DJF v Children's Guardian

Case [2019] NSWCATAD 246


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DJF v Children’s Guardian [2019] NSWCATAD 246
Hearing dates: 19-20 September 2018, , 6 December 2018 and 11 June 2019
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
A Limbury, General Member
Decision:

The decision of the Children’s Guardian dated 23 January 2018 refusing to grant the applicant a working with children check clearance is affirmed.

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 (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing) Procedure Act (NSW) 1999
Evidence Act 1995 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BJB v Office of the Children's Guardian [2014] NSWCATAD 11
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Children’s Guardian v CFW [2016] NSWSC 1406
Children’s Guardian v CKF [2017] NSWSC 893
Children’s Guardian v CXZ [2019] NSWSC 1083
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
DAR v Children’s Guardian [2018] NSWSC 942
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6
M v M [1988] HCA 68; 166 CLR 69
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
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
Category:Principal judgment
Parties: DJF (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
M Giacomo (Respondent)

  Solicitor:
Applicant (Self Represented)
Crown Solicitor (Respondent)
File Number(s): 2018/00059005
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 the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

  1. The applicant seeks administrative review of…

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DJF v Children's Guardian [2019] NSWCATAD 246
Case
[2019] NSWCATAD 246
Decision Date

CaseChat Overview and Summary

The case of DJF v Children's Guardian involved an applicant seeking a working with children check clearance, which was refused by the Children's Guardian under the Child Protection (Working with Children) Act 2012 (NSW). The applicant challenged the refusal, and the matter was heard by the Supreme Court of New South Wales. The dispute centred on the assessment of the risk posed by the applicant to children in the context of her work with children.

The court was tasked with determining whether the Children's Guardian's refusal was lawful and whether the Guardian's assessment of risk was reasonable. Specifically, the court had to consider whether the risk identified was real and appreciable, and whether a reasonable person would allow unsupervised access to their own child in the context of the applicant's work with children. The court examined the evidence presented and the decision-making process of the Guardian to ascertain if the decision was made in accordance with the statutory framework and was justified.

The court found that the Guardian's decision was based on a reasonable assessment of the risk and was in accordance with the legislative requirements. The court held that the risk identified was real and appreciable, and that a reasonable person would not allow unsupervised access to their own child given the nature of the applicant's work. The decision was affirmed, and the applicant's challenge to the Guardian's refusal was dismissed. The court concluded that the Guardian's decision was within the scope of the statutory powers and was supported by the evidence.

The final order of the court was that the decision of the Children's Guardian dated 23 January 2018, refusing to grant the applicant a working with children check clearance, was affirmed.

Orders

Orders of the court

The decision of the Children’s Guardian dated 23 January 2018 refusing to grant the applicant a working with children check clearance is affirmed.

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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