CDX v Children's Guardian [2016] NSWCATAD 17

CDX v Children's Guardian [2016] NSWCATAD 17

Although the applicant's criminal history, including assault, assault occasioning actual bodily harm, contravention of an apprehended domestic violence order, and domestic violence-related property damage, was serious, the evidence established that approximately 10 years had elapsed since the last relevant offending, the applicant had no further criminal charges, had addressed his alcohol misuse, completed relevant programs, maintained stable employment and family responsibilities, showed insight and remorse, and was assessed by a psychologist as presenting a low risk if he maintained his present lifestyle. Considering the statutory factors and the paramount consideration of child safety,...

Jurisdiction
Australia
Judgment Date
22 January 2016
Procedural Posture
Application for Administrative Review Under Section 27 of the Child Protection (working With Children) Act 2012 (nsw) of Refusal to Grant a Working With Children Check Clearance / Review by the Civil and Administrative Tribunal of New South Wales, Administrative and Equal Opportunity Division
Outcome
Application granted; the Children's Guardian's decision was set aside and the applicant was to be issued a Working with Children Check clearance.
Legal Topics
['refusal of Working With Children Check Clearance' 'risk to the Safety of Children' 'domestic Violence and Criminal History' 'correct and Preferable Decision' 'onus and Standard of Proof in Administrative Review']
['administrative Law' 'child Protection' 'working With Children Checks'] ['refusal of Working With Children Check Clearance' 'risk to the Safety of Children' 'domestic Violence and Criminal History' 'correct and Preferable Decision' 'onus and Standard of Proof in Administrative Review']

Case Brief

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Procedural Posture

Application for Administrative Review Under Section 27 of the Child Protection (working With Children) Act 2012 (nsw) of Refusal to Grant a Working With Children Check Clearance / Review by the Civil and Administrative Tribunal of New South Wales, Administrative and Equal Opportunity Division

Legal Issues

  1. 1 ['What is the correct and preferable decision having regard to the material before the Tribunal.' 'Whether the applicant poses a real and appreciable risk to the safety of children.' "Whether the applicant's criminal history, including violence and domestic violence-related offending, warranted refusal of a Working with Children Check clearance." 'What onus and standard of proof apply in a review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW).']

Ratio Decidendi

Although the applicant's criminal history, including assault, assault occasioning actual bodily harm, contravention of an apprehended domestic violence order, and domestic violence-related property damage, was serious, the evidence established that approximately 10 years had elapsed since the last relevant offending, the applicant had no further criminal charges, had addressed his alcohol misuse, completed relevant programs, maintained stable employment and family responsibilities, showed insight and remorse, and was assessed by a psychologist as presenting a low risk if he maintained his present lifestyle. Considering the statutory factors and the paramount consideration of child safety,...

Court Disposition

Application granted; the Children's Guardian's decision was set aside and the applicant was to be issued a Working with Children Check clearance.

Orders

  • ["The application for review of the decision of the Children's Guardian filed 11 September 2015 is granted." "The decision of the Children's Guardian dated 18 August 2015 to refuse to grant the applicant a Working with Children Check clearance is set aside." "The Children's Guardian shall within 7 days issue to the...