DHZ v Children’s Guardian [2019] NSWCATAD 13

DHZ v Children’s Guardian [2019] NSWCATAD 13

The Tribunal found that while the applicant, as a teenager, engaged in serious inappropriate sexualised conduct towards his younger brother (including some acts of penetration with objects, but not proven to have included penile penetration), these events occurred over 27 years ago when he was himself an adolescent. There was no similar conduct since, no criminal record, and expert evidence concluded no present risk, with supporting lay evidence. The Tribunal was satisfied, in considering all section 30 factors, that the applicant does not pose a real and appreciable risk to children and a reasonable person would allow their child unsupervised contact with him.

Jurisdiction
Australia
Judgment Date
11 January 2019
Procedural Posture
Administrative Law Tribunal Review / Merits Review of Cancellation of Clearance
Outcome
Decision of Children's Guardian cancelling applicant's Working With Children Check clearance set aside; Respondent ordered to reinstate clearance.
Legal Topics
['working With Children Check' 'risk Assessment' 'administrative Review' 'child Abuse Allegations']
['administrative Law' 'child Protection' 'equal Opportunity'] ['working With Children Check' 'risk Assessment' 'administrative Review' 'child Abuse Allegations']

Case Brief

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Procedural Posture

Administrative Law Tribunal Review / Merits Review of Cancellation of Clearance

Legal Issues

  1. 1 ['Whether DHZ poses a real and appreciable risk to the safety of children warranting cancellation of his Working With Children Check clearance under the Child Protection (Working with Children) Act 2012 (NSW).']

Ratio Decidendi

The Tribunal found that while the applicant, as a teenager, engaged in serious inappropriate sexualised conduct towards his younger brother (including some acts of penetration with objects, but not proven to have included penile penetration), these events occurred over 27 years ago when he was himself an adolescent. There was no similar conduct since, no criminal record, and expert evidence concluded no present risk, with supporting lay evidence. The Tribunal was satisfied, in considering all section 30 factors, that the applicant does not pose a real and appreciable risk to children and a reasonable person would allow their child unsupervised contact with him.

Court Disposition

Decision of Children's Guardian cancelling applicant's Working With Children Check clearance set aside; Respondent ordered to reinstate clearance.

Orders

  • ["The decision of the Children's Guardian dated 22 March 2018 cancelling the applicant's working with children check clearance is set aside." "The Children's Guardian shall forthwith reinstate a Working with Children Check Clearance to the applicant known in these proceedings as DHZ."]