CQX v Children’s Guardian [2017] NSWCATAD 286

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CQX v Children's Guardian [2017] NSWCATAD 286 Hearing dates: 10 March 2017, 12 May 2017(submissions closed 30/6/2017) Date of orders: 25 September 2017 Decision date: 25 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer Senior Member B Field General Member Decision: (1) The decision of the respondent dated 27 June 2016 to refuse to grant the applicant 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: CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27 – Whether inconsistencies in evidence constitutes breach of section 27 duty – Whether circumstances of conflicting evidence equate to risk to children – whether risk real and appreciable – Expert evidence- Character of applicant – Whether character necessarily in issue Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998(Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Criminal Records Act 1991 Cases Cited: AYU v NSW Office of the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 CGP v Children's Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v CKF [2017] NSWSC 893 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 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 M v M (1988) 166 CLR (HCA) Makita Australia v Sprowles [2001] NSWCA 305 Office of the Children's Guardian v CFW [2016] NSWSC 1406 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. Tilley v Children's Guardian [2017] NSWCA 174 Texts Cited: Butterworth's Concise Australian Legal Dictionary (second edition) 1998 LexisNexis Concise Australian legal Dictionary 4th Edition 2011 Category: Principal judgment Parties: CQX (Applicant) Children's Guardian (Respondent) Representation: Counsel: C Doosey (Applicant) V Hartstein (Respondent)