CFW v Children’s Guardian [2016] NSWCATAD 76

CFW v Children’s Guardian [2016] NSWCATAD 76

The Tribunal was unable, on the evidence before it, to make a positive finding on the balance of probabilities that the alleged criminal conduct occurred or that the applicant intentionally sought out or viewed child pornography. Having considered the statutory factors in s 30 and the evidence, including the expert evidence assessing low risk and the applicant's subsequent conduct, the Tribunal was not satisfied that the applicant currently posed a real and appreciable risk to the safety of children. The correct and preferable decision was therefore to set aside the Children's Guardian's refusal and require that a Working with Children clearance be granted.

Jurisdiction
Australia
Judgment Date
20 April 2016
Procedural Posture
Administrative Review of Decision Refusing a Working With Children Check Clearance / Final Decision
Outcome
The decision of the Children's Guardian to refuse to grant the applicant a clearance was set aside, and the respondent was directed to grant the applicant a Working with Children clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'child Related Work' 'child Pornography Allegations' 'merits Review']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'child Related Work' 'child Pornography Allegations' 'merits Review']

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Procedural Posture

Administrative Review of Decision Refusing a Working With Children Check Clearance / Final Decision

Legal Issues

  1. 1 ['What is the correct and preferable decision in relation to granting or refusing the applicant a Working with Children clearance.' 'Whether the applicant poses a real and appreciable risk to the safety of children.' 'Whether the evidence was sufficient to make a positive finding that the applicant intentionally viewed or sought out child pornography or child abuse material.' 'Whether, in the absence of a positive finding about the alleged conduct, the Tribunal could still be satisfied that the applicant posed a risk to children.']

Ratio Decidendi

The Tribunal was unable, on the evidence before it, to make a positive finding on the balance of probabilities that the alleged criminal conduct occurred or that the applicant intentionally sought out or viewed child pornography. Having considered the statutory factors in s 30 and the evidence, including the expert evidence assessing low risk and the applicant's subsequent conduct, the Tribunal was not satisfied that the applicant currently posed a real and appreciable risk to the safety of children. The correct and preferable decision was therefore to set aside the Children's Guardian's refusal and require that a Working with Children clearance be granted.

Court Disposition

The decision of the Children's Guardian to refuse to grant the applicant a clearance was set aside, and the respondent was directed to grant the applicant a Working with Children clearance.

Orders

  • ["The decision of the Children's Guardian dated 12 June 2015 to refuse to grant the applicant a clearance is set aside." 'The respondent is to grant the applicant a working with children clearance.']