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DQD v Children's Guardian

DQD v Children's Guardian

Case [2019] NSWCATAD 84 15 May 2019

Judicial Review

Working With Children Check

Public Interest

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DQD v Children's Guardian [2019] NSWCATAD 84
Hearing dates: 10 April 2019
Date of orders: 15 May 2019
Decision date: 15 May 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Blake AM SC, Senior Member
E Hayes, General Member
Decision:
1. An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the offence of the of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW).
2. An order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a Working With Children Check clearance.
3. An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.

Catchwords: ADMINISTRATIVE LAW — Working with children — Application for enabling order — Where applicant committed offence of filming an adult woman’s private parts — Whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
Legislation Cited: Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
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; (2002) 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Commissioner for Children and Young People v IK [2005] NSWSC 1136
CSW v Children's Guardian [2017] NSWCATAD 326
CTM v Children’s Guardian [2016] NSWCATAD 280
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: DQD (Applicant)
Children’s Guardian (Respondent)
Representation: Counsel:
Ms J Ambikapathy (Applicant)
Ms M Giacomo (Respondent)
Solicitors:
Peakzon Legal (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2018/343144
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…

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 DQD v Children's Guardian

Details

AGLC: DQD v Children's Guardian [2019] NSWCATAD 84
Case: [2019] NSWCATAD 84
Decision Date: 15 May 2019

CaseChat Overview and Summary

DQD filed an application against the Children's Guardian seeking a declaration that they are not disqualified from working with children due to a prior offence of filming an adult woman's private parts. The application was heard by the Civil and Administrative Tribunal of New South Wales, which had to determine whether DQD had successfully rebutted the statutory presumption that they posed a risk to the safety of children. The tribunal was required to consider the nature of the offence, DQD's history, and any other relevant factors in making its decision.

The tribunal found that DQD had discharged the onus of rebutting the presumption of risk to children's safety. The offence committed by DQD did not involve children and was not indicative of a risk to children's safety. The tribunal also took into account DQD's otherwise unblemished record and the fact that the offence was committed in a private setting with no connection to their potential work with children. The tribunal concluded that the offence did not warrant a disqualification under the Child Protection (Working with Children) Act 2012 (NSW).

In light of its findings, the tribunal made several orders. It declared that DQD 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 filming a person's private parts. Additionally, the tribunal ordered the Children's Guardian to grant DQD a Working With Children Check clearance. Finally, the tribunal prohibited the publication or broadcast of the names of any person mentioned in these proceedings, with certain exceptions.

Orders

Orders of the court

1. An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the offence of the of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW).

2. An order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a Working With Children Check clearance.

3. An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.

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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Citations

DQD v Children's Guardian [2019] NSWCATAD 84

Most Recent Citation

VDG v Director-General, Department of Justice and Attorney-General [2020] QCAT 506

Cases Citing This Decision

VDG v Director-General, Department of Justice and Attorney-General [2020] QCAT 506
Citation 1 (Para 1)

…It was submitted that the decision of NCAT in DQD v Children’s Guardian [2019] NSWCATAD 84 (‘ DQD ’) was not binding on this Tribunal . However, it was submitted that this is a decision that should be considered persuasive as the issues that it considered to be relevant to the New South Wales legislative scheme are l…

See all citing cases →

Cases Cited

CSW v Children's Guardian [2017] NSWCATAD 326
Citation 1 (Para 22)

…In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of…
CYY v Children's Guardian (No 2) [2017] NSWCATAD 262
Citation 2 (Para 23)

…In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ v Secretary, Department of Justice where Bell J at [202] adopted the analysis that included considera…
CTM v Children's Guardian [2016] NSWCATAD 280
Citation 3 (Para 21)

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
CJT v Office of the Children's Guardian [2016] NSWSC 738
Citation 4 (Para 19)

…V [2002] NSWSC 949 at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 at [40].…
CFJ v Children's Guardian [2016] NSWCATAD 62
Citation 5

…v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 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; (2002) 56 NSWLR 476 Commissioner for Childr…
BKE v Office of the Children's Guardian [2015] NSWSC 523
Citation 6 (Para 19)

…lt preying on children”: Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [26]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 at [40].…
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
Citation 7 (Para 17)

…ot to impose additional punishment on a disqualified person, but to eliminate possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA)(with whom Hodgson JA at [1] and Handley AJA at [78] agre…
ZZ v Secretary, Department of Justice [2013] VSC 267
Citation 8 (Para 21)

…Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267, where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been consi…
Commission for Children and Young People v FZ [2011] NSWCA 111
Citation 9 (Para 17)

…e possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA)(with whom Hodgson JA at [1] and Handley AJA at [78] agreed) in respect of the former Child Protection (Prohibited Employment) Act…
The Commissioner for Children and Young People v IK [2005] NSWSC 1136
Citation 10 (Para 25)

…essed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]–[84] that the applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.…
Commission for Young People v V [2002] NSWSC 949
Citation 11

…] NSWCATAD 62 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CSW v Children's Guardian [2017] N…
Briginshaw v Briginshaw [1938] HCA 34
Citation 12 (Para 25)

…In Commissioner for Children and Young People v FZ Young JA at [67]-[68] expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]–[84] that the applicant carried the onus on the Briginshaw s…

Legislation Cited

Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 17)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 4)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
1 mention (from Para 5)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 65)
Crimes Act 1900 (ACT)
1 mention (from Para 11)
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention (from Para 64)

Medium Neutral Citation:	DQD v Children's Guardian [2019] NSWCATAD 84
Hearing dates:	10 April 2019
Date of orders:	15 May 2019
Decision date:	15 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member E Hayes, General Member
Decision:	1. An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the offence of the of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW). 2. An order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a Working With Children Check clearance. 3. An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.
Catchwords:	ADMINISTRATIVE LAW — Working with children — Application for enabling order — Where applicant committed offence of filming an adult woman’s private parts — Whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 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; (2002) 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CSW v Children's Guardian [2017] NSWCATAD 326 CTM v Children’s Guardian [2016] NSWCATAD 280 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DQD (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms J Ambikapathy (Applicant) Ms M Giacomo (Respondent) Solicitors: Peakzon Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/343144
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…