CLR v Children's Guardian

CLR v Children's Guardian - [2017] NSWCATAD 158 - NSWCATAD 2016 case summary — Zoe

Legal principles

The Child Protection (Working with Children) Act 2012 ('the Act') provides that a worker must not engage in child-related work unless he or she holds such a clearance (section 8 of the Act).
The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have Working With Children Check clearances (section 3 of the Act).
The Children's Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
Under section 27 of the Act, the Tribunal has the power to review a decision of the Children's Guardian to refuse a Working With Children Check clearance. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it (see section 63 of the Administrative Decisions Review Act 1997.)
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. In this case there is no presumption that the applicant poses a risk to children.
In considering whether an applicant poses a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
That test has been held to be applicable in this Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra).
Due to the sensitive nature of these proceedings, an order was made under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant was not to be published without the leave of the Tribunal. For this purpose the pseudonym CLR has been used for the applicant's name.

[5]

CLR

The applicant provided an affidavit and gave oral evidence before the Tribunal.
Having considered her affidavit and oral evidence, we are satisfied of the following:

The applicant is the mother of two young daughters;
The applicant cares for her nieces and nephews on a weekly basis;
In 2015, the applicant obtained a Diploma in Early Childhood Education and Care and intends to complete a teaching degree in order to teach primary-aged school;
The applicant engages in volunteer work for an organisation established to combat domestic violence.

In relation to the altercation on 12 July 2015, we are satisfied that it arose as a result of an ongoing family dispute and that the applicant's erratic driving and subsequent damage to a fence in the neighbourhood were caused by her fear of being harmed by other members of her family. We are not satisfied that the applicant intended to cause harm to any person or property on the evening of the altercation.
We accept the applicant's evidence that, on the night of the altercation, her nine-year-old cousin had hit a bottle over the applicant's sister's head and that the applicant had feared for her sister's welfare and safety. No evidence has been produced by the respondent to dispute the applicant's evidence in this regard.
We accept that the nine-year-old cousin had been a witness to the altercation but, on the evidence before us, do not accept that the applicant can be held responsible either for his presence at the altercation or any emotional harm that may have been suffered by him as a result of the incident. We accept the applicant's evidence that she never intended to hurt anyone on the night of the altercation.
We are not satisfied that the applicant has been untruthful in her evidence. No evidence has been produced to refute what she has says. We accept that on the night of the altercation, the applicant feared for her safety and for that of her sister and sought to get away from the area in which the dispute was taking place. We accept that it was in this context that damage occurred to a front fence and to the applicant's motor vehicle.

[23]

Is it in the public interest to make the order?

We must also be satisfied under the second part of s.30 (1A) of the Child Protection (Working with Children) Act that the order is in the public interest.
The public interest considers the wider community interests over private interests.
In Director of Public Prosecution v Smith (1991) VR 6 the Court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
The Tribunal must also consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
As set out above, on the evidence before us, we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children. We are satisfied, on the evidence, that the applicant did not intend to harm anyone or any property during the altercation in July 2015 and that the damage that did occur to property was unintentional and as a result of the applicant's fear for her own safety and that of her sister. There is no evidence to dispute that the applicant is anything but a loving and committed parent and aunt, and a longstanding volunteer for an organisation seeking to help victims of domestic violence.
She is the holder of a Diploma in Early Childhood Education and Care and has ambitions of qualifying as a teacher. Without a Working With Children Check clearance, she will be unable to work as a teacher. Taking into account all the information before us, we are satisfied that it is in the public interest to grant the applicant a Working With Children Check clearance.

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Cases Cited (9)