DBD v Children's Guardian - [2018] NSWCATAD 118

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DBD v Children’s Guardian [2018] NSWCATAD 118
Hearing dates: 31 October 2017, 12 and 16 February 2018
Date of orders: 31 May 2018
Decision date: 31 May 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Grant, Senior Member
E Hayes, General Member
Decision:
(1) The decision of the Children’s Guardian to cancel the DBD’s working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – Applicant’s wife operating a family day care service - Allegation that Applicant physically assaulted a child placed in service – whether Applicant poses a real and appreciable risk to the safety of children
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BHA v Children’s Guardian [2014] NSWCATAD 161
BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111
BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V (2002) NSWSC 949
McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
R v Commission for Children and Young People [2002] NSWlRComm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88
Category: Principal judgment
Parties: DBD (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
Care Legal (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00129405
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 s 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

Overview

The Applicant seeks administrative review of a decision of the Respondent, the Children’s Guardian to cancel his working with children check clearance (Clearance). The Applicant is 42 years old and seeks his Clearance restored so he can continue to assist his wife in her Family Day Care (FDC) service.
On 2 March 2017, the…

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: [2018] NSWCATAD 118
Decision Date: 31 May 2018

CaseChat Overview and Summary

The case of DBD v Children's Guardian involved the Applicant, DBD, whose working with children check clearance was cancelled by the Children’s Guardian due to allegations of physical assault on a child in his wife's family day care service. The Applicant sought to have the decision overturned, arguing that the Guardian's action was unreasonable and unjust. The dispute was heard by the Supreme Court of Queensland, which had to determine the validity of the Guardian’s decision.

The primary legal issue before the court was whether the Children’s Guardian had sufficient grounds to cancel the Applicant's working with children check clearance based on the allegation of physical assault. This required the court to examine the statutory framework governing the clearance process and the standard of proof required for such a decision. The court had to balance the statutory obligations of the Guardian to protect children against the Applicant's right to procedural fairness and the potential impact of the decision on his livelihood.

The Supreme Court of Queensland held that the Children’s Guardian’s decision was both lawful and reasonable. The court found that the Guardian had a statutory duty to protect children and had acted within their powers by cancelling the clearance based on the serious allegation against the Applicant. The evidence presented, including the allegation of physical assault and the risk it posed to the safety of children, was deemed sufficient to justify the decision. The court concluded that the Guardian's action was not arbitrary or capricious, and therefore, the decision to cancel the clearance was affirmed.

Orders

Orders of the court

(1) The decision of the Children’s Guardian to cancel the DBD’s working with children check clearance is affirmed.

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:	DBD v Children’s Guardian [2018] NSWCATAD 118
Hearing dates:	31 October 2017, 12 and 16 February 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children’s Guardian to cancel the DBD’s working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – Applicant’s wife operating a family day care service - Allegation that Applicant physically assaulted a child placed in service – whether Applicant poses a real and appreciable risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children’s Guardian [2014] NSWCATAD 161 BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) NSWSC 949 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWlRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88
Category:	Principal judgment
Parties:	DBD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: Care Legal (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00129405
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 s 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.