). The respondent refused the WWCCC following a risk assessment because it is satisfied that the applicant poses a risk to the safety of children.
The applicant applied for a WWCCC on 21 July 2021. The trigger for the respondent’s risk assessment was a conviction that the applicant had received in 2021 for common assault perpetrated against her child.
On 22 February 2024 the respondent notified the applicant that it had refused to grant her a WWCCC under s 18(2) the Act, citing her criminal offending, history of mental ill health, substance abuse and associated unresolved risk factors as grounds for the refusal.
The applicant filed the application with the Tribunal for administrative review on 19 April 2024.
The respondent opposes the application.
If the Tribunal allows the application, it may order the respondent to grant the applicant a WWCCC under 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: [2024] NSWCATAD 358
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the case of GHS v Children's Guardian, the applicant sought a working with children check clearance to enable them to undertake voluntary work with children. The Children’s Guardian refused the application, triggering the applicant's right to appeal to the Children's Court of Victoria. The dispute thus centred on whether the Children's Guardian was correct in refusing the application based on an assessment that the applicant posed a risk to the safety of children. The court was tasked with determining the legal validity of the Guardian's decision and whether there was sufficient evidence to justify the refusal.

The primary legal issue before the court was whether the Children's Guardian had acted within their statutory powers and correctly exercised their discretion when refusing the applicant's working with children check clearance. The court needed to consider the statutory framework governing working with children checks and the criteria the Guardian must apply when assessing an application. It was necessary to examine whether the Guardian's decision was based on appropriate and relevant information and whether there was a rational connection between the information and the decision.

The court examined the statutory provisions and found that the Children's Guardian had correctly applied the relevant criteria and exercised their discretion appropriately. The Guardian's decision was supported by evidence of an offence committed by the applicant that necessitated a risk assessment. The court concluded that the Guardian's assessment that the applicant posed a risk to the safety of children was reasonable and that the Guardian had not erred in law. The court affirmed the decision of the Children's Guardian, upholding the refusal of the applicant's working with children check clearance.

Orders

Orders of the court

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

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:	GHS v Children’s Guardian [2024] NSWCATAD 358
Hearing dates:	9 September 2024
Date of orders:	29 November 2024
Decision date:	29 November 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Bryant, Senior Member E Hayes, General Member
Decision:	The decision of the Children’s Guardian to refuse the applicant’s application for a working with children check clearance is affirmed.
Catchwords:	CHILD PROTECTION – Refusal of application for working with children check clearance – Offence triggering risk assessment – Whether applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	BKE v Office of the Children's Guardian [2015] NSWSC 523 CDX v Children’s Guardian [2016] NSWCATAD 17 Children’s Guardian v CVE [2017] NSWSC 1342 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 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:	GHS (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (self-represented) Crown Solicitor (Respondent)
File Number(s):	2024/00146622
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 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.