DJP v Children’s Guardian [2018] NSWCATAD 255

DJP v Children’s Guardian [2018] NSWCATAD 255

The Tribunal found that, although the 1995 indecent assault was serious, it occurred 23 years earlier, involved an adult victim, there had been no further allegations or complaints involving children, DJP expressed genuine remorse, had abstained from alcohol, addressed his mental health, maintained stable family relationships, and had positively contributed as a football coach. Accepting the psychologist's evidence that he did not present as a risk of harm to children, the Tribunal held that DJP discharged the onus of proving he did not pose a real and appreciable risk to the safety of children, and that both the reasonable person and public interest tests were satisfied.

Jurisdiction
Australia
Judgment Date
02 November 2018
Procedural Posture
Application for an Enabling Order to Obtain a Working With Children Check Clearance / Decision After Hearing
Outcome
Application granted; enabling order made and Working with Children Check clearance ordered to be granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'indecent Assault']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'indecent Assault']

Case Brief

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Procedural Posture

Application for an Enabling Order to Obtain a Working With Children Check Clearance / Decision After Hearing

Legal Issues

  1. 1 ['Whether DJP should be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 despite a conviction for committing an indecent assault.' 'Whether DJP discharged the onus under s 28(7) of the Child Protection (Working with Children) Act 2012 that he does not pose a risk to the safety of children.' 'Whether the reasonable person and public interest tests in s 30(1A) of the Child Protection (Working with Children) Act 2012 were satisfied.']

Ratio Decidendi

The Tribunal found that, although the 1995 indecent assault was serious, it occurred 23 years earlier, involved an adult victim, there had been no further allegations or complaints involving children, DJP expressed genuine remorse, had abstained from alcohol, addressed his mental health, maintained stable family relationships, and had positively contributed as a football coach. Accepting the psychologist's evidence that he did not present as a risk of harm to children, the Tribunal held that DJP discharged the onus of proving he did not pose a real and appreciable risk to the safety of children, and that both the reasonable person and public interest tests were satisfied.

Court Disposition

Application granted; enabling order made and Working with Children Check clearance ordered to be granted.

Orders

  • ['The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 with respect to the offence of committing an indecent assault.' "The Children's Guardian is to grant the applicant a Working with Children Check clearance."]