DFR v Children’s Guardian [2018] NSWCATAD 184

DFR v Children’s Guardian [2018] NSWCATAD 184

The applicant did not pose a real and appreciable risk to the safety of children. The 2013 common assault occurred when she was 16 in a difficult residential care environment, was her only conviction, and was unlikely to recur given her subsequent stable life, counselling, studies, work and contact with her son. The Tribunal was not satisfied that any intellectual disability made her a risk to children, and any risk posed by her former partner could not be used to find that the applicant herself posed such a risk. A reasonable person with knowledge of the material would allow direct unsupervised contact with the applicant while engaged in child-related work, and granting the clearance was...

Jurisdiction
Australia
Judgment Date
15 August 2018
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance / Review by the NSW Civil and Administrative Tribunal Under S 27 of the Child Protection (working With Children) Act 2012
Outcome
The decision refusing to grant the applicant a working with children check clearance was set aside and a clearance was granted in substitution.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'juvenile Offending' 'common Assault' 'intellectual Disability' 'public Interest' 'reasonable Person Test']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'juvenile Offending' 'common Assault' 'intellectual Disability' 'public Interest' 'reasonable Person Test']

Case Brief

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance / Review by the NSW Civil and Administrative Tribunal Under S 27 of the Child Protection (working With Children) Act 2012

Legal Issues

  1. 1 ['Whether the applicant posed a real and appreciable risk to the safety of children.' "Whether the applicant's 2013 juvenile common assault offence justified refusal of a working with children check clearance." "Whether findings or opinions concerning the applicant's intellectual disability were relevant to the assessment of risk to children." "Whether risks associated with the applicant's former partner could properly be used to assess the applicant as posing a risk to children." 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while she was engaged in child-related work.' 'Whether it was in the public interest to grant the applicant a working with children check clearance.']

Ratio Decidendi

The applicant did not pose a real and appreciable risk to the safety of children. The 2013 common assault occurred when she was 16 in a difficult residential care environment, was her only conviction, and was unlikely to recur given her subsequent stable life, counselling, studies, work and contact with her son. The Tribunal was not satisfied that any intellectual disability made her a risk to children, and any risk posed by her former partner could not be used to find that the applicant herself posed such a risk. A reasonable person with knowledge of the material would allow direct unsupervised contact with the applicant while engaged in child-related work, and granting the clearance was...

Court Disposition

The decision refusing to grant the applicant a working with children check clearance was set aside and a clearance was granted in substitution.

Orders

  • ['The decision of the respondent dated 3 October 2017 to refuse to grant the applicant a working with children check clearance is set aside.' 'In substitution for that decision, the following decision is made: The applicant is to be granted a working with children check clearance.']