Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: DSJ v Children’s Guardian [2019] NSWCATAD 168 Hearing dates: 5 June 2019 Date of orders: 19 August 2019 Decision date: 19 August 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: C A Mulvey, Senior Member
R Royer, General MemberDecision: 1. It is declared DSJ 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 assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) entered on 21 June 1990 at the Parramatta Local Court.
2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 February 2019 is granted.
3. The Children’s Guardian is to grant a working with children check clearance to DSJ pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).Catchwords: ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable –assault on a person under 16 years with an act of indecency contrary to s 61E(1A) 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 Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Pre-trial Diversion of Offenders Act 1985 (NSW)Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
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
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
M v M [1988] HCA 68; 166 CLR 69
R v Commission for Children and Young People [2002] NSWIRComm 101
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30
Smith v Commissioner of Police [2014] NSWCATAD 184
ZZ v Secretary of the Department of Justice [2013] VSC 267Category: Principal judgment Parties: DSJ (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Solicitors:
Mr Guterres (Respondent)
DSJ (Applicant in Person)
Crown Solicitor (Respondent)
File Number(s): 2019/0037266 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name…
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- AGLC
- DSJ v Children's Guardian [2019] NSWCATAD 168
- Case
- [2019] NSWCATAD 168
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the Children’s Guardian had correctly exercised their discretion in denying the working with children check clearance to the applicant. The applicant argued that the Guardian had failed to properly consider the passage of time since the conviction and the specific nature of the offence. The Guardian’s position was that the offence was of a serious nature, warranting a denial of the clearance. The court had to determine whether the Guardian’s decision was lawful, reasonable, and took into account all relevant considerations.
In examining the legal issues, the court found that the Guardian had not adequately considered the passage of time since the conviction and the specific nature of the offence. The court emphasised that a reasonable person would consider these factors when determining whether the risk of harm to children was still appreciable. The court held that the Guardian had not applied the correct legal test in denying the clearance and that the decision was therefore flawed. The court further held that the applicant had met the threshold for an enabling order under the Act, which required a showing that the applicant was not a disqualified person for the purposes of the Act.
The orders made by the court declared that DSJ was not a disqualified person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) for the offence of an assault on a person under 16 years with an act of indecency. The court granted the application for an enabling order under section 28 of the Act and directed the Children’s Guardian to grant a working with children check clearance to DSJ.
Orders
Orders of the court
1. It is declared DSJ 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 assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) entered on 21 June 1990 at the Parramatta Local Court.
2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 February 2019 is granted.
3. The Children’s Guardian is to grant a working with children check clearance to DSJ 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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