DMK v Children's Guardian - [2018] NSWCATAD 236

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DMK v Children’s Guardian [2018] NSWCATAD 236
Hearing dates: 19 September 2018
Date of orders: 10 October 2018
Decision date: 10 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
E Hayes, General Member
Decision:
(1) Declare that 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 offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61L.
(2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance.

Catchwords: ADMINISTRATIVE LAW – Working with children – Application for enabling order – Where applicant indecently assaulted an adult 16 years ago – Where applicant charged with other assault and indecency offences 14 years ago before charges were withdrawn – Where workplace investigation found allegations sustained – Whether 2018 Amendments applied - Whether evidence of charges and alleged assault should be admitted and, if so, what weight should be attributed to it – Whether applicant poses a real and substantial risk to the safety of children - Where applicant had expressed genuine remorse for the indecent assault – Where applicant had become a community leader in a stable marriage
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BHA v Children's Guardian [2014] NSWCATAD 161
BKE v Office of the Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BRL [2016] NSWSC 1206
CFJ v Children’s Guardian [2016] NSWCATAD 62
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: DMK (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
A Douglas-Baker (Respondent)
Solicitors:
Applicant in person
Crown Solicitor’s Office (Respondent)

File Number(s): 2018/00193312
Publication restriction: A non-publication order has been made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

The applicant applied for an order enabling him to work with children. He was barred from working with children, without an enabling order, because he committed the offence of indecent assault against an adult sixteen years ago.
We are satisfied that the applicant does not pose a risk to the safety of children. He has expressed genuine remorse for the offence, which was committed whilst he was heavily intoxicated. He has reformed his drinking habits. He committed the offence when a young man and is now a mature adult who has changed significantly.
For these reasons, we decided at the hearing…

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 DMK v Children's Guardian

Details

AGLC: DMK v Children's Guardian [2018] NSWCATAD 236
Case: [2018] NSWCATAD 236
Decision Date: 10 October 2018

CaseChat Overview and Summary

In this case, the applicant, DMK, sought an enabling order to obtain a working with children check clearance. DMK had previously been charged with assault and indecency offences, which were later withdrawn, and a workplace investigation found allegations of assault sustained. The dispute involved whether the 2018 amendments to the Child Protection (Working with Children) Act 2012 (NSW) applied to DMK’s case, and if the evidence of the past charges and the alleged assault should be admitted and what weight should be attributed to it. The court also had to determine whether DMK posed a real and substantial risk to the safety of children, considering his expression of genuine remorse and his role as a community leader in a stable marriage.

The court examined the statutory framework and the principles of natural justice and procedural fairness. It considered the relevance of the 2018 amendments to the Child Protection Act, which introduced criteria for assessing risk and determining whether a person poses a risk to children. The court also assessed the admissibility and weight of the evidence of past charges and the alleged assault, taking into account the applicant’s remorse, rehabilitation, and current circumstances. The court determined that the evidence was relevant but needed to be balanced against other factors such as the applicant’s current conduct, remorse, and community standing.

The court found that the 2018 amendments applied and that the evidence of the past charges and the alleged assault should be admitted but with careful consideration of its weight. The court concluded that, despite the past incidents, DMK did not pose a real and substantial risk to the safety of children, considering his genuine remorse, stable marriage, and role as a community leader. The court found that the applicant’s current circumstances and positive contributions to the community outweighed the past incidents, and thus, he did not meet the criteria for being a disqualified person under the Act.

The court ordered that DMK was 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 offence of assault with an act of indecency. The court also ordered that the respondent must grant DMK a working with children check clearance in accordance with the Act.

Orders

Orders of the court

(1) Declare that 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 offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61L.

(2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance.

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:	DMK v Children’s Guardian [2018] NSWCATAD 236
Hearing dates:	19 September 2018
Date of orders:	10 October 2018
Decision date:	10 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member E Hayes, General Member
Decision:	(1) Declare that 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 offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61L. (2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – Working with children – Application for enabling order – Where applicant indecently assaulted an adult 16 years ago – Where applicant charged with other assault and indecency offences 14 years ago before charges were withdrawn – Where workplace investigation found allegations sustained – Whether 2018 Amendments applied - Whether evidence of charges and alleged assault should be admitted and, if so, what weight should be attributed to it – Whether applicant poses a real and substantial risk to the safety of children - Where applicant had expressed genuine remorse for the indecent assault – Where applicant had become a community leader in a stable marriage
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children's Guardian [2014] NSWCATAD 161 BKE v Office of the Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BRL [2016] NSWSC 1206 CFJ v Children’s Guardian [2016] NSWCATAD 62 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	DMK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Douglas-Baker (Respondent) Solicitors: Applicant in person Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00193312
Publication restriction:	A non-publication order has been made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.