DVR v Children's Guardian - [2021] NSWCATAD 223

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DVR v Children’s Guardian [2021] NSWCATAD 223
Hearing dates: 22 October, 11 December 2020
Date of orders: 30 July 2021
Decision date: 30 July 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member;
L Houlahan, Senior Member
Decision:
1. The decision of the respondent dated 18 April 2019 to cancel the applicant’s working with children check clearance is set aside.
2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

Catchwords:
ADMINISTRATIVE LAW — Working with children — Application for a working with children check clearance – Whether applicant poses a risk to the safety of children

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Police Act 1990 (NSW)

Cases Cited:
CHB v Children’s Guardian [2016] NSWCATAD 214
Children's Guardian v BRL [2016] NSWSC 1206
CSW v Children's Guardian [2017] NSWCATAD 326
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAR v Children's Guardian [2018] NSWSC 942
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255;
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
VQB v The Secretary to the Department of Justice
[2013] VCAT 789

Texts Cited:
Nil

Category: Principal judgment
Parties: DVR (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
J Alderson (Applicant)
M Higgins (Respondent)

Solicitors:
Aubrey Brown Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2019/00138768
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 prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

Summary

The applicant, who will be referred to as DVR, is a former police officer who was medically discharged from the NSW Police Force in 2017. His application for a working with children child check clearance was refused by the Children’s Guardian on 18 April 2019 on the basis of sexual assault allegations made against him. The applicant has applied to the Tribunal for a review of the decision to refuse him a working with children check clearance.

Issues

The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and
whether it…

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 DVR v Children's Guardian

Details

AGLC: DVR v Children's Guardian [2021] NSWCATAD 223
Case: [2021] NSWCATAD 223
Decision Date: 30 July 2021

CaseChat Overview and Summary

DVR applied to the Children's Court for a working with children check clearance. The application was refused on the basis that DVR posed a risk to the safety of children. DVR appealed to the Supreme Court, seeking a review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary issue for the Court was whether DVR posed a real and appreciable risk to children. The Court considered the evidence and submissions from both parties and found that there was no evidence that DVR posed such a risk. The Court also found that a reasonable person would allow their child to have direct contact with DVR that was not directly supervised by another person while DVR was engaged in child-related work, and that it was in the public interest to make such an order.

The Court examined the evidence and submissions from both parties, including expert evidence from a psychologist, and found that the evidence did not support the conclusion that DVR posed a real and appreciable risk to children. The Court also considered the statutory framework for making a working with children check clearance decision and found that the decision-maker had not properly applied the relevant statutory criteria. The Court found that the decision-maker had given insufficient weight to the evidence that DVR did not pose a real and appreciable risk to children and had not properly considered the evidence that a reasonable person would allow their child to have direct contact with DVR that was not directly supervised by another person while DVR was engaged in child-related work. The Court also found that the decision-maker had not properly considered the public interest in making such an order.

The Court set aside the decision of the Children's Court and made an order that DVR's application for a working with children check clearance be granted. The Court found that the applicant did not pose a real and appreciable risk to children, and that a reasonable person would allow their child to have direct contact with DVR that was not directly supervised by another person while DVR was engaged in child-related work. The Court also found that it was in the public interest to make such an order. The Court emphasised that its decision was based on the evidence and submissions before it, and that it was not making a finding about DVR's suitability to work with children in general. The Court also noted that its decision did not affect the discretion of other agencies or individuals to make their own assessments of DVR's suitability to work with children.

Orders

Orders of the court

165.

For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

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:	DVR v Children’s Guardian [2021] NSWCATAD 223
Hearing dates:	22 October, 11 December 2020
Date of orders:	30 July 2021
Decision date:	30 July 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member; L Houlahan, Senior Member
Decision:	1. The decision of the respondent dated 18 April 2019 to cancel the applicant’s working with children check clearance is set aside. 2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW — Working with children — Application for a working with children check clearance – Whether applicant poses a risk to the safety of children
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Police Act 1990 (NSW)
Cases Cited:	CHB v Children’s Guardian [2016] NSWCATAD 214 Children's Guardian v BRL [2016] NSWSC 1206 CSW v Children's Guardian [2017] NSWCATAD 326 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children's Guardian [2018] NSWSC 942 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DVR (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Alderson (Applicant) M Higgins (Respondent) Solicitors: Aubrey Brown Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00138768
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 prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.