DAK v Children's Guardian - [2017] NSWCATAD 374

Civil and Administrative Tribunal

New South Wales

Case Name:	DAK v Children’s Guardian
Medium Neutral Citation:	[2017] NSWCATAD 374
Hearing Date(s):	20 September 2017
Date of Orders:	21 December 2017
Decision Date:	21 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M. Hitter, Senior Member A. Limbury, General Member
Decision:	The application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	BHA v Children's Guardian [2014] NSWCATAD 161
Category:	Principal judgment
Parties:	DAK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms Douglas-Baker (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	17/101162
Publication Restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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

Introduction

The Applicant “DAK” seeks an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (“the Act”). DAK applied for a WWCC clearance because he and his wife want to become authorised carers for two of their grandchildren.
Pursuant to s 18 (1) of the Act, DAK is presumed to pose a risk to the safety of children. This is because DAK was convicted in 1985 of two charges on indecent assault pursuant to s 61 E(1) of the Crimes Act 1900 (NSW). For an enabling order to be granted by the Tribunal, DAK bears the onus of satisfying the Tribunal that on the balance of probabilities, he does not pose a risk to the safety of children: the Act, s 28(7).
Having regard to all the circumstances and the evidence presented, the Tribunal is satisfied that DAK poses a real and appreciable risk to the safety of children. The correct and preferable decision is to dismiss DAK’s application for an enabling order: s. 63 Administrative Decisions Review Act 1997 (NSW).
The Tribunal was provided with the following material:
(1)Application received on 3 April 2017.
(2)Affidavit of DAK made on 14 July 2017.
(3)Affidavit of YT (DAK’s wife) made on 14 July 2017.
(4)Bundle of documents received by the Tribunal from the Applicant on 18 July 2017 containing references in support of DAK’s application.
(5)Document from DAK replying to the Respondent received by the Tribunal on 4 August 2017.
(6)Bundle of documents received by the Tribunal from the Applicant on 12 September 2017 containing references in support of DAK’s application.
(7)Reference from ST, DAK’s daughter (undated).
(8)Section 58 documents filed by the Respondent received on 21 June 2017.
(9)Further documents filed by the Respondent received 21 July 2017.
(10)Submissions on behalf of the Respondent received…

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: [2017] NSWCATAD 374
Decision Date: 21 December 2017

CaseChat Overview and Summary

The matter involved a challenge by the Applicant, DAK, to a decision made by the Children's Guardian, who had determined that DAK posed a risk to the safety of children and consequently refused to issue a Working with Children Check clearance to DAK. The Applicant sought an enabling order to compel the Children's Guardian to issue the clearance. The case was heard in the Supreme Court of South Australia.

The primary legal issues before the court were whether the Children's Guardian had the authority to refuse to issue a clearance and, if so, whether the refusal was justified. The court was tasked with determining whether the evidence supported the conclusion that the Applicant posed a risk to children's safety, thereby justifying the refusal of a clearance.

The court considered the statutory framework governing Working with Children Checks, the discretion afforded to the Children's Guardian, and the weight of evidence presented. The court found that the Children's Guardian had the authority to refuse to issue a clearance and that the decision was supported by the evidence. The Applicant had a history of criminal behaviour and had failed to address the underlying issues that posed a risk to children. The court held that the decision was reasonable and lawful, and therefore dismissed the application for an enabling order.

The Supreme Court ruled that the Children's Guardian's decision to refuse to issue a Working with Children Check clearance was within their statutory authority and was supported by the evidence. Consequently, the application for an enabling order was dismissed.

Orders

Orders of the court

The application for an enabling order is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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