GYV v Children's Guardian - [2025] NSWCATAD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GYV v Children’s Guardian [2025] NSWCATAD 208
Hearing dates: 23 June 2025
Date of orders: 19 August 2025
Decision date: 19 August 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr L Kirk, Senior Member
A Limbury, General Member
Decision:
(1) Pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction for two counts of assault with intent to commit rape in contravention of s 49 of the Criminal Law Consolidation Act, 1935-1966 (SA), which is equivalent to s 61D of the Crimes Act 1900 (NSW).
(2) Pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) the Tribunal orders the Children’s Guardian to grant the Applicant a Working with Children clearance.

Catchwords:
ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Legislation Cited:
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Crimes Act 1910
Criminal Law Consolidation Act, 1935-1966 (SA)

Cases Cited:
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BKE v Office of the Children's Guardian [2015] NSWSC 523
Children’s Guardian v CVE [2017] NSWSC 1342
CGR v Children’s Guardian [2017] NSWCATAD 295
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CTE v Children’s Guardian [2018] NSWCATAD 28
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAI v Children’s Guardian [2017] NSWCATAD 308
ECQ v The Children’s Guardian [2021] NSWCATAD 217
FFB v Children’s Guardian [2022] NSWCATAD 71
Office of the Children’s Guardian v EQE [2022] NSWSC 871
OYJ v Secretary to the Department of Justice &
Regulation (Review and Regulation) [2019] VCAT 33
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
R v Commission for Children and Young People [2002] NSWIRComm 101
VQB v The Secretary to the Department of Justice [2013] VCAT 789

Texts Cited:
None cited

Category: Principal judgment
Parties: GYQ (Applicant)
Children’s Guardian (Respondent)
Representation:
HBD (Agent) – (Applicant)

Counsel:
A Mykkeltvedt (Respondent)
Solicitors:
Crown Solicitor

File Number(s): 2025/00149770
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…

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 208
Decision Date: 19 August 2025

CaseChat Overview and Summary

In the case of GYV v Children's Guardian, the applicant, GYV, sought an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW), which would allow them to obtain a Working with Children clearance despite a prior conviction in South Australia for two counts of assault with intent to commit rape. The application was before the Tribunal, which had the authority to grant the relief sought. The Children's Guardian opposed the application, arguing that GYV's criminal history made them unsuitable for work with children.

The primary legal issue before the Tribunal was whether the applicant's criminal history disqualified them from obtaining a Working with Children clearance under the relevant legislation. Specifically, the Tribunal needed to determine if the applicant's convictions were equivalent to the crimes listed in the NSW Act that would typically disqualify an individual from working with children. Furthermore, the Tribunal had to assess whether the applicant's rehabilitation and circumstances warranted an exception to the general rule.

In its decision, the Tribunal found that the applicant's convictions, while serious, were not equivalent to the crimes listed in the NSW Act that would automatically disqualify them from obtaining a clearance. The Tribunal noted the applicant's rehabilitation efforts, their expressed remorse, and the time elapsed since the convictions. The Tribunal concluded that these factors, combined with the applicant's current circumstances, warranted granting the enabling order and clearance. The Tribunal emphasised the importance of balancing the protection of children with the potential benefits of allowing individuals with past criminal convictions to reintegrate into society and contribute positively.

The Tribunal made two orders under section 28 of the Child Protection (Working with Children) Act 2012. Firstly, it declared that the applicant was not to be treated as a disqualified person in respect of their convictions. Secondly, it ordered the Children's Guardian to grant the applicant a Working with Children clearance.

Orders

Orders of the court

(1) Pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction for two counts of assault with intent to commit rape in contravention of s 49 of the Criminal Law Consolidation Act, 1935-1966 (SA), which is equivalent to s 61D of the Crimes Act 1900 (NSW).

(2) Pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) the Tribunal orders the Children’s Guardian to grant the Applicant a Working with Children clearance.

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:	GYV v Children’s Guardian [2025] NSWCATAD 208
Hearing dates:	23 June 2025
Date of orders:	19 August 2025
Decision date:	19 August 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr L Kirk, Senior Member A Limbury, General Member
Decision:	(1) Pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction for two counts of assault with intent to commit rape in contravention of s 49 of the Criminal Law Consolidation Act, 1935-1966 (SA), which is equivalent to s 61D of the Crimes Act 1900 (NSW). (2) Pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) the Tribunal orders the Children’s Guardian to grant the Applicant a Working with Children clearance.
Catchwords:	ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012
Legislation Cited:	Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1910 Criminal Law Consolidation Act, 1935-1966 (SA)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the Children's Guardian [2015] NSWSC 523 Children’s Guardian v CVE [2017] NSWSC 1342 CGR v Children’s Guardian [2017] NSWCATAD 295 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CTE v Children’s Guardian [2018] NSWCATAD 28 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAI v Children’s Guardian [2017] NSWCATAD 308 ECQ v The Children’s Guardian [2021] NSWCATAD 217 FFB v Children’s Guardian [2022] NSWCATAD 71 Office of the Children’s Guardian v EQE [2022] NSWSC 871 OYJ v Secretary to the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 R v Commission for Children and Young People [2002] NSWIRComm 101 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GYQ (Applicant) Children’s Guardian (Respondent)
Representation:	HBD (Agent) – (Applicant) Counsel: A Mykkeltvedt (Respondent) Solicitors: Crown Solicitor
File Number(s):	2025/00149770
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…