CYO v Children’s Guardian [2019] NSWCATAD 55

CYO v Children’s Guardian [2019] NSWCATAD 55

The Tribunal held that the applicant rebutted the statutory presumption that he posed a risk to the safety of children. Although the offences were serious, involved a vulnerable 15-year-old student and a teacher in authority, and there remained lingering doubt or suspicion about additional alleged misconduct, substantial weight was given to the passage of approximately 27 to 30 years, the absence of similar further criminal conduct, the applicant's remorse and insight, his support from family and community, and the expert evidence of Dr Collins that he was a low risk of reoffending. The Tribunal was also satisfied that a reasonable person would allow unsupervised contact with the...

Jurisdiction
Australia
Judgment Date
08 April 2019
Procedural Posture
Application for Enabling Order and Working With Children Check Clearance Under the Child Protection (working With Children) Act 2012 (nsw) / Decision After Hearing; Applicant's Costs Application Determined
Outcome
Application for enabling order granted; Working With Children Check clearance ordered; costs application dismissed.
Legal Topics
['application for Enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'statutory Presumption of Risk' 'indecent Assault of Child by Person in Authority' 'professional Boundaries' 'public Interest' 'costs in Tribunal Proceedings']
['administrative Law' 'child Protection' 'working With Children Checks' 'costs'] ['application for Enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'statutory Presumption of Risk' 'indecent Assault of Child by Person in Authority' 'professional Boundaries' 'public Interest' 'costs in Tribunal Proceedings']

Case Brief

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Procedural Posture

Application for Enabling Order and Working With Children Check Clearance Under the Child Protection (working With Children) Act 2012 (nsw) / Decision After Hearing; Applicant's Costs Application Determined

Legal Issues

  1. 1 ['Whether the applicant proved, on the balance of probabilities, that he does not pose a risk to the safety of children despite the statutory presumption in s 28(7) of the Child Protection (Working with Children) Act 2012 (NSW).' "Whether the Tribunal should declare that the applicant is not to be treated as a disqualified person and order the Children's Guardian to grant a Working With Children Check clearance." 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while engaged in child-related work and whether making the order was in the public interest.' 'Whether the Tribunal could or should award the applicant costs thrown away by reason of an adjournment following late filing of the AISNSW investigation report.']

Ratio Decidendi

The Tribunal held that the applicant rebutted the statutory presumption that he posed a risk to the safety of children. Although the offences were serious, involved a vulnerable 15-year-old student and a teacher in authority, and there remained lingering doubt or suspicion about additional alleged misconduct, substantial weight was given to the passage of approximately 27 to 30 years, the absence of similar further criminal conduct, the applicant's remorse and insight, his support from family and community, and the expert evidence of Dr Collins that he was a low risk of reoffending. The Tribunal was also satisfied that a reasonable person would allow unsupervised contact with the...

Court Disposition

Application for enabling order granted; Working With Children Check clearance ordered; costs application dismissed.

Orders

  • ['Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61E.' 'Pursuant to s 28 (6) of the Child Protection (Working...