CEV v Children’s Guardian [2017] NSWCATAD 10

CEV v Children’s Guardian [2017] NSWCATAD 10

The Tribunal was not satisfied that the applicant posed a real and appreciable risk to the safety of children. The sexual assault allegations were serious, but the Tribunal had no complainant statements, no trial transcript and no complainant available for evidence or cross-examination; accordingly it gave no weight to the first allegations and only neutral or limited weight to the later COPS record. Against the fact that two complaints had been made, the Tribunal gave weight to the psychiatric evidence that the applicant had no sexualised interest in children and did not pose a danger, his age and physical limitations, his more than 20 years of bus driving without incident and his...

Jurisdiction
Australia
Judgment Date
13 January 2017
Procedural Posture
Application for Review of a Decision Refusing a Working With Children Check Clearance / Final Administrative Review Decision After Hearing
Outcome
The decision of the Children's Guardian dated 24 August 2015 was set aside and, in substitution, the applicant was granted a working with children check clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'untested Allegations' 'natural Justice' 'real and Appreciable Risk']
['administrative Law' 'child Protection' 'evidence'] ['working With Children Check Clearance' 'risk Assessment' 'untested Allegations' 'natural Justice' 'real and Appreciable Risk']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant poses a risk to the safety of children for the purposes of a working with children check clearance.' 'What weight should be given to serious sexual assault allegations where there were no complainant statements, no trial transcript and no complainant available for testing by cross-examination.' 'Whether the correct and preferable decision was to affirm the refusal or grant the clearance.']

Ratio Decidendi

The Tribunal was not satisfied that the applicant posed a real and appreciable risk to the safety of children. The sexual assault allegations were serious, but the Tribunal had no complainant statements, no trial transcript and no complainant available for evidence or cross-examination; accordingly it gave no weight to the first allegations and only neutral or limited weight to the later COPS record. Against the fact that two complaints had been made, the Tribunal gave weight to the psychiatric evidence that the applicant had no sexualised interest in children and did not pose a danger, his age and physical limitations, his more than 20 years of bus driving without incident and his...

Court Disposition

The decision of the Children's Guardian dated 24 August 2015 was set aside and, in substitution, the applicant was granted a working with children check clearance.

Orders

  • ["The decision of the Children's Guardian dated 24 August 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.']