(1) The decision of the Children’s Guardian dated 3 August 2023 to refuse to grant the applicant a working with children check clearance is affirmed.
(2) Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 2 in orders made on 23 April 2024 is varied to read as follows: “The disclosure of the name of any child contained in documents lodged with the Tribunal in these proceedings is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.”
(3) Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 3 in orders made on 23 April 2024 is varied to read as follows: “The publication of matters contained in the report of a Consultant and Forensic Psychiatrist lodged with the Tribunal in relation to these proceedings is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.”
(4) Order (4) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated, and the name of the applicant will no longer be anonymised.
ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 (NSW) — Risk assessment due to the presence of records concerning the applicant that were relevant to the safety of children — Criminal record including conviction for indecent exposure in 1977 — Multiple complaints by members of the general public against applicant for offending behaviour in the context of public transport workplace resulting in cancellation of taxi driver authority in 2014 — Use carriage service to menace/harass/offend in 2017 — Current and ongoing publication of offending comments vilifying homosexual community on YouTube platform and whether psychological harm may be caused to gay and lesbian children as a result — Likelihood of the applicant repeating his behaviour due to his unwillingness and/or inability to cease publishing further offending statements.
[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 Sunol v Children's Guardian
Sign in free to access the full text
Details
AGLC
Sunol v Children's Guardian [2024] NSWCATAD 319
Case
[2024] NSWCATAD 319
Decision Date
CaseChat Overview and Summary
The parties involved in the case were Sunol and the Children's Guardian, with the dispute concerning the latter's refusal to grant Sunol a working with children check clearance. The case was heard in the Civil and Administrative Tribunal of New South Wales. The applicant, Sunol, sought a review of the decision under the Child Protection (Working with Children) Act 2012 (NSW). The crux of the matter was the presence of records relevant to Sunol's safety and the safety of children, including a criminal record from 1977, complaints of inappropriate behaviour in a public transport workplace, and ongoing publication of offensive comments targeting the homosexual community.
The legal issues that the court was required to decide centred on the interpretation and application of the Child Protection (Working with Children) Act 2012 (NSW). Specifically, the court needed to determine whether the records pertaining to Sunol's past criminal activities, workplace misconduct, and current online behaviour justified the Children's Guardian's decision to withhold a working with children check clearance. The court also had to consider the potential psychological harm that Sunol's conduct might cause to children, particularly those from the gay and lesbian community, and assess the likelihood of Sunol repeating his behaviour.
The court found that the records presented a significant risk to the safety of children, justifying the Children's Guardian's decision to deny a working with children check clearance to Sunol. The court noted Sunol's past criminal conviction, multiple complaints of inappropriate behaviour, and ongoing publication of offensive comments, which collectively indicated a pattern of conduct that posed a risk to children. Additionally, the court highlighted Sunol's unwillingness and inability to cease publishing offensive content, further supporting the decision to withhold clearance. The court also made orders to protect sensitive information, prohibiting the disclosure of certain details related to the case.
Orders
Orders of the court
(1) The decision of the Children’s Guardian dated 3 August 2023 to refuse to grant the applicant a working with children check clearance is affirmed.
(2) Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 2 in orders made on 23 April 2024 is varied to read as follows: “The disclosure of the name of any child contained in documents lodged with the Tribunal in these proceedings is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.”
(3) Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 3 in orders made on 23 April 2024 is varied to read as follows: “The publication of matters contained in the report of a Consultant and Forensic Psychiatrist lodged with the Tribunal in relation to these proceedings is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.”
(4) Order (4) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated, and the name of the applicant will no longer be anonymised.
(5) Order (5) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated.