CYW v Children’s Guardian [2017] NSWCATAD 313

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYW v Children's Guardian [2017] NSWCATAD 313 Hearing dates: 11 August 2017 Date of orders: 30 October 2017 Decision date: 30 October 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member S Davison, General Member Decision: (1) The decision to cancel the Applicant's Working with Children Clearance is affirmed. Catchwords: ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - 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) Category: Principal judgment Parties: CYW (Applicant) Children's Guardian (Respondent) Representation: Counsel: Mr Calokerinos (Applicant) Mr Guterras (Respondent)

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2017/00053562 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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

Introduction 1. The Applicant "CYW" seeks a review of the decision made by the Children's Guardian ("the Respondent") to cancel her Working with Children Check (WWCC) clearance. CYW has been an authorised foster carer of three young girls (the foster children). In 2016 her biological son ("J") was charged with assault of one of the foster children ("S"). The assault comprised of J hitting S several times with a belt as a form of punishment or discipline. This came to the attention of the Respondent, which triggered a risk assessment pursuant to section 15 (3) of the Child Protection (Working with Children) Act 2012 ("the Act"). The trigger was information indicating CYW neglected a child in her care by not protecting her and not providing a supportive environment following a domestic incident during which S was harmed. The Respondent determined that CYW posed a risk to the safety of children. 2. The Respondent argues that CYW's capacity to care for children, including to protect them from harm, is not sufficient in order to find that she does not pose a risk to the safety of children. Evidence was presented that CYW relied on J to discipline the foster children. The charges against J were proven beyond a reasonable doubt in the Local Court and the conviction upheld on appeal in the District Court. The Tribunal accepts this finding, including that the assault occurred in the context of J disciplining or punishing S. 3. The evidence CYW gave in the Local Court and to the Tribunal suggests a preference to protect members of her own family, in particular her son J, over the care and protective needs of the foster children. CYW expressed a strong wish to resume care for the foster children, however the evidence in support of her application does not outweigh the concerns that arise in relation to her capacity to protect children from harm. The Tribunal finds CYW poses an unacceptable risk to the safety of children for the reasons set out below. 4. The Tribunal finds that the correct decision is to affirm the Respondent's decision to cancel the Applicant's WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63. 5. The Tribunal was provided with the following material: 1. Application received on 20 February 2017. 2. Submissions received on behalf of the Applicant on 14 June 2017. 3. Bundle of documents received from the Applicant's solicitors on 20 June 2017. 4. Bundle of documents received from the Applicant's solicitors on 28 April 2017. 5. Affidavit made by the Applicant on 6 December 2016. 6. Section 58 documents filed by the Respondent received on 9 June 2017. 7. Further documents filed by the Respondent received 13 June 2017. 8. Further documents filed by the Respondent received 15 June 2017. 9. Further documents filed by the Respondent received 3 August 2017. 10. Submissions on behalf of the Respondent received 13 June 2017. 1. CYW has separate proceedings in this Tribunal against the decision to cancel her authorization as a foster carer.