GNH v Children's Guardian - [2025] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GNH v Children’s Guardian [2025] NSWCATAD 178
Hearing dates: 2 June 2025
Date of orders: 2 June 2025
Decision date: 23 July 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
Emeritus Prof P Foreman AM, General Member
Decision:
(1) The decision of the Respondent dated 3 July 2024 be set aside and substituted with a decision that the Applicant’s working with children check clearance be reinstated.
(2) The Tribunal notes and the parties agree that based on order (1), the Applicant will apply for a new working with children check clearance and the Respondent will grant a working with children check clearance noting the Tribunal’s finding in making Order (1) that the Applicant is not presently a risk to children.

Catchwords:
ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — cancellation of clearance – alleged conduct of domestic abuse — evidence charges dismissed — whether a real and appreciable risk to the safety of children — reasonable person and public interest tests

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
CXZ v Children’s Guardian [2020] NSWCA 338
DAI v Children's Guardian [2017] NSWCATAD 308
DVV v Children's Guardian [2020] NSWCATAD 237
M v M [1988] HCA 68; (1988) 166 CLR 69
McKinnon v Department of Treasury (2005) FCAFC 142
PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
VQB v The Secretary to the Department of Justice [2013] VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:
None cited

Category: Principal judgment
Parties: GNH (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
H Murphy (Respondent)
Solicitors:
Nikola Velcic & Associates (Appellant)
Crown Solicitor (Respondent)

File Number(s): 2024/00278907
Publication restriction: With the exception of officers of government agencies, the 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

On 3 July 2024, the respondent made a decision to cancel the applicant’s working with children check clearance pursuant to s 23(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The applicant, who has been given the pseudonym GNH, was granted a paid working with children clearance on 10 June 2020. He operates a business that requires him to have a clearance: first, because he supervises apprentices who are usually younger than 18 years old and, secondly, because…

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 178
Decision Date: 23 July 2025

CaseChat Overview and Summary

GNH filed an application in the Administrative Appeals Tribunal challenging the decision of the Children's Guardian to cancel their working with children check clearance. The Guardian had cancelled the clearance on the basis of alleged domestic abuse conduct, despite charges related to the conduct being dismissed. The case required the Tribunal to determine whether there was a real and appreciable risk to the safety of children that warranted the cancellation of the clearance. Additionally, the Tribunal had to assess whether the decision was in the public interest and whether it was consistent with the reasonable person test.

The Tribunal examined the evidence and the legal principles that applied to the decision-making process under the Child Protection (Working with Children) Act 2012. It considered the dismissal of charges as a critical factor and evaluated the risk to children based on the available evidence. The Tribunal found that the decision to cancel the clearance was not supported by the evidence, as the Applicant was not presently a risk to children. Furthermore, the Tribunal concluded that the decision did not align with the reasonable person test and was not in the public interest, as it was based on a charge that had been dismissed.

Consequently, the Tribunal set aside the decision of the Children's Guardian dated 3 July 2024 and substituted it with a decision that the Applicant’s working with children check clearance be reinstated. The Tribunal noted that the Applicant would apply for a new clearance, and the Guardian would grant the clearance, considering the Tribunal’s findings. This decision recognised that the original cancellation was not justified and that the Applicant should not be treated as a risk to children based on the dismissed charges.

Orders

Orders of the court

(1) The decision of the Respondent dated 3 July 2024 be set aside and substituted with a decision that the Applicant’s working with children check clearance be reinstated.

(2) The Tribunal notes and the parties agree that based on order (1), the Applicant will apply for a new working with children check clearance and the Respondent will grant a working with children check clearance noting the Tribunal’s finding in making Order (1) that the Applicant is not presently a risk to children.

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:	GNH v Children’s Guardian [2025] NSWCATAD 178
Hearing dates:	2 June 2025
Date of orders:	2 June 2025
Decision date:	23 July 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member Emeritus Prof P Foreman AM, General Member
Decision:	(1) The decision of the Respondent dated 3 July 2024 be set aside and substituted with a decision that the Applicant’s working with children check clearance be reinstated. (2) The Tribunal notes and the parties agree that based on order (1), the Applicant will apply for a new working with children check clearance and the Respondent will grant a working with children check clearance noting the Tribunal’s finding in making Order (1) that the Applicant is not presently a risk to children.
Catchwords:	ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — cancellation of clearance – alleged conduct of domestic abuse — evidence charges dismissed — whether a real and appreciable risk to the safety of children — reasonable person and public interest tests
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 CXZ v Children’s Guardian [2020] NSWCA 338 DAI v Children's Guardian [2017] NSWCATAD 308 DVV v Children's Guardian [2020] NSWCATAD 237 M v M [1988] HCA 68; (1988) 166 CLR 69 McKinnon v Department of Treasury (2005) FCAFC 142 PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 VQB v The Secretary to the Department of Justice [2013] VCAT 789 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GNH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: H Murphy (Respondent) Solicitors: Nikola Velcic & Associates (Appellant) Crown Solicitor (Respondent)
File Number(s):	2024/00278907
Publication restriction:	With the exception of officers of government agencies, the 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.