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DZF v Children's Guardian

DZF v Children's Guardian

Case [2020] NSWCATAD 41 7 February 2020

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Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZF v Children's Guardian [2020] NSWCATAD 41
Hearing dates: 20 January 2020
Date of orders: 07 February 2020
Decision date: 07 February 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Blake AM SC, Senior Member
R Royer, General Member
Decision:
(1) Decision of the respondent made on 10 July 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)
Education Act 1990 (NSW)
Ombudsman Act 1974 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v Office of the Children's Guardian [2014] NSWCATAD 111
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
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
Category: Principal judgment
Parties: DZF (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
S Swami (Applicant)
M Giacomo (Respondent)
Solicitors:
EXM Law Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2019/00244945
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…

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 DZF v Children's Guardian

Details

AGLC: DZF v Children's Guardian [2020] NSWCATAD 41
Case: [2020] NSWCATAD 41
Decision Date: 07 February 2020

CaseChat Overview and Summary

In the case of DZF v Children's Guardian, the applicant sought a review of a decision by the Children's Guardian under the Child Protection (Working with Children) Act 2012 (NSW) to deny them a working with children check clearance. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales. The primary issue before the Tribunal was whether the applicant posed a risk to the safety of children, which would disqualify them from obtaining a working with children check clearance.

The Tribunal considered the evidence presented by both parties, including the applicant's criminal history and character references, as well as the risk assessments conducted by the Children's Guardian. In reaching its decision, the Tribunal found that the Children's Guardian had failed to properly consider the applicant's rehabilitation and the mitigating factors that demonstrated their suitability to work with children. The Tribunal held that the decision to deny the applicant a working with children check clearance was unreasonable and not based on the relevant considerations.

Consequently, the Tribunal set aside the decision of the Children's Guardian and substituted it with a decision to grant the applicant a working with children check clearance. Additionally, the Tribunal made an order prohibiting the publication or broadcast of the names of any persons mentioned in the proceedings, with certain exceptions. This decision highlights the importance of ensuring that decisions affecting an individual's ability to work with children are made on the basis of relevant and proper considerations.

Orders

Orders of the court

(1) Decision of the respondent made on 10 July 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

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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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Citations

AGLC Citation

DZF v Children's Guardian [2020] NSWCATAD 41

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

Children's Guardian v CXZ
[2019] NSWSC 1083 Para 77

…in its judgment as it considers fit, provided there was overall compliance with the requisite statutory requirement: Children’s Guardian v CXZ [2019] NSWSC 1083 (CXZ) at [167]-[168].…
CMD v NSW Office of the Children's Guardian
[2018] NSWSC 1348 Para 76

…2016] NSWSC 1625 at [70] (corresponding to [14] and [15] of CFW) and [72] (corresponding to [16] of CFW); CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348 at [49] (in which express reference was made to a “three-stage analysis”).…
DAR v Children's Guardian
[2018] NSWSC 942 Para 84

…rson, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].…
DJS v Children's Guardian
[2018] NSWCATAD 71 Para 71

…1 at [39]-[40]. The initial practical or forensic onus but not the legal onus is generally to be carried by the applicant: DJS v Children's Guardian [2018] NSWCATAD 71 at [32]-[33].…
CSW v Children's Guardian
[2017] NSWCATAD 326 Para 85

…In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of…
Children's Guardian v CVE
[2017] NSWSC 1342 Para 83

…de up its mind and reached a conclusion, based on the evidence, about the particular matters in sub-paragraphs (a) and (b): Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].…
CYY v Children's Guardian (No 2)
[2017] NSWCATAD 262 Para 87

…In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ where Bell J at [202] adopted the analysis that included consideration of factors such as the right o…
Children's Guardian v CKF
[2017] NSWSC 893 Para 78

…In Children's Guardian v CKF [2017] NSWSC 893 at [56] Davies J observed with respect to the comments of Harrison J in CFW at [16]:…
CTM v Children's Guardian
[2016] NSWCATAD 280 Para 82

…In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme ( Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was c…
CFJ v Office of the Children's Guardian
[2016] NSWSC 1625 Para 76

…CFW at [13]-[17] has been followed and applied: CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 at [70] (corresponding to [14] and [15] of CFW) and [72] (corresponding to [16] of CFW); CMD v NSW Office of Children’s Guardian [2018] NSWSC 1348 at [49] (in which express reference was made to a “three-stage a…
Office of the Children's Guardian v CFW
[2016] NSWSC 1406 Para 72

…In Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[17] Harrison J summarised these propositions as follows:…
CJT v Office of the Children's Guardian
[2016] NSWSC 738 Para 72

…SWSC 949 (V) at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 (CJT) at [40].…
BSR v Office of the Children's Guardian
[2015] NSWCATAD 264 Para 41

…although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41]. [17] A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 72

…reying on children”: Commission for Children and Young People v V [2002] NSWSC 949 (V) at [42]; BKE v Office of the Children’s Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children’s Guardian [2016] NSWSC 738 (CJT) at [40].…
BKV v Children's Guardian
[2015] NSWCATAD 65 Para 70

…decision is having regard to the material then before it including material which may not have been before the respondent: BKV v Children's Guardian [2015] NSWCATAD 65 at [9].…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 71

…Neither party bears an onus in an application for review under s 27 of the WWC Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [39]-[40]. The initial practical or forensic onus but n…
BJB v Office of the Children's Guardian
[2014] NSWCATAD 111 Para 81

…dministrative review under s 27, it is appropriate to have regard to both s 30(1) and s 15(4) considerations: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [45].…
ZZ v Secretary, Department of Justice
[2013] VSC 267 Para 82

…Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ), where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been…
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY
[2012] VSCA 143 Para 86

…In Secretary, Department of Justice v LMB [2012] VSCA 143 at [25]-[26] the Victorian Court of Appeal explained the operation of the "public interest" test in s 26(3) of the Working with Children Act 2005 (Vic), which operates to similar effect as s 30(1A)(b) of the WWC Act, in the following terms (footnotes omitte…
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
[2006] HCA 53 Para 71

…Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32], citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 at [39]-[40]. The initial practical or forensic onus but not the legal onus is generally to be carried by the applicant: DJS v Children's Guardian [2…
Commission for Young People v V
[2002] NSWSC 949

…[2019] NSWSC 1083 CJT v Office of the Children’s Guardian [2016] NSWSC 738 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…
M v M
[1988] HCA 68 Para 71

…n BKE, Beech-Jones J considered the approach to allegations that had not been proved, and noted that significant guidance could be derived from M v M (1988) 166 CLR 69, in which the High Court set out propositions for assessing risk to the safety of children in the context of Family Court litigation. Beech-Jones J a…

Legislation cited in this decision · 8

Children Act 2005 (Vic)
13(2)) 2 mentions (from Para 82)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 1)
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 72)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 3)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
1 mention (from Para 4)
Education Act 1990 (NSW)
1 mention (from Para 1)
Ombudsman Act 1974 (NSW)
1 mention (from Para 18)

Medium Neutral Citation:	DZF v Children's Guardian [2020] NSWCATAD 41
Hearing dates:	20 January 2020
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member R Royer, General Member
Decision:	(1) Decision of the respondent made on 10 July 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) Education Act 1990 (NSW) Ombudsman Act 1974 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v Office of the Children's Guardian [2014] NSWCATAD 111 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 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
Category:	Principal judgment
Parties:	DZF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S Swami (Applicant) M Giacomo (Respondent) Solicitors: EXM Law Pty Ltd (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00244945
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…