CEY v Children’s Guardian [2016] NSWCATAD 231

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CEY v Children's Guardian [2016] NSWCATAD 231 Hearing dates: 6 June 2016 Date of orders: 13 October 2016 Decision date: 13 October 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Professor P Foreman, General Member Decision: (1) The respondent's decision, made on 28 September 2015, to refuse the applicant's application for a working with children check clearance is set aside.

(2) In substitution for that decision the following decision is made: The applicant is granted a working with children check clearance. Catchwords: ADMINISTRATIVE REVIEW – Child Protection – review of decision of the respondent to refuse the applicant's application for a working with children check clearance – in 1996 the applicant was charged for an offence of "aggravated sexual assault" contrary to subsection 61J(1) of the Crimes Act 1900 – the victim of the offence was not a child - the charge was subsequently withdrawn and dismissed –in 2006 concerns were also raised about the applicant having an adequate understanding of appropriate boundaries - respondent was satisfied on the basis of a risk assessment that the applicant poses a real and appreciable risk to the safety of children – on review, found that the decision of the respondent was not the correct and preferred decision and should be set aside. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Cases Cited: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 Category: Principal judgment Parties: CEY (Applicant) Children's Guardian (Respondent) Representation: Counsel: L Karp (Applicant) I Fraser (Respondent)