CFW v Children's Guardian [2017] NSWCATAD 102

CFW v Children's Guardian [2017] NSWCATAD 102

Although there remains a lingering doubt or suspicion regarding whether the applicant knowingly downloaded child pornography, the Tribunal was not satisfied on the balance of probabilities that the applicant deliberately did so. Having regard to all facts including expert evidence, time elapsed since the events, changed circumstances, absence of further offending, and management of risk factors, the Tribunal found that the applicant does not pose a real and appreciable risk to children and should be granted a Working with Children Check clearance.

Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Administrative Review / Re Hearing Following Supreme Court Remitter
Outcome
Application for review allowed and clearance granted.
Legal Topics
['working With Children Checks' 'risk Assessment' 'clearance Refusal and Review' 'assessment of Risk to Children' 'procedural Fairness']
['administrative Law' 'child Protection Law' 'equal Opportunity Law'] ['working With Children Checks' 'risk Assessment' 'clearance Refusal and Review' 'assessment of Risk to Children' 'procedural Fairness']

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Procedural Posture

Administrative Review / Re Hearing Following Supreme Court Remitter

Legal Issues

  1. 1 ['Whether the applicant poses a real and appreciable risk to children under the Child Protection (Working with Children) Act 2012 (NSW)' 'Whether the applicant intentionally sought out child pornography' 'Application of legislative requirements in risk assessment for Working with Children Check']

Ratio Decidendi

Although there remains a lingering doubt or suspicion regarding whether the applicant knowingly downloaded child pornography, the Tribunal was not satisfied on the balance of probabilities that the applicant deliberately did so. Having regard to all facts including expert evidence, time elapsed since the events, changed circumstances, absence of further offending, and management of risk factors, the Tribunal found that the applicant does not pose a real and appreciable risk to children and should be granted a Working with Children Check clearance.

Court Disposition

Application for review allowed and clearance granted.

Orders

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