BRF v Children’s Guardian [2015] NSWCATAD 169

BRF v Children’s Guardian [2015] NSWCATAD 169

Having regard to the findings of sexual misconduct and grooming established by the EPAC investigation, the applicant’s ongoing lack of insight into the seriousness of his conduct, its impact on the victim, and the boundaries of the teacher/student relationship, together with inconsistent evidence, minimisation and lack of full disclosure, the Tribunal is not satisfied that the applicant does not pose a real and appreciable risk to the safety of children. The paramount consideration being the protection of children, and applying a protective (not punitive) jurisdiction, the correct and preferable decision is to affirm the refusal of a working with children check clearance.

Jurisdiction
Australia
Judgment Date
18 August 2015
Procedural Posture
Administrative Review / Merits Hearing and Decision
Outcome
Decision of the Children's Guardian to refuse to grant the applicant a Working with Children Check clearance is affirmed.
Legal Topics
['working With Children Check' 'risk Assessment' 'sexual Misconduct' 'teacher/student Relationship' 'merits Review' 'paramountcy of Child Safety']
['administrative Law' 'child Protection Law'] ['working With Children Check' 'risk Assessment' 'sexual Misconduct' 'teacher/student Relationship' 'merits Review' 'paramountcy of Child Safety']

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Procedural Posture

Administrative Review / Merits Hearing and 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' "Whether the Children's Guardian's decision to refuse a working with children check clearance should be affirmed or set aside"]

Ratio Decidendi

Having regard to the findings of sexual misconduct and grooming established by the EPAC investigation, the applicant’s ongoing lack of insight into the seriousness of his conduct, its impact on the victim, and the boundaries of the teacher/student relationship, together with inconsistent evidence, minimisation and lack of full disclosure, the Tribunal is not satisfied that the applicant does not pose a real and appreciable risk to the safety of children. The paramount consideration being the protection of children, and applying a protective (not punitive) jurisdiction, the correct and preferable decision is to affirm the refusal of a working with children check clearance.

Court Disposition

Decision of the Children's Guardian to refuse to grant the applicant a Working with Children Check clearance is affirmed.

Orders

  • ["The decision of the Children's Guardian dated 8 January 2015 to refuse to grant the applicant a Working with Children Check clearance is affirmed."]