DHE v Children’s Guardian [2018] NSWCATAD 208

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DHE v Children's Guardian [2018] NSWCATAD 208 Hearing dates: 11 April 2018 Date of orders: 06 September 2018 Decision date: 06 September 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member P Foreman, General Member Decision: (1) The Respondent's decision 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) Crimes Act 1900 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commissioner for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: DHE (Applicant) Children's Guardian (Respondent) Representation: Counsel: J McDonald (Respondent) File Number(s): 2018/00004539 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 ("DHE") applied for a Working with Children Check (WWCC) Clearance in January 2016 nominating 'clubs and other bodies providing services to children'. DHE sought a WWCC clearance in order to practice as an instructor in a particular sporting activity, which is referred to in this decision as "the sporting activity". DHE is also a qualified school teacher and held senior roles including high school principal. A WWCC Clearance was granted by the Children's Guardian ("the Respondent") as there were no records to suggest DHE posed a risk to the safety of children. 2. Subsequently the Respondent became aware of an investigation conducted by the Employee Performance and Conduct Unit (EPAC) of the NSW Department of Education (DOE) into an alleged breach of principal/student boundaries by DHE with a 15 year old female student ("P"). The investigation led to the dismissal of DHE from his role as school principal and placing him on the DOE 'not to be employed register'. 3. DHE commenced proceedings in the Industrial Relations Commission of NSW (the IRC) for relief in respect of unfair dismissal and by way of a public sector disciplinary appeal. DHE told the Tribunal he discontinued both proceedings before they were finalised because of financial pressures but he remains critical of aspects of the investigation undertaken by the DOE. 4. The Respondent conducted a risk assessment pursuant to section 15(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and determined that DHE posed a risk to the safety of children and cancelled his WWCC Clearance. DHE seeks a review under section 27 of the Act of the Respondent's decision. 5. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it: section 63 Administrative Decisions Review Act 1997. The paramount consideration is the safety, welfare and wellbeing of children and, in particular protecting them from child abuse: s 4, the Act. 6. The Tribunal has concluded that DHE poses an unacceptable risk to the safety of children for the reasons set out below and affirms the Respondent's decision to cancel DHE's WWCC clearance.