CEY v Children’s Guardian [2016] NSWCATAD 231

CEY v Children’s Guardian [2016] NSWCATAD 231

The applicant was not a disqualified person and there was no presumption that he posed a risk to the safety of children. Although the 1996 alleged conduct was serious if true and, even on the applicant's account, involved a serious breach of professional boundaries, and although the 2006 refuge boundary concerns were concerning, the Tribunal placed weight on the long passage of time, the absence of further offending or workplace complaints, the applicant's forthright evidence and demonstrated insight, and Dr Allnutt's evidence that he did not today pose a real and appreciable risk to the safety of children. The respondent's refusal was therefore not the correct and preferable decision.

Jurisdiction
Australia
Judgment Date
13 October 2016
Procedural Posture
Administrative Review of Decision Refusing an Application for a Working With Children Check Clearance / Review Under Section 27(1) of the Child Protection (working With Children) Act 2012 (nsw) After Hearing
Outcome
The respondent's decision was set aside and the applicant was granted a working with children check clearance in substitution for that decision.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'real and Appreciable Risk to Safety of Children' 'alleged Aggravated Sexual Assault' 'professional Boundaries in Child Related Work']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'real and Appreciable Risk to Safety of Children' 'alleged Aggravated Sexual Assault' 'professional Boundaries in Child Related Work']

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Procedural Posture

Administrative Review of Decision Refusing an Application for a Working With Children Check Clearance / Review Under Section 27(1) of the Child Protection (working With Children) Act 2012 (nsw) After Hearing

Legal Issues

  1. 1 ["Whether the respondent's refusal of the applicant's application for a working with children check clearance was the correct and preferable decision." 'Whether the applicant poses a real and appreciable risk to the safety of children today.' 'What weight should be given to the withdrawn 1996 aggravated sexual assault charge and the 2006 workplace boundary concerns.']

Ratio Decidendi

The applicant was not a disqualified person and there was no presumption that he posed a risk to the safety of children. Although the 1996 alleged conduct was serious if true and, even on the applicant's account, involved a serious breach of professional boundaries, and although the 2006 refuge boundary concerns were concerning, the Tribunal placed weight on the long passage of time, the absence of further offending or workplace complaints, the applicant's forthright evidence and demonstrated insight, and Dr Allnutt's evidence that he did not today pose a real and appreciable risk to the safety of children. The respondent's refusal was therefore not the correct and preferable decision.

Court Disposition

The respondent's decision was set aside and the applicant was granted a working with children check clearance in substitution for that decision.

Orders

  • ["The respondent's decision, made on 28 September 2015, to refuse the applicant's application for 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.']