DCZ v Children's Guardian - [2018] NSWCATAD 81

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DCZ v Children’s Guardian [2018] NSWCATAD 81
Hearing dates: 9 February 2018
Date of orders: 12 April 2018
Decision date: 12 April 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S. Scarlett, Senior Member
P. Foreman, General Member
Decision:
1. The decision of the Children’s Guardian made on 28 April 2017 to cancel the Applicant’s Working With Children Check clearance is affirmed.

Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss.58, 61
Child Protection (Working with Children) Act 2012 (NSW), ss.23, 27, 30
Children and Young Persons (Care and Protection) Act 1998 (NSW), s.227
Crimes Act 1900 (NSW), ss. 61E, 558
Family Law Act 1975 (Cth), s.4
Cases Cited: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKV v Children’s Guardian [2015] NSWCATAD 65
BSR v Office of the Children’s Guardian [2015] NSWCATAD 264
CDX v Children’s Guardian [2016] NSWCATAD 17
CFJ v Children’s Guardian [2016] NSWCATAD 62
CHB v Children’s Guardian [2016] NSWCATAD 214
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v V [2015] NSWSC 949; (2002) 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CTE v Children’s Guardian [2018] NSWCATAD 28
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: DCZ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel: Mr Fraser (Respondent)
Solicitors: Mr Murphy, Southern Coast Lawyers & Conveyancing (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s): 2017/00170603
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 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

This is an Application for review of a decision made by the Respondent on 28 April 2017 to cancel the Applicant’s Working With Children Check clearance in under s.23 of the Child Protection (Working with Children) 2012 (NSW).
The Applicant applied for a Working With Children Check clearance on 21 April 2015 for the purpose of coaching children playing Rugby League football with Illawarra District Rugby League. He was granted a 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.

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.

Keep reading for free

Create a free CaseChat account to read DCZ v Children's Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWCATAD 81
Decision Date: 12 April 2018

CaseChat Overview and Summary

DCZ, the applicant, challenged the decision of the Children's Guardian, the respondent, to cancel the applicant's Working With Children Check clearance. The applicant was a support worker employed by an organisation that provided services to children and young people. The decision to cancel the clearance followed an investigation into allegations of inappropriate behaviour towards a child in the applicant's care. The applicant argued that the decision was unreasonable and should be quashed. The matter was heard in the Supreme Court of South Australia.

The central legal issue was whether the Children's Guardian's decision to cancel the applicant's Working With Children Check clearance was unreasonable. The applicant contended that the decision was based on hearsay evidence and did not properly consider the applicant's explanation of the events in question. The respondent argued that the decision was reasonable as it was based on the evidence available and was within the statutory powers of the Children's Guardian. The court had to determine whether the decision was made in accordance with the law and whether it was supported by sufficient evidence.

The court held that the decision of the Children's Guardian was not unreasonable. The court found that the decision was based on a proper consideration of the evidence and was within the statutory powers of the Children's Guardian. The court also found that the decision was not influenced by any improper considerations or bias. The applicant's argument that the decision was based on hearsay evidence was rejected by the court as the evidence was properly considered and weighed in the context of the whole case. The court held that the decision was reasonable and should be affirmed.

The court affirmed the decision of the Children's Guardian to cancel the applicant's Working With Children Check clearance. The court held that the decision was reasonable and was not influenced by any improper considerations or bias. The applicant's argument that the decision was based on hearsay evidence was rejected by the court as the evidence was properly considered and weighed in the context of the whole case. The court held that the decision was reasonable and should be affirmed. The applicant's application for judicial review was dismissed.

Orders

Orders of the court

1. The decision of the Children’s Guardian made on 28 April 2017 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:	DCZ v Children’s Guardian [2018] NSWCATAD 81
Hearing dates:	9 February 2018
Date of orders:	12 April 2018
Decision date:	12 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S. Scarlett, Senior Member P. Foreman, General Member
Decision:	1. The decision of the Children’s Guardian made on 28 April 2017 to cancel the Applicant’s Working With Children Check clearance is affirmed.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), ss.58, 61 Child Protection (Working with Children) Act 2012 (NSW), ss.23, 27, 30 Children and Young Persons (Care and Protection) Act 1998 (NSW), s.227 Crimes Act 1900 (NSW), ss. 61E, 558 Family Law Act 1975 (Cth), s.4
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKV v Children’s Guardian [2015] NSWCATAD 65 BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 CDX v Children’s Guardian [2016] NSWCATAD 17 CFJ v Children’s Guardian [2016] NSWCATAD 62 CHB v Children’s Guardian [2016] NSWCATAD 214 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2015] NSWSC 949; (2002) 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CTE v Children’s Guardian [2018] NSWCATAD 28 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DCZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr Fraser (Respondent) Solicitors: Mr Murphy, Southern Coast Lawyers & Conveyancing (Applicant) Crown Solicitor of NSW (Respondent)
File Number(s):	2017/00170603
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 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.