CEJ v Children's Guardian [2016] NSWCATAD 164

CEJ v Children's Guardian [2016] NSWCATAD 164

Although the 2007 offence was serious, it was committed when the applicant was 18, the victim was also 18, the applicant had no other convictions or complaints, had undertaken substantial psychological treatment, had shown remorse and rehabilitation, had completed social work studies and placements, and expert evidence indicated he was very unlikely to re-offend. Applying the statutory review factors and the correct and preferable decision test, the Tribunal concluded the applicant did not pose a real and appreciable risk to the safety of children and should be granted a Working With Children Check Clearance.

Jurisdiction
Australia
Judgment Date
27 June 2016
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance / Hearing of the Applicant's Application to Review the Children's Guardian's Decision
Outcome
The refusal decision was set aside and a Working With Children Check Clearance was granted in substitution.
Legal Topics
['working With Children Check Clearance' 'review of Administrative Decision' 'risk Assessment for Child Related Work' 'effect of Prior Criminal Conviction' 'safety, Welfare and Well Being of Children']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'review of Administrative Decision' 'risk Assessment for Child Related Work' 'effect of Prior Criminal Conviction' 'safety, Welfare and Well Being of Children']

Case Brief

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance / Hearing of the Applicant's Application to Review the Children's Guardian's Decision

Legal Issues

  1. 1 ["Whether the Children's Guardian's decision to refuse the applicant a Working With Children Check Clearance should be set aside." 'Whether, having regard to the matters in s 30(1) of the Child Protection (Working With Children) Act 2012, the applicant posed a real and appreciable risk to the safety of children.' 'What was the correct and preferable decision under s 63 of the Administrative Decisions Review Act 1997.']

Ratio Decidendi

Although the 2007 offence was serious, it was committed when the applicant was 18, the victim was also 18, the applicant had no other convictions or complaints, had undertaken substantial psychological treatment, had shown remorse and rehabilitation, had completed social work studies and placements, and expert evidence indicated he was very unlikely to re-offend. Applying the statutory review factors and the correct and preferable decision test, the Tribunal concluded the applicant did not pose a real and appreciable risk to the safety of children and should be granted a Working With Children Check Clearance.

Court Disposition

The refusal decision was set aside and a Working With Children Check Clearance was granted in substitution.

Orders

  • ["The decision of the Children's Guardian of 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance is set aside." 'In substitution for that decision the following decision is made: The applicant is granted a Working With Children Check Clearance.']