CXZ v Children’s Guardian [2020] NSWCA 338

CXZ v Children’s Guardian [2020] NSWCA 338

The Tribunal is not required to engage in a mandatory three-step process for each allegation when assessing risk under s 18(2); rather, it must assess whether on all the evidence, having regard to allegations neither substantiated nor dismissed, the applicant poses a real risk to the safety of children. The primary judge's conclusion that the Tribunal failed to assess the cumulative weight of the allegations was in error, as the Tribunal considered all evidence and discharged its statutory function correctly.

Parties
Applicant: CXZ; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Appeal / Court of Appeal From Supreme Court Decision
Outcome
Appeal allowed, orders of the Supreme Court set aside.
Legal Topics
Working With Children Check, Risk Assessment, Statutory Interpretation, Administrative Review, Principles for Assessing Risk, Standards of Proof in Administrative Decisions
Administrative Law Child Protection Family Law Judicial Review Working With Children Check Risk Assessment Statutory Interpretation Administrative Review +2 more

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Parties

CXZ

Applicant

Children's Guardian

Respondent

Procedural Posture

Appeal / Court of Appeal From Supreme Court Decision

Legal Issues

  1. 1 Does a proposed appeal raise an issue of principle sufficient to warrant leave to appeal?
  2. 2 Did the primary judge err in finding a mandatory three-step process for allegations under s 18 of the Child Protection (Working with Children) Act 2012 (NSW)?
  3. 3 Should a 'lingering doubt' count against an applicant in risk assessment under the Act?

Ratio Decidendi

The Tribunal is not required to engage in a mandatory three-step process for each allegation when assessing risk under s 18(2); rather, it must assess whether on all the evidence, having regard to allegations neither substantiated nor dismissed, the applicant poses a real risk to the safety of children. The primary judge's conclusion that the Tribunal failed to assess the cumulative weight of the allegations was in error, as the Tribunal considered all evidence and discharged its statutory function correctly.

Court Disposition

Appeal allowed, orders of the Supreme Court set aside.

Orders

  • Leave granted to appeal against the orders of 4 September 2019;
  • Appeal allowed;