DAE v Children's Guardian [2017] NSWCATAD 321

DAE v Children's Guardian [2017] NSWCATAD 321

The 2015 amendments did not apply because the applicant lodged his Working with Children Check volunteer clearance application before their commencement. Although the alleged indecent assaults, if they occurred, were serious and the Tribunal could not reject the allegations as groundless, it was not satisfied on the balance of probabilities that the applicant committed them. Considering all section 30(1) matters, the 27 years since the alleged conduct, the applicant's absence of criminal record, charges, complaints or child protection concerns, his continued community and surf lifesaving involvement, and the respondent's acknowledgment of his exemplary intervening record, the Tribunal...

Jurisdiction
Australia
Judgment Date
06 November 2017
Procedural Posture
Application for Administrative Review of Refusal to Grant a Working With Children Check Clearance / Final Decision
Outcome
The Children's Guardian's decision was set aside and the Working with Children Check clearance was granted.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'dismissed Indecent Assault Charges' 'protective Jurisdiction']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'dismissed Indecent Assault Charges' 'protective Jurisdiction']

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 the applicant posed a real and appreciable risk to the safety of children at the date of hearing.' 'Whether positive findings could be made on the balance of probabilities about the alleged indecent assaults, or whether the allegations could be rejected as groundless.' 'Whether the correct and preferable decision was to grant a Working with Children Check clearance.']

Ratio Decidendi

The 2015 amendments did not apply because the applicant lodged his Working with Children Check volunteer clearance application before their commencement. Although the alleged indecent assaults, if they occurred, were serious and the Tribunal could not reject the allegations as groundless, it was not satisfied on the balance of probabilities that the applicant committed them. Considering all section 30(1) matters, the 27 years since the alleged conduct, the applicant's absence of criminal record, charges, complaints or child protection concerns, his continued community and surf lifesaving involvement, and the respondent's acknowledgment of his exemplary intervening record, the Tribunal...

Court Disposition

The Children's Guardian's decision was set aside and the Working with Children Check clearance was granted.

Orders

  • ["The decision of the Children's Guardian dated 3 March 2017 to refuse to grant the applicant a Working with Children Check volunteer clearance is set aside." 'The application for a Working with Children Check clearance is granted.']