CNA v Children’s Guardian; CNA v Department of Family and Community Services [2016] NSWCATAD 296

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CNA v Children's Guardian; CNA v Department of Family and Community Services [2016] NSWCATAD 296 Hearing dates: 12 August 2016 Date of orders: 15 December 2016 Decision date: 15 December 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member R Royer, General Member Decision: Application file no 1610228

(1) The decision of the Children's Guardian, made on 5 April 2016, to refuse the applicant's application for a working with children check clearance is set aside.

(2) In substitution for that decision of the Children's Guardian the following decision is made:

The applicant is granted a working with children check clearance.

Application file no 1610229

(3) The applicant's application for review of the decision of the Department of Family and Community Services to remove her grandchildren from her care is dismissed. Catchwords: ADMINISTRATIVE REVIEW – review of a decision by the respondent to refuse the applicant's application for a working with children check clearance – applicant has been the authorised carer of three grandchildren for ten and three years – in 2001 the applicant was convicted of assault occasioning actual harm – the victim was the applicant's daughter who was 14 years of age at the time – whether the applicant poses a real and appreciable risk to the safety of children now. Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Working With Children) Act 2012 Civil and Administrative Tribunal Act 2012 Crimes Act 1900 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 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 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: CNA (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker for the Children's Guardian