Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: DQK v Children’s Guardian [2020] NSWCATAD 7 Hearing dates: 21 August 2019 Date of orders: 21 August 2019 Decision date: 16 January 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member
P Foreman, General MemberDecision: (1) It is declared DQK is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of an indecent assault contrary to s 61L Crimes Act 1900 (NSW) entered on 7 February 1996 at the Byron Bay Local Court.
(2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 16 November 2018 is granted.
(3) The Children’s Guardian is to grant a working with children check clearance to DQK pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).Catchwords: ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW)child protection – working with children - risk to children whether risk real and appreciable– indecent assault contrary to s 61L Crimes Act 1900 (NSW)– enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child and Young Persons (Care and protection) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Working with Children Act 2005 (Vic)Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFB v Children's Guardian [2014] NSWCATAD 111
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BYR v Children’s Guardian [2013] NSWADT 310
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CFW [2016] NSWSC 1406
Children’s Guardian v CKF [2017] NSWSC 893
Children’s Guardian v CXZ [2019] NSWSC 1083
CJT v Office of the Children's Guardian [2016] NSWSC 738
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CTM v Children’s Guardian [2016] NSWCATAD 280
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
M v M [1988] HCA 68; 166 CLR 69
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
R v Commission for Children and Young People [2002] NSWIRComm 101
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Smith v Commissioner of Police [2014] NSWCATAD 184
Tilley v Children's Guardian [2017] NSWSC 174
ZZ v Secretary of the…
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- Case
- [2020] NSWCATAD 7
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the applicant's past conviction constituted a disqualifying offence and, if so, whether a reasonable person would permit unsupervised access to their own child in the context of child-related work. The court also had to determine whether the applicant met the onus of demonstrating that there was no appreciable risk to children if they were to engage in such work.
In reaching its decision, the court closely examined the statutory framework and the nature of the offence committed by the applicant. The court found that the offence of indecent assault, while serious, did not inherently disqualify the applicant from engaging in child-related work. The court placed significant weight on the time elapsed since the conviction, the applicant's subsequent good conduct, and the absence of any evidence suggesting a continued risk to children. The court concluded that a reasonable person would allow unsupervised access to their own child under these circumstances, and thus the applicant was not a disqualified person for the purposes of the Act. As a result, the application for an enabling order was granted, and the Children's Guardian was directed to issue a working with children check clearance to the applicant.
Orders
Orders of the court
(1) It is declared DQK is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of an indecent assault contrary to s 61L Crimes Act 1900 (NSW) entered on 7 February 1996 at the Byron Bay Local Court.
(2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 16 November 2018 is granted.
(3) The Children’s Guardian is to grant a working with children check clearance to DQK pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).
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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