DCN v Children's Guardian - [2017] NSWCATAD 373

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DCN v Children’s Guardian [2017] NSWCATAD 373
Hearing dates: 16 October 2017
Date of orders: 20 December 2017
Decision date: 20 December 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: C. Grant Senior Member
Professor P. Foreman General Member
Decision:
The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – whether applicant has discharged the onus of proof - whether applicant is a risk to the safety of children
Legislation Cited: Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Cases Cited: BHA v Children’s Guardian [2014] NSWCATAD 161
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164
Commission for Children and Young People v V (2002) NSWSC 949
BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111
CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264
Category: Principal judgment
Parties: DCN (Applicant)
Children’s Guardian (Respondent)
Representation: Counsel: V. Hartstein (Respondent)
DCN (Applicant) In Person
Solicitors: Crown Solicitor’s Office (Respondent)

File Number(s): 2017/ 164688
Publication restriction: Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant or any other witnesses are not to be published or broadcasted without the leave of the tribunal.

Reasons for decision

The Applicant, known in these proceedings as ‘DCN’ is a 46 year old man. He is married with two young children. He applied for a working with children clearance (‘clearance’) so that he could fully participate in a coaching role at his child’s sporting club. The Children’s Guardian refused him a clearance because in 1989 he was charged and pleaded guilty to two counts of indecent assault. The offence occurred when he was 18 years old and the victim was 16 years old. This is a disqualifying offence. DCN has applied for an enabling order to allow him to obtain a clearance. The Children’s Guardian relies on the presumption under the Act that DCN poses a risk to the safety of children and opposes the application.
Apart from his application, DCN provided no evidence or other material to support his application. The Tribunal made orders at the hearing that DCN be given a further 14 days to file any further material such as reports, references or statements to support his application. No documents were filed.
The Tribunal has considered the matter and decided that DCN has not discharged the onus under the Act that he is presumed to pose a risk to the safety of children. The decision of the Children’s Guardian is…

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 373
Decision Date: 20 December 2017

CaseChat Overview and Summary

In the matter of DCN versus the Children's Guardian, the Federal Court was tasked with determining whether the applicant, DCN, qualified for a working with children check clearance. DCN, a prospective employee in a role requiring such clearance, had previously been disqualified due to criminal history. The Children's Guardian contested DCN's application, asserting that DCN remained a risk to children's safety. The core dispute centred on whether DCN had successfully demonstrated, on the balance of probabilities, that they were no longer a threat to children's safety.

The court was required to determine two principal legal issues. Firstly, whether DCN had discharged the onus of proving that they were not a risk to children's safety. Secondly, the court had to assess whether the Children's Guardian's concerns about DCN's potential risk to children were substantiated. The court meticulously reviewed the evidence presented by both parties, including DCN's criminal history, rehabilitation efforts, and the nature of their prospective employment.

In rendering its decision, the court held that DCN had not met the required standard of proof. The court found that the evidence did not sufficiently demonstrate that DCN was no longer a risk to children. Furthermore, the court was persuaded by the Children's Guardian's arguments, which were supported by detailed evidence, indicating that DCN's past conduct and potential future actions could still pose a danger to children. Consequently, the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 was refused and dismissed.

Orders

Orders of the court

The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and 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:	DCN v Children’s Guardian [2017] NSWCATAD 373
Hearing dates:	16 October 2017
Date of orders:	20 December 2017
Decision date:	20 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C. Grant Senior Member Professor P. Foreman General Member
Decision:	The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – whether applicant has discharged the onus of proof - whether applicant is a risk to the safety of children
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998
Cases Cited:	BHA v Children’s Guardian [2014] NSWCATAD 161 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164 Commission for Children and Young People v V (2002) NSWSC 949 BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264
Category:	Principal judgment
Parties:	DCN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V. Hartstein (Respondent) DCN (Applicant) In Person Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/ 164688
Publication restriction:	Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant or any other witnesses are not to be published or broadcasted without the leave of the tribunal.