CWW v Children’s Guardian [2018] NSWCATAD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CWW v Children's Guardian [2018] NSWCATAD 19 Hearing dates: 25 October 2017 Date of orders: 22 January 2018 Decision date: 22 January 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Dr B Field, General Member Decision: 1. The respondent's decision made on 16 November 2016 to refuse the applicant's application for a working with children check clearance is set aside.

2. In substitution for that decision a decision is made to grant the applicant with a working with children check clearance. Catchwords: ADMINISTRATIVE REVIEW – review of a decision by the respondent to refuse the applicant's application for a working with children check clearance – in July 2014 the applicant was charged with a disqualifying offence (sexual intercourse without consent) – seven weeks after the alleged offence, the victim, the applicant's partner, gave a statement to police retracting her earlier evidence of an alleged sexual assault – police withdrew the charge – s 30(1) risk assessment as to whether the applicant poses a real and appreciable risk to the safety of children – Tribunal not satisfied the applicant poses a risk to the safety of children and also satisfied of the matters in s 30(1A) of the Child Protection (Working with Children) Act 2013. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 Children and Young Persons (Care and Protection) Act (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Working with Children Act 2005 (Vic) 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 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CTM v Children's Guardian [2016] NSWCATAD 280 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 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 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: CWW (Applicant) Children's Guardian (Respondent) Representation: Counsel: L Andelman for the Applicant G Moore for the Respondent