CHN v Children's Guardian [2016] NSWCATAD 294

CHN v Children's Guardian [2016] NSWCATAD 294

The correct and preferable decision was to grant the applicant a Working with Children Check clearance because, taking into account the matters required by s 30(1) of the Child Protection (Working with Children) Act 2012 (NSW), the evidence established on the balance of probabilities that the applicant did not pose a real and appreciable risk of harm to children. The 1982 offences were serious but occurred 34 years earlier when the applicant was 15; his later adult misconduct, although anti-social and sometimes serious, was not shown to have been directed at children or to have created a real or appreciable risk to their safety.

Jurisdiction
Australia
Judgment Date
15 December 2016
Procedural Posture
Application for Administrative Review of Refusal to Grant a Working With Children Check Clearance / Final Decision
Outcome
The application succeeded; the refusal decision was set aside and a Working with Children Check clearance was ordered to be granted.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'protective Jurisdiction' 'correct and Preferable Decision' 'transitional Application of Statutory Amendments']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'protective Jurisdiction' 'correct and Preferable Decision' 'transitional Application of Statutory Amendments']

Case Brief

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Procedural Posture

Application for Administrative Review of Refusal to Grant a Working With Children Check Clearance / Final Decision

Legal Issues

  1. 1 ['Whether the 2015 amendments inserting s 15(4A) and s 30(1A) into the Child Protection (Working with Children) Act 2012 (NSW) applied to the application.' 'Whether, as at the date of hearing, the applicant posed a real and appreciable risk to children.' 'Whether the correct and preferable decision was to refuse or grant the applicant a Working with Children Check clearance.']

Ratio Decidendi

The correct and preferable decision was to grant the applicant a Working with Children Check clearance because, taking into account the matters required by s 30(1) of the Child Protection (Working with Children) Act 2012 (NSW), the evidence established on the balance of probabilities that the applicant did not pose a real and appreciable risk of harm to children. The 1982 offences were serious but occurred 34 years earlier when the applicant was 15; his later adult misconduct, although anti-social and sometimes serious, was not shown to have been directed at children or to have created a real or appreciable risk to their safety.

Court Disposition

The application succeeded; the refusal decision was set aside and a Working with Children Check clearance was ordered to be granted.

Orders

  • ["The decision of the Children's Guardian dated 6 November 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.']