DWE v Children's Guardian - [2021] NSWCATAD 296

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DWE v Children’s Guardian [2021] NSWCATAD 296
Hearing dates: 11 August 2020
25 November 2021
Date of orders: 14 October 2021
Decision date: 14 October 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: E Connor, Senior Member (11 August 2020)
S Higgins, Senior Member (25 November 2020)
F Given, General Member (11 August and 25 November 2020)
Decision:
(1) The decision of the respondent, made on 3 April 2019, to cancel the applicant’s working with children check 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 – Child protection – cancellation of working with children check clearance following a risk assessment by the respondent – whether the applicant poses a risk to the safety of children

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)(Repealed)

Cases Cited:
BKE v Office of Children’s Guardian [2015] NSWSC 523
BSR v NSW Children’s Guardian [2015] NSWCADAD 264
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
CYC v Children’s Guardian (No 2) [2017] NSWCATAD 262
Holbrook and Australian Postal Commission (1983) 5 ALN N46
Office of the Children’s Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184
ZZ v Secretary, Department of Justice [2013] VSC 267

Category: Principal judgment
Parties: DWE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Lowson (Respondent)
Solicitors:
Applicant self-represented
Crown Solicitor (Respondent)

File Number(s): 2019/00127309
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

The applicant, DWE is 24 years of age and seeks review of the decision of the Children’s Guardian (the respondent) to cancel his working with children check clearance (clearance). The decision was made on 3 April 2019, under s 23(1) of the Child Protection Working with Children Act 2012 (NSW) (WWC Act), because the respondent was satisfied that the applicant posed a risk to the safety of children.
There is no dispute that the Tribunal has jurisdiction to…

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 DWE v Children's Guardian

Details

AGLC: DWE v Children's Guardian [2021] NSWCATAD 296
Case: [2021] NSWCATAD 296
Decision Date: 14 October 2021

CaseChat Overview and Summary

The case of DWE v Children's Guardian involves the applicant, DWE, who is challenging a decision by the Children's Guardian to cancel their working with children check clearance. The Guardian had cancelled the clearance based on a risk assessment that DWE posed a risk to the safety of children. The applicant sought judicial review of this decision in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether the Children's Guardian's decision to cancel the working with children check clearance was lawful, rational, and procedurally fair. The central legal issue was whether the Guardian's risk assessment was based on relevant and sufficient evidence, and if the decision-making process adhered to the principles of natural justice and procedural fairness. The court also considered whether the decision was within the scope of the statutory powers of the Children's Guardian.

The court found that the decision to cancel the clearance was not supported by the evidence and did not meet the necessary legal standards. The Guardian had relied on certain historical allegations and incidents without proper consideration of the applicant's current circumstances and the mitigating factors presented. The court determined that the decision-making process was flawed as it did not adequately consider the principles of procedural fairness, particularly the right to be heard. As a result, the court set aside the decision and substituted it with an order granting the applicant a working with children check clearance.

In light of the above findings, the court made an order setting aside the decision of the Children's Guardian and substituting it with a decision that the applicant is to be granted a working with children check clearance. The court emphasised the importance of ensuring that decisions of such significance are made on the basis of relevant evidence and in accordance with legal principles.

Orders

Orders of the court

(1) The decision of the respondent, made on 3 April 2019, to cancel the applicant’s working with children check 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.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DWE v Children’s Guardian [2021] NSWCATAD 296
Hearing dates:	11 August 2020 25 November 2021
Date of orders:	14 October 2021
Decision date:	14 October 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member (11 August 2020) S Higgins, Senior Member (25 November 2020) F Given, General Member (11 August and 25 November 2020)
Decision:	(1) The decision of the respondent, made on 3 April 2019, to cancel the applicant’s working with children check 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 – Child protection – cancellation of working with children check clearance following a risk assessment by the respondent – whether the applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)(Repealed)
Cases Cited:	BKE v Office of Children’s Guardian [2015] NSWSC 523 BSR v NSW Children’s Guardian [2015] NSWCADAD 264 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 CYC v Children’s Guardian (No 2) [2017] NSWCATAD 262 Holbrook and Australian Postal Commission (1983) 5 ALN N46 Office of the Children’s Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DWE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent) Solicitors: Applicant self-represented Crown Solicitor (Respondent)
File Number(s):	2019/00127309
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.