DAK v Children’s Guardian [2017] NSWCATAD 374

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DAK v Children's Guardian [2017] NSWCATAD 374 Hearing dates: 20 September 2017 Date of orders: 21 December 2017 Decision date: 21 December 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M. Hitter, Senior Member A. Limbury, General Member Decision: The application for an enabling order is dismissed. 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) Cases Cited: BHA v Children's Guardian [2014] NSWCATAD 161 Category: Principal judgment Parties: DAK (Applicant) Children's Guardian (Respondent) Representation: Counsel: Ms Douglas-Baker (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 17/101162 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 "DAK" seeks an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 ("the Act"). DAK applied for a WWCC clearance because he and his wife want to become authorised carers for two of their grandchildren. 2. Pursuant to s 18 (1) of the Act, DAK is presumed to pose a risk to the safety of children. This is because DAK was convicted in 1985 of two charges on indecent assault pursuant to s 61 E(1) of the Crimes Act 1900 (NSW). For an enabling order to be granted by the Tribunal, DAK bears the onus of satisfying the Tribunal that on the balance of probabilities, he does not pose a risk to the safety of children: the Act, s 28(7). 3. Having regard to all the circumstances and the evidence presented, the Tribunal is satisfied that DAK poses a real and appreciable risk to the safety of children. The correct and preferable decision is to dismiss DAK's application for an enabling order: s. 63 Administrative Decisions Review Act 1997 (NSW). 4. The Tribunal was provided with the following material: 1. Application received on 3 April 2017. 2. Affidavit of DAK made on 14 July 2017. 3. Affidavit of YT (DAK's wife) made on 14 July 2017. 4. Bundle of documents received by the Tribunal from the Applicant on 18 July 2017 containing references in support of DAK's application. 5. Document from DAK replying to the Respondent received by the Tribunal on 4 August 2017. 6. Bundle of documents received by the Tribunal from the Applicant on 12 September 2017 containing references in support of DAK's application. 7. Reference from ST, DAK's daughter (undated). 8. Section 58 documents filed by the Respondent received on 21 June 2017. 9. Further documents filed by the Respondent received 21 July 2017. 10. Submissions on behalf of the Respondent received 23 August 2017. 1. DAK was not legally represented and attended the hearing with his wife (ST). The Children's Guardian (the Respondent) opposes the application for an enabling order.