BPE v Children’s Guardian [2015] NSWCATAD 168

BPE v Children’s Guardian [2015] NSWCATAD 168

Although the applicant's conduct was unprofessional, crossed professional boundaries and was serious because it was repeated, it was at the less serious end of the scale, there was no evidence of sexual motivation or an attempt to establish an improper relationship with children, and the Tribunal was reasonably satisfied that the applicant had developed greater insight, gained classroom management strategies and was highly unlikely to repeat the conduct. The Tribunal therefore was not reasonably satisfied that he posed a risk to the safety of children, so the correct and preferable decision was to grant the clearance.

Jurisdiction
Australia
Judgment Date
12 August 2015
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance / Merits Review Decision
Outcome
The decision under review was set aside and a substituted decision made that the respondent grant the applicant a working with children check clearance authorising paid and unpaid child-related work.
Legal Topics
['working With Children Check Clearance' 'risk to the Safety of Children' 'sexual Misconduct/crossing Professional Boundaries' 'correct and Preferable Decision']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk to the Safety of Children' 'sexual Misconduct/crossing Professional Boundaries' 'correct and Preferable Decision']

Case Brief

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance / Merits Review Decision

Legal Issues

  1. 1 ['Whether the applicant poses a risk to the safety of children for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the correct and preferable decision was to refuse or grant the applicant a working with children check clearance authorising paid and unpaid child-related work.']

Ratio Decidendi

Although the applicant's conduct was unprofessional, crossed professional boundaries and was serious because it was repeated, it was at the less serious end of the scale, there was no evidence of sexual motivation or an attempt to establish an improper relationship with children, and the Tribunal was reasonably satisfied that the applicant had developed greater insight, gained classroom management strategies and was highly unlikely to repeat the conduct. The Tribunal therefore was not reasonably satisfied that he posed a risk to the safety of children, so the correct and preferable decision was to grant the clearance.

Court Disposition

The decision under review was set aside and a substituted decision made that the respondent grant the applicant a working with children check clearance authorising paid and unpaid child-related work.

Orders

  • ['The decision of the Respondent dated 15 October 2014 to refuse to grant the Applicant a working with children check clearance is set aside.' 'A decision is substituted that the Respondent grant the Applicant a working with children check clearance authorising the Applicant to engage in paid and unpaid...