DCQ v Children's Guardian - [2017] NSWCATAD 305

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DCQ v Children’s Guardian [2017] NSWCATAD 305
Hearing dates: 27 September 2017
Date of orders: 20 October 2017
Decision date: 20 October 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: R C Titterton, Principal Member
Prof P Foreman AM, General Member
Decision:
The respondent’s decision to cancel the applicant’s Working With Children Check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance - trigger offences against applicant involving a child – whether applicant poses a risk to the safety of children – assessment of risk.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BMU v Children’s Guardian [2015] NSWCATAD 129
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWlRComm 101
YG v GG v Minister for Community Services [2002] NSWCA 247
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34)
Category: Principal judgment
Parties: DCQ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Ms T Stevens (Respondent)
Soplicitors:
Applicant (self-represented)
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00161873
Publication restriction: An order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

By application filed 6 June 2017, the applicant seeks a review of a decision of 28 April 2017 of the respondent, the Children’s Guardian, to refuse to grant him a Working with Children Check Clearance (WWCCC)(the Decision).
The respondent opposes the application and the grant of a WWCCC.
For the reasons that follow, the Tribunal has decided to affirm the decision of the respondent.
Due to the nature of the proceedings, the Tribunal made an order under s 64 of the Civil and Administrative TribunalAct 2013 prohibiting publication or broadcasting of any information that would identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Under this order the applicant, his family and other witnesses and persons including former partners of the applicant and their children, have also been given pseudonyms.

The documents

Prior to the hearing, the applicant filed a bundle of documents including a large number of photographs. His documents included letters of support from…

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 305
Decision Date: 20 October 2017

CaseChat Overview and Summary

The case of DCQ v Children's Guardian involved the applicant, DCQ, challenging the decision by the Children's Guardian to cancel their Working With Children Check clearance. This clearance is essential for individuals working with children in regulated activities. The dispute arose from allegations that DCQ had committed trigger offences involving a child, leading to concerns about their suitability to work with children. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issue before the tribunal was whether DCQ posed a risk to the safety of children. This required a careful assessment of the evidence and the application of relevant legislative provisions governing Working With Children Check clearances. The tribunal had to determine if the Children's Guardian's decision to cancel the clearance was justified based on the evidence of the trigger offences and the risk assessment conducted.

The tribunal examined the evidence regarding the alleged trigger offences and the risk assessment process. It found that the evidence supported the Children's Guardian's conclusion that DCQ posed a risk to children. The tribunal was satisfied that the decision-making process was thorough and the assessment of the risk was appropriate. Consequently, the tribunal affirmed the decision of the Children's Guardian to cancel the applicant's Working With Children Check clearance.

The tribunal's decision affirmed the Children's Guardian's authority to cancel the clearance based on the findings of risk. This outcome underscores the importance of stringent checks in safeguarding children in regulated activities.

Orders

Orders of the court

The respondent’s decision to cancel the applicant’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:	DCQ v Children’s Guardian [2017] NSWCATAD 305
Hearing dates:	27 September 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R C Titterton, Principal Member Prof P Foreman AM, General Member
Decision:	The respondent’s decision to cancel the applicant’s Working With Children Check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance - trigger offences against applicant involving a child – whether applicant poses a risk to the safety of children – assessment of risk.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BMU v Children’s Guardian [2015] NSWCATAD 129 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWlRComm 101 YG v GG v Minister for Community Services [2002] NSWCA 247 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34)
Category:	Principal judgment
Parties:	DCQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms T Stevens (Respondent) Soplicitors: Applicant (self-represented) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00161873
Publication restriction:	An order was made under s 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.