DQK v Children's Guardian

Link copied
Case Copied 41 min read

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 Member
Decision:

(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…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read DQK v Children's Guardian and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] NSWCATAD 7
Decision Date

CaseChat Overview and Summary

The case of DQK v Children's Guardian involved the applicant, DQK, seeking a declaration that they were not a disqualified person under the Child Protection (Working with Children) Act 2012 (NSW), as well as an enabling order to permit them to obtain a working with children check clearance. The applicant had a prior conviction for indecent assault contrary to section 61L of the Crimes Act 1900 (NSW), and the dispute centred around whether this conviction rendered them a disqualified person, thereby precluding them from engaging in child-related work without special permission. The matter was heard in the Administrative Decisions Tribunal of New South Wales.

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

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.