DWY v Children's Guardian - [2020] NSWCATAD 34

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DWY v Children's Guardian [2020] NSWCATAD 34
Hearing dates: 14 January 2020
Date of orders: 29 January 2020
Decision date: 29 January 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Blake, Senior Member
M Bolt, General Member
Decision:
(1) Decision of the respondent made on 9 May 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant.
(2) An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.

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 (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKV v Children's Guardian [2015] NSWCATAD 65
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Children's Guardian v CKF [2017] NSWSC 893
Children's Guardian v CVE [2017] NSWSC 1342
Children’s Guardian v CXZ [2019] NSWSC 1083
CJT v Office of the Children’s Guardian [2016] NSWSC 738
CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348
Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476
CSW v Children's Guardian [2017] NSWCATAD 326
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
DJS v Children's Guardian [2018] NSWCATAD 71
GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348
M v M (1988) 166 CLR 69
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1
Office of the Children's Guardian v CFW [2016] NSWSC 1406
Secretary, Department of Justice v LMB [2012] VSCA 143
ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited: None cited
Category: Principal judgment
Parties: DWY (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Solicitors:
Crown Solicitor (Respondent)
Applicant (Self represented)

File Number(s): 2019/00185213
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…

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.

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Details

Case: [2020] NSWCATAD 34
Decision Date: 29 January 2020

CaseChat Overview and Summary

In the matter of DWY v Children's Guardian, the applicant sought judicial review of a decision made by the respondent, the Children's Guardian, to deny the applicant a working with children check clearance. The applicant argued that the decision was unreasonable and that there was no evidence to support the conclusion that they posed a risk to the safety of children. The case was heard in the Civil and Administrative Tribunal (CAT) of New South Wales.

The legal issues before the court were whether the decision of the respondent was unreasonable and whether there was evidence to support the conclusion that the applicant posed a risk to the safety of children. The applicant argued that the decision was unreasonable as it was based on irrelevant considerations and failed to take into account relevant considerations. The applicant also argued that there was no evidence to support the conclusion that they posed a risk to the safety of children.

The court found that the decision of the respondent was unreasonable as it was based on irrelevant considerations and failed to take into account relevant considerations. The court found that the respondent had relied on irrelevant information and had failed to consider relevant information that was available to them. The court also found that there was no evidence to support the conclusion that the applicant posed a risk to the safety of children.

As a result, the court set aside the decision of the respondent and substituted a decision to grant the applicant a working with children check clearance. The court also made an order prohibiting the publication or broadcast of the names of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings, with the exception of expert witnesses and officers of government agencies.

Orders

Orders of the court

(1) Decision of the respondent made on 9 May 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant.

(2) An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.

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:	DWY v Children's Guardian [2020] NSWCATAD 34
Hearing dates:	14 January 2020
Date of orders:	29 January 2020
Decision date:	29 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake, Senior Member M Bolt, General Member
Decision:	(1) Decision of the respondent made on 9 May 2019 refusing to grant the applicant a working with children check clearance (WWCC clearance) pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) is set aside and in substitution a decision to grant a WWCC clearance to the applicant. (2) An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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.
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 (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKV v Children's Guardian [2015] NSWCATAD 65 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 Children's Guardian v CKF [2017] NSWSC 893 Children's Guardian v CVE [2017] NSWSC 1342 Children’s Guardian v CXZ [2019] NSWSC 1083 CJT v Office of the Children’s Guardian [2016] NSWSC 738 CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 CSW v Children's Guardian [2017] NSWCATAD 326 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 DJS v Children's Guardian [2018] NSWCATAD 71 GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 M v M (1988) 166 CLR 69 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Secretary, Department of Justice v LMB [2012] VSCA 143 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DWY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Solicitors: Crown Solicitor (Respondent) Applicant (Self represented)
File Number(s):	2019/00185213
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…