Children’s Guardian v CF1 [2020] NSWSC 1673

Supreme Court New South Wales

Medium Neutral Citation: Children's Guardian v CF1 [2020] NSWSC 1673 Hearing dates: 3 November 2020 Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a working with children check clearance is set aside. (2) Remit the proceedings to the Tribunal, differently constituted, to be determined according to law. Catchwords: ADMINISTRATIVE LAW - judicial review - appeal from decision of New South Wales Civil and Administrative Tribunal - working with Children clearance - where defendant was charged with multiple counts of sexual intercourse and sexual assault of a minor - where charges did not proceed to Court because complainant did not want to give evidence - whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act - where Tribunal conflated concepts of not being satisfied offences occurred and finding that allegations were groundless - where Tribunal erred in finding allegations groundless - where Tribunal erred in giving negligible weight to witness statements - where undue weight placed on evidence not being tested in circumstances where defendant did not require witnesses for cross-examination - where denial of procedural fairness - decision set aside and matters remitted to tribunal Legislation Cited: Child Protection (Working with Children) Act 2012 No. 51 (NSW) ss 5, 14, 15, 18, 30, Sch 1 Civil and Administrative Tribunal Act 2013 (NSW) Sch 3 Cases Cited: Children's Guardian v BRL [2016] NSWSC 1206 Children's Guardian v CXZ [2019] NSWSC 1083 DVY v Children's Guardian [2020] NSWCATAD 151 M v M (1988) 166 CLR 69 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Texts Cited: Nil Category: Procedural and other rulings Parties: Children's Guardian (Plaintiff) CF1 (Defendant) Representation: Counsel: J Emmett & J Brezniak (Plaintiff) D McGirr (Defendant)