DES v Children’s Guardian [2018] NSWCATAD 198

DES v Children’s Guardian [2018] NSWCATAD 198

The correct and preferable decision was to affirm the refusal of a clearance because the applicant posed a real and appreciable risk to the safety of children. Although the Tribunal found insufficient evidence to make a positive finding that the applicant committed rape in 2003, it retained a lingering doubt or suspicion. More significantly, it found that in 2016 and 2017 the applicant physically disciplined CD by smacking him and yelling close to his face, then abruptly ceased all communication with him after CD reported the conduct, causing likely physical and psychological harm. The applicant lacked insight into the impact of his conduct on a vulnerable child with autism and emotional...

Jurisdiction
Australia
Judgment Date
28 August 2018
Procedural Posture
Administrative Review of Decision to Refuse a Working With Children Check Clearance / Final Decision After Hearing
Outcome
The decision of the Children's Guardian to refuse the applicant a working with children check clearance is affirmed.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'child Related Work' 'safety of Children' 'correct and Preferable Decision']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'child Related Work' 'safety of Children' 'correct and Preferable Decision']

Case Brief

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Procedural Posture

Administrative Review of Decision to Refuse a Working With Children Check Clearance / Final Decision After Hearing

Legal Issues

  1. 1 ["Whether the Tribunal should affirm or set aside the Children's Guardian's decision to refuse the applicant a working with children check clearance." 'Whether, as at the date of hearing, the applicant posed a real and appreciable risk to the safety of children if granted a clearance to work in child-related work.' "Whether the applicant's 2003 rape charge, although discontinued, gave rise to a lingering doubt or suspicion relevant to risk assessment." "Whether the applicant's conduct towards his partner's grandchild in 2016 and 2017 demonstrated risk to children and likelihood of repetition." 'Whether the applicant had insight into the impact of his conduct on a vulnerable child.']

Ratio Decidendi

The correct and preferable decision was to affirm the refusal of a clearance because the applicant posed a real and appreciable risk to the safety of children. Although the Tribunal found insufficient evidence to make a positive finding that the applicant committed rape in 2003, it retained a lingering doubt or suspicion. More significantly, it found that in 2016 and 2017 the applicant physically disciplined CD by smacking him and yelling close to his face, then abruptly ceased all communication with him after CD reported the conduct, causing likely physical and psychological harm. The applicant lacked insight into the impact of his conduct on a vulnerable child with autism and emotional...

Court Disposition

The decision of the Children's Guardian to refuse the applicant a working with children check clearance is affirmed.

Orders

  • ["The Children's Guardian decision to refuse the applicant a working with children check clearance is affirmed."]