GXE v Children's Guardian - [2025] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GXE v Children’s Guardian [2025] NSWCATAD 285
Hearing dates: 25 September 2025
Date of orders: 18 November 2025
Decision date: 18 November 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
A Limbury, General Member
Decision:
The decision of the respondent dated 11 February 2025 be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.

Catchwords:
ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — jurisdiction following amendments under Child Protection (Working with Children) and Other Legislation Amendment Act 2025 — administrative review of refusal — whether a real and appreciable risk to the safety of children — serious allegations of historical sexual abuse — charges withdrawn – no other criminal record, charges or allegations made against the applicant
PROCEDURE — admissibility of documents recording helpline reports – tender of documents authorised

Legislation Cited:
Administrative Decisions Review Act 1997(NSW)
Child Protection Legislation Amendment (Children’s Guardian) Act 2013 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children’s Guardian Act 2019 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014
Civil and Administrative Act 2013 (NSW)

Cases Cited:
Commissioner of Police v Eaton [2013] HCA 2
DAI v Children’s Guardian [2017] NSWCATAD 308
DVV v Children’s Guardian [2020] NSWCATAD 237
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Hogan v Hinch (2011) 243 CLR 506
Mulholland v AEC [2004] HCA 41 at [39]; 220 CLR 181
PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
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:
Explanatory Note to the Child Protection Legislation Amendment (Children’s Guardian) Bill 2013
Second reading speech, 5 August 2025 Hansard, p21

Category: Principal judgment
Parties: GXE (Applicant)
The Children’s Guardian (Respondent)
Representation:
The Applicant (Self-represented)

Solicitor:
Crown Solicitor (Respondent)
Counsel:
J Curtin (Respondent)

File Number(s): 2025/00076902
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 sections 64(1)(a) and (1)(c) 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

Overview

This is an application for review of the decision by the respondent to refuse to grant the applicant a working with children check clearance under the Child Protection (Working with…

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 285
Decision Date: 18 November 2025

CaseChat Overview and Summary

GXE applied to the court for a review of a decision made by the Children’s Guardian under the Child Protection (Working with Children) Act 2012. The Guardian had refused to grant GXE a working with children check clearance due to concerns about the risk posed to children. GXE had faced serious allegations of historical sexual abuse, although the charges were withdrawn and there were no other criminal records, charges, or allegations against GXE. The court was tasked with determining the legality of the Guardian's decision and whether it was appropriate to grant GXE a clearance.

The court had to consider whether the Guardian had correctly exercised their discretion in refusing GXE a working with children check clearance. Specifically, the court examined whether the Guardian's decision was based on a real and appreciable risk to the safety of children, considering the historical allegations against GXE. The admissibility of documents recording helpline reports was authorised, which helped in evaluating the risk assessment made by the Guardian.

The court found that the Guardian had not adequately justified the refusal of a clearance, as there were no current allegations or charges against GXE, and the historical charges were withdrawn. The court held that the Guardian's decision was not supported by the evidence and was therefore unlawful. As a result, the court set aside the Guardian's decision and substituted it with a decision that GXE's working with children check clearance be granted.

Orders

Orders of the court

The decision of the respondent dated 11 February 2025 be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.

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:	GXE v Children’s Guardian [2025] NSWCATAD 285
Hearing dates:	25 September 2025
Date of orders:	18 November 2025
Decision date:	18 November 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member A Limbury, General Member
Decision:	The decision of the respondent dated 11 February 2025 be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.
Catchwords:	ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — jurisdiction following amendments under Child Protection (Working with Children) and Other Legislation Amendment Act 2025 — administrative review of refusal — whether a real and appreciable risk to the safety of children — serious allegations of historical sexual abuse — charges withdrawn – no other criminal record, charges or allegations made against the applicant PROCEDURE — admissibility of documents recording helpline reports – tender of documents authorised
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection Legislation Amendment (Children’s Guardian) Act 2013 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children’s Guardian Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Civil and Administrative Act 2013 (NSW)
Cases Cited:	Commissioner of Police v Eaton [2013] HCA 2 DAI v Children’s Guardian [2017] NSWCATAD 308 DVV v Children’s Guardian [2020] NSWCATAD 237 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Hogan v Hinch (2011) 243 CLR 506 Mulholland v AEC [2004] HCA 41 at [39]; 220 CLR 181 PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 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:	Explanatory Note to the Child Protection Legislation Amendment (Children’s Guardian) Bill 2013 Second reading speech, 5 August 2025 Hansard, p21
Category:	Principal judgment
Parties:	GXE (Applicant) The Children’s Guardian (Respondent)
Representation:	The Applicant (Self-represented) Solicitor: Crown Solicitor (Respondent) Counsel: J Curtin (Respondent)
File Number(s):	2025/00076902
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 sections 64(1)(a) and (1)(c) 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.