CDS v Children's Guardian - [2016] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CDS v Children’s Guardian [2016] NSWCATAD 204
Hearing dates: 22 August 2016
Date of orders: 02 September 2016
Decision date: 02 September 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Anderson, Senior Member
Prof P Foreman, General Member
Decision:
The applicant’s application for an enabling order is dismissed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of an act of indecency on 14 year old girl – whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged
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Child Protection (Prohibited Employment) Act 1998 (Repealed)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
Cases Cited: Commission for Children and Young People v [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
YG and GG v Minister for Community Services [2002] NSWCA 247
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523
BJB v Office of the Children’s Guardian [2014] NSWCATAD 111
M v M [1988] HCA 68; 166 CLR 69
Category: Principal judgment
Parties: CDS (Applicant)
NSW Office of the Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
CDS (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510541
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

REASONS FOR DECISION

Background

On 7 July 2015, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a Working with Children Check clearance.
On 14 August 2015, the Respondent notified the Applicant that his criminal history disclosed a disqualifying offence, namely, a conviction for an act of indecency on female under 16 years, contrary to section 61E(2) of the Crimes Act 1900 (NSW), and as a disqualified person he must not be granted a working with children check clearance.
On 8 September 2015, the Applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (an “enabling order”).
The matter was the subject of directions hearings conducted by the Tribunal, during which the proceedings were explained to the Applicant, who was not legally represented. Orders were made for the filing and service of documents by the parties, and the Applicant was informed of the option of filing a psychological risk assessment report.
The Applicant did not file any expert evidence on the basis that he could not afford to do so. However, the Applicant filed a number of documents, including a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCATAD 204
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case of CDS v Children's Guardian involved a dispute between the applicant, referred to as CDS, and the Children's Guardian. CDS sought an enabling order to engage in activities involving children, despite having a prior conviction for an act of indecency involving a 14-year-old girl. The dispute was adjudicated in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether CDS had successfully discharged the onus of proving that he no longer posed a risk to the safety of children. This involved assessing the nature and seriousness of the previous offence, the applicant's rehabilitation and reintegration into society, and the likelihood of any future risk to children. The court considered whether CDS had taken appropriate steps to address the issues that led to his disqualification and whether he had demonstrated a commitment to preventing any future harm to children.

In its reasoning, the court found that CDS had not adequately discharged the onus of proving that he no longer posed a risk to the safety of children. The court concluded that the severity of the previous offence and the potential for reoffending meant that CDS had not sufficiently demonstrated that he could safely engage in activities involving children. The court emphasised the importance of protecting children and maintaining public confidence in the safety of those working with children. As a result, the court dismissed CDS's application for an enabling order.

Orders

Orders of the court

The applicant’s application for an enabling order is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CDS v Children’s Guardian [2016] NSWCATAD 204
Hearing dates:	22 August 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member Prof P Foreman, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of an act of indecency on 14 year old girl – whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged
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
Cases Cited:	Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69
Category:	Principal judgment
Parties:	CDS (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: CDS (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510541
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.