CGN v Children’s Guardian [2016] NSWCATAD 138

CGN v Children’s Guardian [2016] NSWCATAD 138

The Tribunal was not satisfied on the balance of probabilities that the Applicant posed a real and appreciable risk to the safety of children. The serious historical allegations were not substantiated before the Tribunal, the sexual allegations were more than 35 years old, there had been no similar complaints since, the AVO matters arose in a domestic context without proven breaches, the psychologist assessed the Applicant as not posing a real or appreciable risk to children, and the Applicant had 34 years of daily contact with children as a bus driver without incident or complaint. The correct and preferable decision was therefore to set aside the refusal and grant the clearance.

Jurisdiction
Australia
Judgment Date
06 July 2016
Procedural Posture
Administrative Review of Refusal of a Working With Children Check Clearance / Principal Judgment After Hearing of Application for Review Under S 27 of the Child Protection (working With Children) Act 2012 (nsw)
Outcome
The decision of the Respondent to refuse a Working with Children Clearance was set aside and the Applicant was granted a Working with Children Check clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'safety of Children' 'historical Sexual Assault Allegations' 'apprehended Violence Orders']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'safety of Children' 'historical Sexual Assault Allegations' 'apprehended Violence Orders']

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Procedural Posture

Administrative Review of Refusal of a Working With Children Check Clearance / Principal Judgment After Hearing of Application for Review Under S 27 of the Child Protection (working With Children) Act 2012 (nsw)

Legal Issues

  1. 1 ['Whether the 2015 amendments to the Child Protection (Working with Children) Act 2012 (NSW) applied to the proceedings.' 'Whether the Applicant posed a real and appreciable risk to the safety of children.' 'What weight should be given to historical charges, acquittals, withdrawn charges, AVOs and other material in assessing risk.' 'Whether the correct and preferable decision was to grant or refuse a Working with Children Check clearance.']

Ratio Decidendi

The Tribunal was not satisfied on the balance of probabilities that the Applicant posed a real and appreciable risk to the safety of children. The serious historical allegations were not substantiated before the Tribunal, the sexual allegations were more than 35 years old, there had been no similar complaints since, the AVO matters arose in a domestic context without proven breaches, the psychologist assessed the Applicant as not posing a real or appreciable risk to children, and the Applicant had 34 years of daily contact with children as a bus driver without incident or complaint. The correct and preferable decision was therefore to set aside the refusal and grant the clearance.

Court Disposition

The decision of the Respondent to refuse a Working with Children Clearance was set aside and the Applicant was granted a Working with Children Check clearance.

Orders

  • ['The decision of the Respondent to refuse a Working with Children Clearance is set aside.' 'The Applicant is granted a Working with Children Check clearance.']