1) The decision of the Children’s Guardian on 19 December 2017 to cancel the applicant’s Working with Children Check Clearance under section 23 of 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.
3) It is noted that 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(2) Child Protection (Working with Children) Act 2012 - cancellation after risk assessment - 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.
[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
AGLC
DGZ v Children's Guardian [2022] NSWCATAD 250
Case
[2022] NSWCATAD 250
Decision Date
CaseChat Overview and Summary
The applicant, DGZ, sought judicial review of a decision made by the Children’s Guardian under section 27(2) of the Child Protection (Working with Children) Act 2012 to cancel their Working with Children Check Clearance. The dispute arose from an assessment which concluded there was an unacceptable risk of harm to children if the applicant were to continue working with children. The matter was heard by the Civil and Administrative Tribunal in Victoria.
The primary legal issue before the Tribunal was whether the Children’s Guardian’s decision to cancel the applicant's clearance was supported by the evidence, and whether it was appropriate to make a finding on the balance of probabilities that the alleged events occurred. Another significant issue was whether there was an unacceptable risk of harm, and whether a real and appreciable risk was posed by the applicant to the safety of children.
The Tribunal found that the Children’s Guardian's decision was based on a thorough assessment and was supported by the evidence. The Tribunal held that it was appropriate to make a finding on the balance of probabilities that the alleged events occurred, as this was the most appropriate standard in the context of child protection. The Tribunal also determined that the evidence demonstrated that there was an unacceptable risk of harm, and that the applicant posed a real and appreciable risk to the safety of children.
Accordingly, the Tribunal confirmed the decision of the Children’s Guardian to cancel the applicant's clearance and prohibited the publication or broadcast of the names of any persons mentioned in the proceedings, except for expert witnesses and officers of government agencies.
Orders
Orders of the court
1) The decision of the Children’s Guardian on 19 December 2017 to cancel the applicant’s Working with Children Check Clearance under section 23 of 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.
3) It is noted that 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.