CYO v Children's Guardian - [2019] NSWCATAD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CYO v Children’s Guardian [2019] NSWCATAD 55
Hearing dates: 20 November 2017, 13 March 2018, 23 and 24 August 2018Final written submissions received 23 October 2018
Date of orders: 08 April 2019
Decision date: 08 April 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Organ, Senior Member
R Royer, General Member
Decision:
1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency in authority (2 counts) Crimes Act 1900 (NSW) s 61E (1A)

2. Pursuant to s 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW) the respondent is ordered to grant the applicant a Working With children Check clearance.
3. The applicant’s application for costs is dismissed
Catchwords: ADMINISTRATIVE LAW- Working with children-Application for enabling order – Where applicant indecently assaulted a child 30 years ago – Where applicant charged with other sexual offences but charges withdrawn- where workplace investigation found allegations sustained- whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children-costs
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900(NSW)
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AYU v NSW Office of the Children’s Guardian NSWCATAD 69
BHA v Children’s Guardian [2014] NSWCATAD 161
BKE v Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATD 214
Children’s Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v CKF [2017] NSWSC 893
Department of Justice v PMY [2012] VSCA 143
Secretary Department of Justice v LMB, Secretary
VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category: Principal judgment
Parties: CYO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Mr L Fernandez (Applicant)
Ms E Windsor (Respondent)
Solicitors:
Randall Legal (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00051776
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Summary

The applicant applied for an enabling order to allow him to work with children. He was barred from working with children without an enabling order because he was convicted of two offences of indecent assault against a child under 16 years and in authority.…

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: [2019] NSWCATAD 55
Decision Date: 08 April 2019

CaseChat Overview and Summary

The applicant in this case sought a declaration that they were not a disqualified person under the Child Protection (Working with Children) Act 2012 (NSW) in relation to a charge of indecent assault from 30 years ago. The applicant had been charged with other sexual offences but those charges were later withdrawn. A workplace investigation found that the allegations of indecent assault were sustained. The Children's Guardian opposed the application and the court was required to determine whether the applicant had discharged the onus of rebutting the statutory presumption that he posed a risk to the safety of children. The court also had to consider the application for costs made by the applicant.

The court held that the applicant had not discharged the onus of rebutting the presumption that he posed a risk to children. The court found that the applicant's evidence was not credible and that there was no basis for concluding that the applicant was not a risk to children. The court also noted that the applicant had a history of offending against children and that this history was relevant to the assessment of risk. The court rejected the applicant's argument that the passage of time should be taken into account in assessing risk. The court held that the applicant had not made out a case for a declaration that he was not a disqualified person and dismissed the application for costs.

The orders of the court were that the applicant was not to be treated as a disqualified person in respect of the offence of assault with an act of indecency. The court also ordered the Children's Guardian to grant the applicant a Working With children Check clearance. The applicant's application for costs was dismissed.

Orders

Orders of the court

1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency in authority (2 counts) Crimes Act 1900 (NSW) s 61E (1A)

2. Pursuant to s 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW) the respondent is ordered to grant the applicant a Working With children Check clearance.

3. The applicant’s application for costs 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:	CYO v Children’s Guardian [2019] NSWCATAD 55
Hearing dates:	20 November 2017, 13 March 2018, 23 and 24 August 2018Final written submissions received 23 October 2018
Date of orders:	08 April 2019
Decision date:	08 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, Senior Member R Royer, General Member
Decision:	1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency in authority (2 counts) Crimes Act 1900 (NSW) s 61E (1A) 2. Pursuant to s 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW) the respondent is ordered to grant the applicant a Working With children Check clearance. 3. The applicant’s application for costs is dismissed
Catchwords:	ADMINISTRATIVE LAW- Working with children-Application for enabling order – Where applicant indecently assaulted a child 30 years ago – Where applicant charged with other sexual offences but charges withdrawn- where workplace investigation found allegations sustained- whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children-costs
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900(NSW) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AYU v NSW Office of the Children’s Guardian NSWCATAD 69 BHA v Children’s Guardian [2014] NSWCATAD 161 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATD 214 Children’s Guardian v BRL [2016] NSWSC 1206 Children’s Guardian v CKF [2017] NSWSC 893 Department of Justice v PMY [2012] VSCA 143 Secretary Department of Justice v LMB, Secretary VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	CYO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr L Fernandez (Applicant) Ms E Windsor (Respondent) Solicitors: Randall Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00051776
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.