DGS v Children's Guardian

Case [2018] NSWCATAD 302


Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: DGS v Children's Guardian [2018] NSWCATAD 302
Hearing dates: 23 July 2018 final submissions 7 August 2018
Date of orders: 02 January 2019
Decision date: 02 January 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
E Hayes, General Member
Decision:

1) The decision of the Children’s Guardian on 19 October 2017 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.
2) 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 section 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.

Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance- where applicant charged in 2013 in relation to 2 counts of sexual intercourse with a child under 10 contrary to section 66A of the Crimes Act 1900 (NSW) and one count of aggravated indecent assault contrary to section 61M of the Crimes Act (NSW) – where applicant acquitted of all charges - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant 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) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
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
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
Bronze Wing International Pty…

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DGS v Children's Guardian [2018] NSWCATAD 302
Case
[2018] NSWCATAD 302
Decision Date

CaseChat Overview and Summary

The matter of DGS v Children's Guardian was heard in the Civil and Administrative Tribunal of New South Wales. The applicant, DGS, sought a review of the decision made by the Children's Guardian to deny them a Working with Children Check clearance. This refusal was based on past charges against DGS, including sexual intercourse with a child under 10 and aggravated indecent assault, all of which were dismissed in court. The crux of the dispute lay in the interpretation of the Child Protection (Working with Children) Act 2012 and the criteria under which a clearance could be withheld despite the applicant's acquittal.

The central legal issues before the court involved the standard of proof required in a review under section 27 of the Act and whether the Guardian could reasonably find, on the balance of probabilities, that the alleged events had occurred. Additionally, the court had to determine whether there was an unacceptable risk of harm, or a real and appreciable risk posed by the applicant to the safety of children, which would justify the denial of the clearance.

In delivering the decision, the Tribunal found that the Children's Guardian's decision was well-founded. The court held that the Guardian was entitled to reach the conclusion that there was a real and appreciable risk to children, even though the applicant had been acquitted of the charges. The Tribunal emphasised that the paramount concern in such matters was the protection of children from abuse and that the Guardian's decision was made with due consideration of the potential risks involved. The applicant's acquittal did not preclude the Guardian from finding that the risk of harm remained unacceptable. Therefore, the Tribunal confirmed the Guardian's decision to refuse the clearance.

In light of the findings, the Tribunal confirmed the decision of the Children's Guardian and also made an order prohibiting the publication of names and identifying information of individuals involved in the case, except for expert witnesses and officers of government agencies, in order to protect the privacy of those involved.

Orders

Orders of the court

1) The decision of the Children’s Guardian on 19 October 2017 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.

2) 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 section 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.

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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