CDD v Children’s Guardian [2016] NSWCATAD 85

CDD v Children’s Guardian [2016] NSWCATAD 85

The Tribunal was not comfortably satisfied on the balance of probabilities that CDD sexually assaulted his daughter or behaved in a sexually inappropriate way towards her. The Tribunal gave little or no weight to several unsubstantiated allegations and concerns, accepted evidence explaining the daughter's rash and the context of other conduct, and found no likelihood of CDD engaging in sexual misconduct or offending behaviour. Applying s30(1) and s15(4) of the Child Protection (Working with Children) Act 2012, the Tribunal was not satisfied that CDD posed a real and appreciable risk to the safety of children, so the preferable decision was to grant the clearance.

Jurisdiction
Australia
Judgment Date
05 May 2016
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance / Review Under S27 of the Child Protection (working With Children) Act 2012
Outcome
The Children's Guardian's decision was set aside and substituted with a decision that the respondent grant CDD a working with children check clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'real and Appreciable Risk to Children' 'sexual Assault Allegations Dismissed' 'correct and Preferable Decision']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'real and Appreciable Risk to Children' 'sexual Assault Allegations Dismissed' 'correct and Preferable Decision']

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance / Review Under S27 of the Child Protection (working With Children) Act 2012

Legal Issues

  1. 1 ["Whether the Children's Guardian's decision to refuse to grant CDD a working with children check clearance should be set aside." 'Whether CDD posed a risk to the safety of children within the meaning of the Child Protection (Working with Children) Act 2012.' 'Whether the evidence established on the balance of probabilities, as modified by s140(2) of the Evidence Act 1995 (NSW), that CDD sexually assaulted or behaved in a sexually inappropriate way towards his daughter.' 'Whether the preferable decision was to grant CDD a working with children check clearance.']

Ratio Decidendi

The Tribunal was not comfortably satisfied on the balance of probabilities that CDD sexually assaulted his daughter or behaved in a sexually inappropriate way towards her. The Tribunal gave little or no weight to several unsubstantiated allegations and concerns, accepted evidence explaining the daughter's rash and the context of other conduct, and found no likelihood of CDD engaging in sexual misconduct or offending behaviour. Applying s30(1) and s15(4) of the Child Protection (Working with Children) Act 2012, the Tribunal was not satisfied that CDD posed a real and appreciable risk to the safety of children, so the preferable decision was to grant the clearance.

Court Disposition

The Children's Guardian's decision was set aside and substituted with a decision that the respondent grant CDD a working with children check clearance.

Orders

  • ["The decision of the Children's Guardian dated 29 July 2015 to refuse to grant the applicant a working with children check clearance is set aside." 'In substitution, the respondent is to grant the applicant a working with children check clearance.']