DVV v Children's Guardian

Case [2020] NSWCATAD 237

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DVV v Children’s Guardian [2020] NSWCATAD 237
Hearing dates: 17 October 2019 and 1 April 2020
Date of orders: 1 April 2020
Decision date: 23 September 2020
Jurisdiction:Administrative and Equal Opportunity Division
Before: C A Mulvey, Senior Member
E Hayes, General Member
Decision:

(1) The decision of the Children’s Guardian dated 18 April 2019 refusing to grant the applicant a working with children check clearance is set aside.

(2) The Children’s Guardian shall grant a Working with Children Check Clearance to the applicant forthwith.

Catchwords:

ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – 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)

Child Protection (Working with Children) Regulation 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing) Procedure Act (NSW) 1999

Evidence Act 1995 (NSW)

Working with Children Act 2005 (Vic)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BJB v Office of the Children's Guardian [2014] NSWCATAD 111

BKE v Office of the Children’s Guardian [2015] NSWSC 523

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Children’s Guardian v CFW [2016] NSWSC 1406

Children’s Guardian v CKF [2017] NSWSC 893

Children’s Guardian v CXZ [2019] NSWSC 1083

CKF v Children’s Guardian [2017] NSWCATD 6

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People 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

DAR v Children’s Guardian [2018] NSWSC 942

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577

McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6

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

ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:Principal judgment
Parties: DVV (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
A Douglas-Baker (respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)
File Number(s): 2019/00142648
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely…

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AGLC
DVV v Children's Guardian [2020] NSWCATAD 237
Case
[2020] NSWCATAD 237
Decision Date

CaseChat Overview and Summary

The applicant, DVV, sought a working with children check clearance from the Children's Guardian under the Child Protection (Working with Children) Act 2012 (NSW). The Guardian refused the clearance on the basis that DVV posed a risk to children. DVV challenged the Guardian's decision by seeking judicial review in the Land and Environment Court of New South Wales. The central issue for determination was whether the Guardian's decision was lawful, focusing on the interpretation of the term "risk to children" as defined in the Act. The applicant argued that the Guardian's assessment was flawed and did not properly consider the real and appreciable risk as contemplated by the legislation.

The court examined the statutory framework and considered the legislative intent behind the Act. It concluded that the term "risk to children" required a real and appreciable risk, not merely a hypothetical or remote possibility. The court found that the Guardian had not adequately considered whether a reasonable person would allow unsupervised access to their own child in the context of child-related work. The Guardian's decision was therefore flawed and did not align with the statutory criteria. Consequently, the court set aside the Guardian's decision and ordered the Guardian to grant DVV a working with children check clearance forthwith.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 18 April 2019 refusing to grant the applicant a working with children check clearance is set aside.

(2) The Children’s Guardian shall grant a Working with Children Check Clearance to the applicant forthwith.

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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