EMS v Children’s Guardian [2022] NSWCATAD 15

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EMS v Children's Guardian [2022] NSWCATAD 15 Hearing dates: 22 September 2021 Date of orders: 14 January 2022 Decision date: 14 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member M Bolt, General Member Decision: (1) Time for the applicant to lodge his application for Administrative Review is extended to 5:00pm 20 November 2020 pursuant s 41 of the Civil and Administrative Tribunal Act 2013. (2) The decision of the respondent dated 14 April 2020 to refuse the applicant's Working With Children Check Clearance is set aside. (3) The respondent is to grant the applicant a Working With Children Check Clearance. Catchwords: ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children's Guardian [2020] NSWCA 338 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children's Guardian v CFW [2016] NSWSC 1406 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Category: Principal judgment Parties: EMS (Applicant) Children's Guardian (Respondent) Representation: Solicitors: Applicant Self-Represented Crown Solicitor (Respondent) File Number(s): 2020/00333135 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.