DJR v Children's Guardian

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DJR v Children's Guardian [2018] NSWCATAD 172
Hearing dates: 30 July 2018
Date of orders: 06 August 2018
Decision date: 06 August 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Emeritus Prof P Foreman AM, General Member
Decision:

(1) The time for filing the application is extended to 28 February 2018.

 

(2) The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the two offences of unlawful carnal knowledge of a child under 16 years pursuant to section 215 (1) of the Criminal Code Act 1899 (Qld) to which he pleaded guilty on 9 September 2008.

 

(3) Pursuant to subsection 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

(4) 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-Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- where disqualifying offence under s 215 Criminal Code (Qld) being an offence carnal knowledge of girls under 16 – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children - where onus of proof discharged by applicant- where enabling order granted.
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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (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
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
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
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014]…
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Details
Case
[2018] NSWCATAD 172
Decision Date

CaseChat Overview and Summary

The applicant sought an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) to obtain a working with children check clearance. The applicant had previously pleaded guilty to two counts of carnal knowledge of a child under 16 years in Queensland in 2008, which constituted disqualifying offences under the NSW Act. The applicant contended that he was not a risk to the safety of children, and thus, the onus of proving he was not a risk had been discharged. The Children's Guardian opposed the application, arguing that the applicant was a risk to children and that the enabling order should not be granted.

The court had to determine whether the applicant had discharged the onus of proving that he was not a risk to the safety of children. The court considered the statutory framework, including the onus of proof placed on the applicant, and the nature of the disqualifying offences. The court also evaluated the evidence presented by both parties, including expert evidence and the applicant's personal circumstances.

The court found that the applicant had discharged the onus of proving that he was not a risk to the safety of children. The court considered the applicant's personal circumstances, including his remorse and rehabilitation efforts, as well as the expert evidence presented. The court determined that the applicant was not a risk to children and that the enabling order should be granted. The court also made an order prohibiting the publication or broadcast of the names of any person mentioned in these proceedings, except for expert witnesses and officers of government agencies.

The court granted the applicant an enabling order under the NSW Act, and ordered the Children's Guardian to grant the applicant a working with children check clearance. The court also made an order prohibiting the publication or broadcast of the names of any person mentioned in these proceedings, except for expert witnesses and officers of government agencies.

Orders

Orders of the court

(1) The time for filing the application is extended to 28 February 2018.

(2) The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the two offences of unlawful carnal knowledge of a child under 16 years pursuant to section 215 (1) of the Criminal Code Act 1899 (Qld) to which he pleaded guilty on 9 September 2008.

(3) Pursuant to subsection 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

(4) 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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