DES v Children's Guardian - [2018] NSWCATAD 198

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DES v Children’s Guardian [2018] NSWCATAD 198
Hearing dates: 4 June 2018
Date of orders: 28 August 2018
Decision date: 28 August 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Grant, Senior Member
S Davison, General Member
Decision:
The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant charged with sexual assault but charge did not proceed – reports of child abuse to department – whether applicant poses a risk to safety of children – assessment of risk – correct and preferable decision
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BHA v Children’s Guardian [2014] NSWCATAD 161
BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111
BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR
CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V (2002) NSWSC 949
McDonald v Director General of Social Security (1984)1 FCR 354;
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
R v Commission for Children and Young People [2002] NSWlRComm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88
Category: Principal judgment
Parties: DES (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Applicant unrepresented
M Giacomo (Respondent)
Solicitors:
Crown Solicitors (Respondent)

File Number(s): 2017/ 000366847
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 including mandatory reporters or risk of harm reporters 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

Overview

The applicant seeks administrative review of a decision of the respondent, the Children’s Guardian, to cancel his working with children check clearance (Clearance). The applicant is 61 years old and seeks a Clearance so he can work as a hospital wards person. He also seeks the clearance so he can re-apply to FACS to become an authorised household member and return to live with…

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: [2018] NSWCATAD 198
Decision Date: 28 August 2018

CaseChat Overview and Summary

In the case of DES v Children's Guardian, the applicant, who had been charged with sexual assault but whose charge did not proceed, sought to have a working with children check clearance granted by the Children's Guardian. The applicant had reported incidents of child abuse to the department, but the Guardian refused the clearance, deeming the applicant a risk to the safety of children. The applicant appealed the Guardian's decision, arguing that it was not correct and preferable. The court was required to determine whether the Guardian's assessment of risk was justified and whether the clearance should be granted.

The court examined the relevant legislative framework and case law to assess the Guardian's decision. It considered the statutory authority of the Guardian to assess the risk posed by an applicant and the relevant factors to be taken into account in making that assessment. The court found that the Guardian's decision was based on a reasonable and justifiable assessment of the risk posed by the applicant, taking into account the applicant's history of reporting child abuse and the nature of the allegations against the applicant. The court held that the Guardian's decision was correct and preferable and affirmed the decision to refuse the applicant a working with children check clearance.

The court emphasised the importance of protecting children from harm and the need for the Guardian to exercise its statutory powers with care and impartiality. The court also noted that the applicant had the right to appeal the decision and to seek review by the Administrative Appeals Tribunal. However, in this case, the court was satisfied that the Guardian's decision was based on a proper consideration of the relevant factors and was not affected by any error of law or procedural unfairness. The decision of the Guardian to refuse the applicant a working with children check clearance was therefore affirmed.

The court's decision in this case highlights the importance of ensuring the safety of children and the need for careful consideration of the risks posed by individuals seeking to work with children. The court's affirmation of the Guardian's decision also underscores the importance of respecting the statutory authority of the Guardian and the need for applicants to seek review through the appropriate channels if they are dissatisfied with a decision.

Orders

Orders of the court

The decision of the Children’s Guardian to refuse the applicant a 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:	DES v Children’s Guardian [2018] NSWCATAD 198
Hearing dates:	4 June 2018
Date of orders:	28 August 2018
Decision date:	28 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member S Davison, General Member
Decision:	The decision of the Children’s Guardian to refuse the applicant a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant charged with sexual assault but charge did not proceed – reports of child abuse to department – whether applicant poses a risk to safety of children – assessment of risk – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children’s Guardian [2014] NSWCATAD 161 BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 BJB v Children’s Guardian (No.2) [2014] NSWCATAD 164 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) NSWSC 949 McDonald v Director General of Social Security (1984)1 FCR 354; Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWlRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88
Category:	Principal judgment
Parties:	DES (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Applicant unrepresented M Giacomo (Respondent) Solicitors: Crown Solicitors (Respondent)
File Number(s):	2017/ 000366847
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 including mandatory reporters or risk of harm reporters 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.