DEG v Children's Guardian - [2018] NSWCATAD 241

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DEG v Children’s Guardian [2018] NSWCATAD 241
Hearing dates: 21 May 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
L Houlahan, General Member
Decision:
The decision of the Children’s Guardian to refuse to grant the applicant a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – Working with children – Whether applicant poses a risk to the safety of children – Where applicant committed offences of violence over a ten-year period – Where last offence occurred four years ago – Where large number of apprehended violence orders made against applicant - Where applicant committed to a life without violence after committing to Christianity in 2014 – Where applicant has expressed remorse for crimes – Whether applicant fully candid with Tribunal
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: BKE v Office of the Children’s Guardian [2015] NSWSC 523
CFJ v Children’s Guardian [2016] NSWCATAD 62
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v V [2002] NSWSC 949
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
Lokondo v Commissioner of Police [2017] NSWCATAP 137
Category: Principal judgment
Parties: DEG (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
Applicant Self Represented
Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00248496
Publication restriction: A non-publication order has been made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

The main issue in these proceedings is whether the applicant should be granted a working with children check clearance.
The applicant has an extensive criminal history. Between 2004 and 2014, he was convicted of several offences involving violence. A large number of apprehended violence orders have been made against him and several adverse reports were made against him to Family and Community Services (“FACS”).
The applicant acknowledges that he behaved violently and unacceptably in the past, attributing this to the domestic violence he was subjected to as a child. However, he says that he had a religious experience in 2014, which turned his life around. Since that time he has taken steps to become a better man and a better parent to his children, including by seeing a counsellor and doing parenting and anger management courses.
We accept that the applicant has made significant changes to his life since mid-2014. He has gained in insight and has become a better person. He has expressed genuine remorse for his past actions. His efforts to put his violent conduct behind him are to be commended.
However, we are not satisfied that the transformation is as complete as the applicant claims. There were some aspects of his evidence which were not…

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 DEG v Children's Guardian

Details

AGLC: DEG v Children's Guardian [2018] NSWCATAD 241
Case: [2018] NSWCATAD 241
Decision Date: 17 October 2018

CaseChat Overview and Summary

The matter between DEG and the Children's Guardian was heard by the Administrative Appeals Tribunal. The applicant sought a review of the Children's Guardian's decision to deny them a working with children check clearance. The applicant had a history of violent offences spanning over a decade, with the most recent occurring four years ago. Additionally, numerous apprehended violence orders had been made against the applicant. The applicant had committed to a life without violence following their conversion to Christianity in 2014 and expressed remorse for their past actions. The central issue before the tribunal was whether the applicant posed a risk to the safety of children and whether they had been fully candid with the tribunal.

The tribunal considered the applicant's history of violence, their commitment to a life without violence, and their expressions of remorse. However, the tribunal also noted that the applicant had not been entirely candid with them, which raised concerns about their suitability to work with children. The tribunal found that despite the applicant's remorse and commitment to a life without violence, their history of violent offences and lack of candor demonstrated a risk to the safety of children. The tribunal concluded that the Children's Guardian's decision to deny the applicant a working with children check clearance was reasonable.

The tribunal affirmed the Children's Guardian's decision to refuse to grant the applicant a working with children check clearance. The tribunal found that the applicant's history of violence, despite their commitment to a life without violence and expressions of remorse, demonstrated a risk to the safety of children. The tribunal also noted the applicant's lack of candor, which raised further concerns about their suitability to work with children. The tribunal was satisfied that the Children's Guardian's decision was reasonable and affirmed it.

Orders

Orders of the court

The decision of the Children’s Guardian to refuse to grant the applicant a working with children check clearance 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:	DEG v Children’s Guardian [2018] NSWCATAD 241
Hearing dates:	21 May 2018
Date of orders:	17 October 2018
Decision date:	17 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member L Houlahan, General Member
Decision:	The decision of the Children’s Guardian to refuse to grant the applicant a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Working with children – Whether applicant poses a risk to the safety of children – Where applicant committed offences of violence over a ten-year period – Where last offence occurred four years ago – Where large number of apprehended violence orders made against applicant - Where applicant committed to a life without violence after committing to Christianity in 2014 – Where applicant has expressed remorse for crimes – Whether applicant fully candid with Tribunal
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian [2015] NSWSC 523 CFJ v Children’s Guardian [2016] NSWCATAD 62 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 Lokondo v Commissioner of Police [2017] NSWCATAP 137
Category:	Principal judgment
Parties:	DEG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Applicant Self Represented Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00248496
Publication restriction:	A non-publication order has been made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.