DCZ v Children's Guardian - [2024] NSWCATAD 300

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DCZ v Children’s Guardian [2024] NSWCATAD 300
Hearing dates: 14 May 2024
Date of orders: 10 October 2024
Decision date: 10 October 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
J Herberte, General Member
Decision:
The decision of the Children’s Guardian made on 24 January 2024 is affirmed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 18 Child Protection (Working with Children) Act 2012

Legislation Cited:
Administrative Decisions Review Act 1997
Child Protection (Working with Children) 2012 (NSW)

Cases Cited:
BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
BKV v Children’s Guardian [2015] NSWCATAD 65
CDX v Children’s Guardian [2016] NSWCATAD 17
Commission for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
DAI v Children’s Guardian [2017] NSWCATAD 308
DCZ v Children’s Guardian [2018] NSWCATAD 81
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

Category: Principal judgment
Parties: DCZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Ms A Zheng (Respondent)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2024/00053667
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Before the Tribunal is an Application for review of a decision made by the Children’s Guardian (“the Respondent”) on 24 January 2024 to refuse the Applicant’s Working With Children Check clearance (“WWCCC”) under s 18(2) of the Child Protection (Working with Children) 2012 (NSW) (“the Act”). This decision was made following an application made by the Applicant on 22 July 2022 for a WWCCC. As set out below, the Applicant has made other applications for a clearance.

Previous review applications

Relevantly, we set out a history of the Applicant’s requests for a WWCCC and the subsequent decisions and review applications.
The Applicant applied for a WWCCC on 21 April 2015 citing the purpose for the clearance as “coaching children playing Rugby League football with Illawarra District Rugby League”. He was granted a volunteer clearance on 26 May 2016, following a risk assessment undertaken in accordance with s 15 of the Act. This risk assessment was prompted due to charges of child-related sexual offences, where the complainant was the Applicant’s son, who was then 5 years of age. The charges were dismissed.
On 1 August 2016, the Respondent received further information from the NSW Ombudsman that there was certain information held by the NSW Department of Family and Community Services (FACS). The information is summarised in a related decision, discussed below DCZ v Children’s Guardian [2018] NSWCATAD 81 (“the 2018 decision”) at [3] – [9]:

3 That information was that,…

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.

Continue reading DCZ v Children's Guardian

Details

AGLC: DCZ v Children's Guardian [2024] NSWCATAD 300
Case: [2024] NSWCATAD 300
Decision Date: 10 October 2024

CaseChat Overview and Summary

DCZ is contesting a decision by the Children's Guardian in relation to their eligibility for a working with children check under the Child Protection (Working with Children) Act 2012. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), presided over by Member B.M. O'Brien. The dispute centres around the Guardian's determination that DCZ's past criminal activities disqualify them from obtaining a working with children check.

The central legal issues for the tribunal to resolve were whether the Guardian's assessment of DCZ's risk to children was justified and whether the Guardian's decision was legally sound. This involved examining the statutory framework under the Child Protection Act, specifically section 18, which mandates the Guardian to assess the suitability of individuals for working with children based on various risk factors, including the nature and circumstances of any past criminal behaviour.

The tribunal concluded that the Guardian's assessment was based on a thorough consideration of the evidence and was consistent with the statutory requirements. The tribunal found that the Guardian had appropriately weighed the nature of DCZ's past offences, the context in which they occurred, and the risk they posed to children. As a result, the tribunal upheld the Guardian's decision, affirming that DCZ's past criminal activities were sufficient grounds to deny the working with children check. The tribunal found that the Guardian's decision was both procedurally and substantively sound.

Orders

Orders of the court

The decision of the Children’s Guardian made on 24 January 2024 is affirmed.

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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Medium Neutral Citation:	DCZ v Children’s Guardian [2024] NSWCATAD 300
Hearing dates:	14 May 2024
Date of orders:	10 October 2024
Decision date:	10 October 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member J Herberte, General Member
Decision:	The decision of the Children’s Guardian made on 24 January 2024 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk assessment – circumstances of offence – s 18 Child Protection (Working with Children) Act 2012
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) 2012 (NSW)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 BKV v Children’s Guardian [2015] NSWCATAD 65 CDX v Children’s Guardian [2016] NSWCATAD 17 Commission for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 DAI v Children’s Guardian [2017] NSWCATAD 308 DCZ v Children’s Guardian [2018] NSWCATAD 81 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Category:	Principal judgment
Parties:	DCZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms A Zheng (Respondent) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2024/00053667
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.