DMA v Children's Guardian

Case [2019] NSWCATAD 63


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DMA v Children's Guardian [2019] NSWCATAD 63
Hearing dates: 2 November 2018
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:

1) The decision of the Children’s Guardian on 1 June 2018 to cancel the 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.
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(2) Child Protection (Working with Children) Act 2012- cancellation of Working With Children Check Clearance under section 23 - 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 Ltd v SafeWork NSW [2017] NSWCA 41
Browne v Dunn (1893) 6 R 67 (HL)
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
CGR v Office of Children's Guardian [2018] NSWSC 26
CHB v Children’s Guardian [2016] NSWCATAD 214
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DMA v Children's Guardian [2019] NSWCATAD 63
Case
[2019] NSWCATAD 63
Decision Date

CaseChat Overview and Summary

The case of DMA v Children's Guardian was heard in the Civil and Administrative Tribunal of New South Wales, where the primary issue was the cancellation of the applicant's Working with Children Check Clearance. The Children’s Guardian had decided to cancel the clearance under section 23 of the Child Protection (Working with Children) Act 2012, a decision which the applicant sought to challenge. The matter required the tribunal to determine the appropriate standard of proof in a review under section 27 of the Act, specifically whether the tribunal could find on the balance of probabilities that the alleged events occurred and whether there was an unacceptable risk of harm posed by the applicant to the safety of children.

The tribunal examined the legislative framework and found that the paramount consideration in making a decision under the Act was the protection of children from abuse. It was not necessary to establish criminal guilt, but rather to determine whether the applicant posed an unacceptable risk of harm to children. The tribunal considered the evidence presented and concluded that the Children’s Guardian had acted within their powers and followed the correct process in cancelling the clearance. The tribunal held that the onus was on the applicant to prove that the cancellation decision was unreasonable, which the applicant failed to do. The tribunal was satisfied that the Guardian’s findings were based on evidence that was open to the Guardian to make and that the Guardian had the necessary information to conclude that there was an unacceptable risk of harm.

The tribunal confirmed the decision of the Children’s Guardian to cancel the applicant’s Working with Children Check Clearance. The tribunal also granted an order prohibiting the publication or broadcast of the names of any persons mentioned in the proceedings, except for expert witnesses and officers of government agencies. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 to protect the privacy of those involved. The tribunal's decision underscored the importance of the protection of children and the need to maintain stringent standards in the issuance and cancellation of Working with Children Check Clearances.

Orders

Orders of the court

1) The decision of the Children’s Guardian on 1 June 2018 to cancel the 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.

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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