DOS v Children's Guardian - [2019] NSWCATAD 231

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DOS v Children’s Guardian [2019] NSWCATAD 231
Hearing dates: 24 January 2019, 12 April 2019Submissions closed 15 May 2019
Date of orders: 07 November 2019
Decision date: 07 November 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
L Houlahan, Senior Member
Decision:
1. The decision of the respondent dated 16 August 2018 to cancel the applicant’s Working With Children Check Clearance is affirmed.
2. The application is dismissed.
Catchwords: ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – pattern of allegations – allegations conceded – whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – whether sufficient time to rehabilitate
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013
Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Children’s Guardian v CKF [2017] NSWSC 893
Children's Guardian v CXZ [2019] NSWSC 1083
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Category: Principal judgment
Parties: DOS (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
Applicant (Self-represented)
Crown Solicitor(Respondent)

File Number(s): 2018/00279854
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks administrative review of a decision by the respondent cancelling his Working with Children Check clearance (WWCC). The clearance was cancelled because…

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 231
Decision Date: 07 November 2019

CaseChat Overview and Summary

In the case of DOS v Children's Guardian, the applicant sought judicial review of a decision made by the Children's Guardian to cancel the applicant's Working With Children Check Clearance. The dispute centred on the validity of the decision in light of the evidence presented, particularly in relation to the risk posed to children by the applicant. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the risk to children was real and appreciable, and whether the decision was supported by the evidence presented. The court needed to determine if the evidence was sufficient to prove the allegations against the applicant, and whether the Guardian was justified in cancelling the clearance based on the balance of probabilities. The applicant argued that there were no current risks and that sufficient time had passed for rehabilitation.

The court found that the Guardian's decision was well-supported by the evidence. The applicant's history and pattern of allegations, coupled with the weight of the evidence, indicated a real and appreciable risk to children. The court noted that it was not necessary to make positive findings on all matters, but rather to consider the overall weight of evidence. The expert evidence provided supported the Guardian's conclusion that there was a significant risk of harm, and that there was not sufficient time for rehabilitation. Therefore, the court affirmed the Guardian's decision and dismissed the application.

Orders

Orders of the court

1. The decision of the respondent dated 16 August 2018 to cancel the applicant’s Working With Children Check Clearance is affirmed.

2. The application is dismissed.

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:	DOS v Children’s Guardian [2019] NSWCATAD 231
Hearing dates:	24 January 2019, 12 April 2019Submissions closed 15 May 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member L Houlahan, Senior Member
Decision:	1. The decision of the respondent dated 16 August 2018 to cancel the applicant’s Working With Children Check Clearance is affirmed. 2. The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- history of allegations – pattern of allegations – allegations conceded – whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children – whether sufficient time to rehabilitate
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children’s Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Category:	Principal judgment
Parties:	DOS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: Applicant (Self-represented) Crown Solicitor(Respondent)
File Number(s):	2018/00279854
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.