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DEW v Children's Guardian

DEW v Children's Guardian

Case [2018] NSWCATAD 75 9 April 2018

Administrative Review

Judicial Review

Risk Assessment

Natural Justice & Procedural Fairness

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DEW v Children’s Guardian [2018] NSWCATAD 75
Hearing dates: 25 January 2018
Date of orders: 09 April 2018
Decision date: 09 April 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
R Royer, General Member
Decision:
(1) The respondent’s decision, made on 8 September 2017, to refuse the applicant’s application for a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE REVIEW – review of a decision of the respondent to refuse the applicant’s application for a working with children check clearance – in 2016 applicant found guilty of an offence assault occasioning actual bodily harm of his 9 year old son – offence triggered a risk assessment – whether the offence and other relevant factors were such that the Tribunal and the respondent before it could be satisfied that the applicant poses a risk to the safety of children.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) and other Child Protection Legislation 2016 (NSW)
Children and Young Persons (Care and Protection) Act (NSW)
Commission for Children and Young People Act 1998 (NSW) (Repealed)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
CTM v Children’s Guardian [2016] NSWCATAD 280
Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59
FZ v Commissioner for Children and Young People [2010] NSWSC 1144
Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162
M v M [1988] HCA 68; (1988) 166 CLR 69
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: DEW (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
B Fogarty (Applicant)
M Giacomo (Respondent)
Solicitors:
Super and Super Lawyers (Applicant)
NSW Crown Solicitors Office (Respondent)

File Number(s): 2017/00284343
Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted…

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 DEW v Children's Guardian

Details

AGLC: DEW v Children's Guardian [2018] NSWCATAD 75
Case: [2018] NSWCATAD 75
Decision Date: 09 April 2018

CaseChat Overview and Summary

The applicant, DEW, challenged the decision of the respondent, the Children's Guardian, to refuse his application for a working with children check clearance. This application was lodged following a 2016 conviction of the applicant for the offence of assault occasioning actual bodily harm of his nine-year-old son. This conviction triggered a risk assessment, which resulted in the refusal of the applicant's clearance application. The dispute was brought before the court for administrative review.

The central legal issue before the court was whether the offence committed by the applicant and other relevant factors were sufficient to establish that the applicant posed a risk to the safety of children. The court had to determine if the Tribunal and the respondent were correct in their assessment of risk based on the evidence presented, including the nature of the offence, the applicant's history, and any other pertinent factors. The court also considered the appropriate standard of review applicable to the decision-making process undertaken by the respondent.

The court affirmed the respondent's decision, finding that the evidence supported the conclusion that the applicant posed a risk to the safety of children. The court determined that the offence, coupled with other relevant factors, warranted the refusal of the applicant's clearance application. The court held that the decision-making process was procedurally fair and that the decision was not affected by any errors of law. Consequently, the refusal of the applicant's application for a working with children check clearance was upheld.

Orders

Orders of the court

(1) The respondent’s decision, made on 8 September 2017, to refuse the applicant’s application for 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

DEW v Children's Guardian [2018] NSWCATAD 75

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

CTM v Children's Guardian
[2016] NSWCATAD 280 Para 28

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90], the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 19

…or specific child-related work. Once it is granted it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 44

…[39]–[40]; BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at…
ZZ v Secretary, Department of Justice
[2013] VSC 267 Para 28

…(Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a…
Hancock v East Coast Timber Products Pty Ltd
[2011] NSWCA 11 Para 47

…Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the…
FZ v Commissioner for Children and Young People
[2010] NSWSC 1144

…Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 M v M [1988] HCA 68;…
ICM Agriculture Pty Ltd v The Commonwealth
[2009] HCA 51 Para 100

…In ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162, at [20], the High Court (per French CJ, Gummow and Crennan JJ) said:…
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
[2006] HCA 53 Para 44

…was, or was not, “the correct and preferable” decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40]; BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children’s Guardian (No 2) […
Commission for Young People v V
[2002] NSWSC 949 Para 22

…ntext of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms:…
M v M
[1988] HCA 68 Para 46

…gnificant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court’s decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]:…
Re Sarina; Ex parte Council of the Shire of Wollondilly
[1980] FCA 106 Para 45

…should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA…
Briginshaw v Briginshaw
[1938] HCA 34 Para 45

…It is also accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the ci…
Minister for Immigration and Ethnic Affairs v Pochi
[1980] FCA 85 Para 45

…to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].…
[1979] AATA 59
[1979] AATA 59 Para 44

…However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]:…
Re Gerda Ilse Holbrook and Australian Postal Commission
[1983] AATA 40 Para 45

…FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].…

Legislation cited in this decision · 7

Administrative Decisions Review Act 1997 (NSW)
63(1) 2 mentions (from Para 8)
Child Protection (Working with Children) Act 2012 (NSW)
18(2) 2 mentions (from Para 1)
Children Act 2005 (Vic)
13(2)) 2 mentions (from Para 28)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Commission for Children and Young People Act 1998 (NSW)
1 mention (from Para 93)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 3)

Medium Neutral Citation:	DEW v Children’s Guardian [2018] NSWCATAD 75
Hearing dates:	25 January 2018
Date of orders:	09 April 2018
Decision date:	09 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member R Royer, General Member
Decision:	(1) The respondent’s decision, made on 8 September 2017, to refuse the applicant’s application for a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – review of a decision of the respondent to refuse the applicant’s application for a working with children check clearance – in 2016 applicant found guilty of an offence assault occasioning actual bodily harm of his 9 year old son – offence triggered a risk assessment – whether the offence and other relevant factors were such that the Tribunal and the respondent before it could be satisfied that the applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and other Child Protection Legislation 2016 (NSW) Children and Young Persons (Care and Protection) Act (NSW) Commission for Children and Young People Act 1998 (NSW) (Repealed) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CTM v Children’s Guardian [2016] NSWCATAD 280 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51, (2009) 240 CLR 162 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DEW (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Fogarty (Applicant) M Giacomo (Respondent) Solicitors: Super and Super Lawyers (Applicant) NSW Crown Solicitors Office (Respondent)
File Number(s):	2017/00284343
Publication restriction:	Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted…