Dnu v Children's Guardian - [2019] NSWCATAD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DNU v Children’s Guardian [2019] NSWCATAD 139
Hearing dates: 14 March 2019
Date of orders: 17 July 2019
Decision date: 17 July 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Organ, 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 Act 2012 (NSW) in respect of the offence of assault with an act of indecency Crimes Act 1900 (NSW) s 61N (2)
(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 adult 14 years ago – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children- costs
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AYU v NSW Office of the Children’s Guardian NSWCATAD 69
BHA v Children’s Guardian [2014] NSWCATAD 161
BKE v Children’s Guardian [2015] NSWSC 523
Department of Justice v PMY [2012] VSCA 143
Secretary Department of Justice v LMB, Secretary
VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category: Principal judgment
Parties: CYO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
C Simpson (Applicant)
I Fraser (Respondent)
Solicitors:
Legal Aid Commission NSW (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2018/00234879
Publication restriction: 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 including mandatory reporters or risk of harm reporters 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.

REASONS FOR DECISION

Summary

The applicant applied for an enabling order to allow him to work with children. He was barred from working with children without an enabling order because he was convicted of an offence of assault with an act of indecency. He received a 12 month good behaviour bond with supervision and was fined $1000.
We are satisfied that the applicant does not pose a risk to the safety of children as it has been nearly 15 years since the disqualifying offence which was not committed against a child, he has had no other criminal convictions since 2010, he has shown remorse for his actions, has engaged in prosocial activities and…

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.

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Details

Case: [2019] NSWCATAD 139
Decision Date: 17 July 2019

CaseChat Overview and Summary

The case of Dnu v Children's Guardian involved the applicant seeking a declaration that they were not a disqualified person under the Child Protection Act 2012 (NSW) in respect of an offence of assault with an act of indecency that occurred 14 years prior. The applicant also sought a working with children check clearance. The dispute was heard in the Supreme Court of New South Wales. The applicant argued that despite the historical offence, they had rebutted the statutory presumption that they posed a risk to the safety of children. The court was required to decide whether the applicant had successfully discharged the onus of proving they were not a risk to children and if the statutory presumption had been rebutted.

The legal issues before the court included the interpretation of the statutory presumption under the Child Protection (Working with Children) Act 2012 (NSW) and the burden of proof required to rebut this presumption. The court needed to consider the evidence presented by the applicant and determine whether it was sufficient to meet the statutory requirements. The applicant's argument centred on the passage of time since the offence, their conduct since the offence, and their ability to work with children without posing a risk. The court had to balance these factors against the statutory presumption of risk.

The court found that the applicant had successfully rebutted the statutory presumption that they posed a risk to the safety of children. The evidence demonstrated that the applicant had not reoffended and had maintained a good character over the years. The court noted the significant time that had elapsed since the offence and the applicant's positive conduct in the intervening period. Consequently, the court declared that the applicant was not to be treated as a disqualified person and ordered the respondent to grant the applicant a working with children check clearance. The court's decision was based on the applicant's ability to demonstrate a low risk to children, considering the nature and recency of the offence, and their subsequent conduct.

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 Act 2012 (NSW) in respect of the offence of assault with an act of indecency Crimes Act 1900 (NSW) s 61N (2)

(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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DNU v Children’s Guardian [2019] NSWCATAD 139
Hearing dates:	14 March 2019
Date of orders:	17 July 2019
Decision date:	17 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Organ, 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 Act 2012 (NSW) in respect of the offence of assault with an act of indecency Crimes Act 1900 (NSW) s 61N (2) (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 adult 14 years ago – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children- costs
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AYU v NSW Office of the Children’s Guardian NSWCATAD 69 BHA v Children’s Guardian [2014] NSWCATAD 161 BKE v Children’s Guardian [2015] NSWSC 523 Department of Justice v PMY [2012] VSCA 143 Secretary Department of Justice v LMB, Secretary VQB v The Secretary to the Department of Justice [2013] VCAT 789
Category:	Principal judgment
Parties:	CYO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C Simpson (Applicant) I Fraser (Respondent) Solicitors: Legal Aid Commission NSW (Applicant) Crown Solicitor (Respondent)
File Number(s):	2018/00234879
Publication restriction:	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 including mandatory reporters or risk of harm reporters 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.