DHZ v Children's Guardian - [2019] NSWCATAD 13

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DHZ v Children’s Guardian [2019] NSWCATAD 13
Hearing dates: 11 and 12 July 2018
Date of orders: 11 January 2019
Decision date: 11 January 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: C A Mulvey, Senior Member
L Houlahan, General Member
Decision:
(1) The decision of the Children’s Guardian dated 22 March 2018 cancelling the applicant’s working with children check clearance is set aside.
(2) The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DHZ.

Catchwords: ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFX v Children’s Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BVM v Children's Guardian [2016] NSWCATAD 65
Children’s Guardian v CHN [2017] NSWSC 1228
Children’s Guardian v CKF [2017] NSWSC 893
CHB v Children’s Guardian [2016] NSWCATAD 214
CHN v Children’s Guardian [2016] NSWCATAD 294
CKF v Children’s Guardian [2017] NSWCATD 6
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CTM v Children’s Guardian [2016] NSWCATAD 280
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
CQX v Children’s Guardian [2017] NSWCATAD 286
DAR v Children’s Guardian [2018] NSWSC 942
M v M [1988] HCA 68; 166 CLR 69
R v Commission for Children and Young People [2002] NSWIRComm 101
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Smith v Commissioner of Police [2014] NSWCATAD 184
ZZ v Secretary of the Department of Justice [2013] VSC 267
Texts Cited: Nil
Category: Principal judgment
Parties: DHZ (Applicant)
Children’s Guardian (Respondent)
Representation: Counsel:
B Fogerty (Applicant)
J McDonald (Respondent)

File Number(s): 2018/00110204
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in…

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: [2019] NSWCATAD 13
Decision Date: 11 January 2019

CaseChat Overview and Summary

The case involved an application by an individual, referred to as DHZ, to challenge a decision by the Children's Guardian to cancel their working with children check clearance. The applicant sought judicial review under section 27(1) of the Child Protection (Working with Children) Act 2012 (NSW). The primary dispute centred around the assessment of risk to children and whether the decision to cancel the clearance was legally sound.

The court was required to determine whether the Children's Guardian's decision was unreasonable, focusing on whether a reasonable person would allow unsupervised access to their own child in the context of child-related work. This involved examining the risk assessment criteria and the interpretation of "real and appreciable risk" as defined in the Act. The court had to balance the statutory objectives of protecting children with the procedural fairness owed to the applicant.

The court found that the Children's Guardian's decision was unreasonable, primarily due to the misinterpretation of the risk assessment criteria. The court highlighted that the Guardian failed to consider the specific context of the applicant's work and personal circumstances, which were pertinent to the risk assessment. Consequently, the court set aside the decision to cancel the clearance and ordered the reinstatement of the applicant's clearance. This decision underscored the importance of a contextual and nuanced approach to risk assessments in child protection matters.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 22 March 2018 cancelling the applicant’s working with children check clearance is set aside.

(2) The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DHZ.

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:	DHZ v Children’s Guardian [2019] NSWCATAD 13
Hearing dates:	11 and 12 July 2018
Date of orders:	11 January 2019
Decision date:	11 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member L Houlahan, General Member
Decision:	(1) The decision of the Children’s Guardian dated 22 March 2018 cancelling the applicant’s working with children check clearance is set aside. (2) The Children’s Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DHZ.
Catchwords:	ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BVM v Children's Guardian [2016] NSWCATAD 65 Children’s Guardian v CHN [2017] NSWSC 1228 Children’s Guardian v CKF [2017] NSWSC 893 CHB v Children’s Guardian [2016] NSWCATAD 214 CHN v Children’s Guardian [2016] NSWCATAD 294 CKF v Children’s Guardian [2017] NSWCATD 6 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 CQX v Children’s Guardian [2017] NSWCATAD 286 DAR v Children’s Guardian [2018] NSWSC 942 M v M [1988] HCA 68; 166 CLR 69 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DHZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Fogerty (Applicant) J McDonald (Respondent)
File Number(s):	2018/00110204
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in…