EJV v Children’s Guardian [2020] NSWCATAD 203

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EJV v Children's Guardian [2020] NSWCATAD 203 Hearing dates: 10 February 2020 and on the papers Date of orders: 14 August 2020 Decision date: 14 August 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member S Davison, General Member Decision: 1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, with the exception of the name of the psychologist who undertook a risk assessment of the applicant and officers of government agencies who provided information to the respondent in the course of her assessment, the publication or broadcasting of the name of the applicant and any person mentioned in these proceedings, or referred to in the documentary material lodged in these proceedings is prohibited. 2. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the matters in issue is dispensed with and the matter is to be decided on the written submissions and the evidentiary material provided to the Tribunal. 3. The decision of the respondent, made on 31 May 2019, to refuse the applicant's application for a working with children check clearance, is set aside. 4. In substitution a decision is made to grant the applicant a working with children check clearance. Catchwords: ADMINISTRATIVE LAW – Child Protection – review of decision to refuse application for a working with children check clearance – applicant subject to a risk assessment – risk assessment trigger events being charges of sexual assault and indecent assault of two children in 1987 – applicant acquitted of all charges - whether applicant a real and appreciable risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Costs in Criminal Proceedings 1967 (NSW) Crimes Act 1900 (NSW) Cases Cited: BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CHB v Children's Guardian [2016] NSWCATAD 214 CTM v Children's Guardian [2016] NSWCATAD 280 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 M v M [1988] HCA 68; (1988) CLR 166 CLR 69 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: EJV (Applicant) Children's Guardian (Respondent) Representation: Counsel: T Anderson (Applicant) M Higgins (Respondent)