DMD v Children's Guardian - [2019] NSWCATAD 87

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DMD v Children’s Guardian [2019] NSWCATAD 87
Hearing dates: 26 October 2018
Date of orders: 17 May 2019
Decision date: 17 May 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Prof P Foreman, General Member
Decision:
Application dismissed.

Catchwords: CHILD PROTECTION – working with children check clearance – applicant found guilty of a disqualifying offence – whether applicant discharged his onus to rebut the presumption that he poses a risk to the safety of children – onus not discharged
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
CTM v Children’s Guardian [2016] NSWCATAD 280,
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: DMD (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein for the respondent
Solicitors:
Applicant in person
NSW Crown Solicitor

File Number(s): 2018/177970
Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.Note: A reference to the name of a person includes a reference to any information, picture or other material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.

Reasons for decision

Introduction

The applicant, DMD, seeks an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (WWC Act), so that he can obtain a working with children check clearance (a clearance). The applicant is 24 years of age and wishes to work as a volunteer in child-related work. In order to undertake such work, the applicant must have a clearance: WWC Act, s 8 and 9.
In these proceedings, the paramount consideration is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse’: see WWC Act, s 4.
On 4 May 2018, the respondent, the Children’s Guardian, refused the applicant’s application for a clearance because he is a ‘disqualified person’ and is presumed to pose a risk to the safety of children, unless he proves the contrary: see WWC Act, ss 18(1) and 28(7).
The applicant is a ‘disqualified person’ because, in July 2017, he was found guilty of having indecently assaulted a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). Section 61M is a disqualifying offence listed in Sch 2 of the WWC Act. The Court…

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.

Continue reading DMD v Children's Guardian

Details

AGLC: DMD v Children's Guardian [2019] NSWCATAD 87
Case: [2019] NSWCATAD 87
Decision Date: 17 May 2019

CaseChat Overview and Summary

DMD applied to the court for a working with children check clearance, which would allow him to work with children as a personal trainer. The Children's Guardian opposed the application on the grounds that DMD had previously been found guilty of a disqualifying offence, which was engaging in sexual activity with a child under 16 years of age. The court was required to determine whether DMD had discharged his onus to rebut the presumption that he poses a risk to the safety of children. DMD argued that the offence was an isolated incident that occurred when he was a teenager and that he had since turned his life around. He also presented evidence of his good character and his commitment to working with children in a positive and safe environment. However, the court found that DMD had not discharged his onus to rebut the presumption that he poses a risk to the safety of children. The court noted that the offence was a serious one and that there was a risk that DMD may reoffend in a similar manner. The court also noted that DMD had not provided sufficient evidence to demonstrate that he had taken significant steps to address the underlying issues that led to the offence. The application was dismissed, and DMD was not granted a working with children check clearance. The court emphasised the importance of protecting children from harm and noted that the presumption of risk arising from a disqualifying offence could only be rebutted by clear and compelling evidence.

Orders

Orders of the court

Application dismissed.

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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Medium Neutral Citation:	DMD v Children’s Guardian [2019] NSWCATAD 87
Hearing dates:	26 October 2018
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member Prof P Foreman, General Member
Decision:	Application dismissed.
Catchwords:	CHILD PROTECTION – working with children check clearance – applicant found guilty of a disqualifying offence – whether applicant discharged his onus to rebut the presumption that he poses a risk to the safety of children – onus not discharged
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 CTM v Children’s Guardian [2016] NSWCATAD 280, ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DMD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein for the respondent Solicitors: Applicant in person NSW Crown Solicitor
File Number(s):	2018/177970
Publication restriction:	Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.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.