DHC v Children's Guardian [2018] NSWCATAD 148

DHC v Children's Guardian [2018] NSWCATAD 148

The applicant overcame the statutory presumption that he posed a risk to the safety of children. The offence occurred more than 47 years earlier when he was 19, was agreed to be at the lower end of seriousness, was his only criminal conviction, and there was no evidence of subsequent child-related or relevant criminal conduct. The evidence showed no real and appreciable risk to children greater than that posed by an average 66 year old male, a reasonable person would allow direct unsupervised contact with the applicant in child-related work, and it was in the public interest to make the enabling order.

Jurisdiction
Australia
Judgment Date
16 July 2018
Procedural Posture
Application for an Enabling Order Relating to a Working With Children Check Clearance / Determined on the Papers
Outcome
Application for an enabling order granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'non Publication Order' 'carnal Knowledge Offence']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'non Publication Order' 'carnal Knowledge Offence']

Case Brief

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Procedural Posture

Application for an Enabling Order Relating to a Working With Children Check Clearance / Determined on the Papers

Legal Issues

  1. 1 ['Whether the applicant should be granted an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 declaring that he is not to be treated as a disqualified person in respect of the offence under s 71 (Repealed) of the Crimes Act 1900 (NSW).' 'Whether the applicant overcame the presumption in s 28(7) of the Child Protection (Working with Children) Act 2012 that he poses a risk to the safety of children.' "Whether the Children's Guardian should be ordered to grant the applicant a Working with Children Check Clearance." "Whether the applicant's identifying information should be protected by a non-publication order."]

Ratio Decidendi

The applicant overcame the statutory presumption that he posed a risk to the safety of children. The offence occurred more than 47 years earlier when he was 19, was agreed to be at the lower end of seriousness, was his only criminal conviction, and there was no evidence of subsequent child-related or relevant criminal conduct. The evidence showed no real and appreciable risk to children greater than that posed by an average 66 year old male, a reasonable person would allow direct unsupervised contact with the applicant in child-related work, and it was in the public interest to make the enabling order.

Court Disposition

Application for an enabling order granted.

Orders

  • ['The application for an enabling order is granted.' 'It is declared that the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of the offence of carnally knowing a girl between 10 and 16 under s 71 (Repealed) of the Crimes Act 1900 (NSW).' "The Children's Guardian must...