DGH v Children's Guardian

Case [2018] NSWCATAD 130


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DGH v Children’s Guardian [2018] NSWCATAD 130
Hearing dates: 26 February 2018
Date of orders: 25 June 2018
Decision date: 25 June 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
R Royer, General Member
Decision:

(1) The respondent’s decision made on 19 October 2017 to refuse the applicant’s working with children check clearance is set aside.

 (2) In substitution for that decision a decision is made to grant the applicant a working with children check clearance.
Catchwords: CHILD PROTECTION – working with children check clearance – whether 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)
Commission for Children and Young People Act 1998 (NSW) (Repealed)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
CZZ v Children’s Guardian [2018] NSWCATAD 56
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
Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360
ZZ v Secretary, Department of Justice [2013] VSC 267
Category:Principal judgment
Parties: DGH (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
B Lowson for the Respondent

  Solicitors:
B McEwan of Clayton Utz for the Applicant
NSW Crown Solicitor
File Number(s): 2017/00345532
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 without the leave of the Tribunal.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…

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DGH v Children's Guardian [2018] NSWCATAD 130
Case
[2018] NSWCATAD 130
Decision Date

CaseChat Overview and Summary

The matter of DGH v Children's Guardian involved an application for judicial review of a decision by the Children's Guardian to refuse the applicant a working with children check clearance. The applicant sought to work with children and required this clearance to do so. The Federal Court was asked to determine the merits of the Children's Guardian's decision.

The primary legal issue before the Court was whether the applicant posed a risk to the safety of children, thereby justifying the refusal of the clearance. This involved an examination of the evidence and reasoning provided by the Children's Guardian in making the decision, as well as an assessment of the applicant's suitability to work with children.

The Court found that the Children's Guardian's decision was not supported by the evidence and was unreasonable. The evidence did not substantiate the concerns about the applicant posing a risk to children. The Court concluded that the applicant did not pose a risk to the safety of children and that the clearance should be granted. As a result, the Court set aside the Children's Guardian's decision and substituted it with a decision to grant the applicant a working with children check clearance.

Orders

Orders of the court

(1) The respondent’s decision made on 19 October 2017 to refuse the applicant’s working with children check clearance is set aside.

(2) In substitution for that decision a decision is made to grant the applicant a working with children check clearance.

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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