DBF v Children's Guardian - [2018] NSWCATAD 119

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DBF v Children’s Guardian [2018] NSWCATAD 119
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 DBF’s working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – Applicant operating a family day care service - Allegation against Applicant’s husband of physically assaulting a child placed in the service – obligation to act protectively towards children - 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)
Education and Care Services National Regulations 2006 (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
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;
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: DBF (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
Care Legal (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/000129369
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 her working with children check clearance (Clearance). The applicant is 41 years old and seeks to have her Clearance restored so she can continue working as a registered…

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 119
Decision Date: 31 May 2018

CaseChat Overview and Summary

The matter before the court involved the cancellation of the Applicant’s working with children check clearance by the Children's Guardian. The Applicant, who operated a family day care service, was subject to an allegation that her husband had physically assaulted a child placed in the service. The legal issue for determination was whether the Applicant posed a real and appreciable risk to the safety of children, thereby warranting the cancellation of her clearance. The court examined whether the Children's Guardian's decision was lawful, reasonable, and justified under the statutory framework.

The court found that the Children's Guardian had a statutory obligation to act protectively towards children and had the discretion to cancel a clearance if there was a real and appreciable risk to the safety of children. The evidence presented indicated that the Applicant's husband had a history of violence and that the Applicant had failed to adequately protect the child in her care. The court held that the Guardian’s decision was based on a proper consideration of the relevant factors and was therefore lawful. The risk to the safety of children was deemed significant enough to justify the cancellation of the clearance.

Given the findings, the court affirmed the decision of the Children's Guardian to cancel the Applicant’s working with children check clearance. The court found no grounds to overturn the decision, emphasising the importance of prioritising child safety in such matters. The Applicant’s appeal was dismissed, and the clearance cancellation was upheld.

Orders

Orders of the court

(1) The decision of the Children’s Guardian to cancel the DBF’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:	DBF v Children’s Guardian [2018] NSWCATAD 119
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 DBF’s working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – Applicant operating a family day care service - Allegation against Applicant’s husband of physically assaulting a child placed in the service – obligation to act protectively towards children - 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) Education and Care Services National Regulations 2006 (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 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; 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:	DBF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: Care Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/000129369
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.