CYI v Children’s Guardian [2017] NSWCATAD 357

CYI v Children’s Guardian [2017] NSWCATAD 357

The applicant remained a disqualified person because his conviction for indecent assault had not been quashed. Although the offence was old and he had no subsequent convictions, the Tribunal had concerns arising from later conduct involving a school visit to enquire about a young girl and correspondence to a sales assistant, and from the applicant's submissions about police corruption. In the absence of supportive expert evidence, particularly a psychologist or psychiatrist risk assessment, the applicant failed to prove that he did not pose a risk to the safety of children. The statutory presumption therefore applied and the enabling order was refused.

Jurisdiction
Australia
Judgment Date
01 December 2017
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Principal Judgment; Final Determination of Application
Outcome
The application for an enabling order was refused and dismissed, and a publication restriction order was made.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'child Related Work' 'publication Restriction']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'child Related Work' 'publication Restriction']

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Principal Judgment; Final Determination of Application

Legal Issues

  1. 1 ['Whether the applicant should be declared not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the applicant proved that he does not pose a risk to the safety of children.' "Whether the applicant's work as a glass fitter in schools required a Working With Children Check clearance."]

Ratio Decidendi

The applicant remained a disqualified person because his conviction for indecent assault had not been quashed. Although the offence was old and he had no subsequent convictions, the Tribunal had concerns arising from later conduct involving a school visit to enquire about a young girl and correspondence to a sales assistant, and from the applicant's submissions about police corruption. In the absence of supportive expert evidence, particularly a psychologist or psychiatrist risk assessment, the applicant failed to prove that he did not pose a risk to the safety of children. The statutory presumption therefore applied and the enabling order was refused.

Court Disposition

The application for an enabling order was refused and dismissed, and a publication restriction order was made.

Orders

  • ['The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) filed on 10 February 2017 is refused and dismissed.' 'With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in...