BQC v Children’s Guardian [2016] NSWCATAD 129

BQC v Children’s Guardian [2016] NSWCATAD 129

The Tribunal was not reasonably satisfied on the balance of probabilities that the historical sexual misconduct allegations were established, and on all of the evidence, including the significant passage of time, absence of criminal record or pattern of relevant conduct, the applicant's evidence, and expert assessment of low future risk, the applicant did not currently pose a real and appreciable risk to the safety of children. The correct and preferable decision was therefore to set aside the refusal and grant the clearance.

Jurisdiction
Australia
Judgment Date
23 June 2016
Procedural Posture
Administrative Review of Decision Refusing Working With Children Check Clearance / Final Decision After Hearing
Outcome
The respondent's decision to refuse the applicant a clearance was set aside and the applicant was granted a Working with Children Check clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'protective Jurisdiction' 'real and Appreciable Risk' 'merits Review']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'protective Jurisdiction' 'real and Appreciable Risk' 'merits Review']

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Procedural Posture

Administrative Review of Decision Refusing Working With Children Check Clearance / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the correct and preferable decision was to grant or refuse the applicant a Working with Children Check clearance.' 'Whether the applicant posed a real and appreciable risk to the safety of children.' 'Whether the evidence was sufficient to make a positive finding that historical allegations of sexual misconduct occurred.' 'What weight should be given to workplace investigation findings and counselling or treatment records.']

Ratio Decidendi

The Tribunal was not reasonably satisfied on the balance of probabilities that the historical sexual misconduct allegations were established, and on all of the evidence, including the significant passage of time, absence of criminal record or pattern of relevant conduct, the applicant's evidence, and expert assessment of low future risk, the applicant did not currently pose a real and appreciable risk to the safety of children. The correct and preferable decision was therefore to set aside the refusal and grant the clearance.

Court Disposition

The respondent's decision to refuse the applicant a clearance was set aside and the applicant was granted a Working with Children Check clearance.

Orders

  • ['The decision of the respondent dated 5 December 2014 to refuse to grant the applicant a clearance is set aside.' 'In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance.']