DMM v Children’s Guardian [2018] NSWCATAD 288

DMM v Children’s Guardian [2018] NSWCATAD 288

The applicant rebutted the presumption that he posed a risk to the safety of children because the disqualifying offence occurred approximately 46 years earlier, the offending was at the lower end of seriousness for disqualifying offences, he was immature at the time, he had shown genuine remorse, had lived a pro-social life without relevant further offending or workplace complaints, and the likelihood of repetition was very low. The Tribunal was satisfied there was no real and appreciable risk of harm to children, that a reasonable person would allow unsupervised direct contact with children, and that granting the enabling order was in the public interest.

Jurisdiction
Australia
Judgment Date
13 November 2018
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Decision on the Papers
Outcome
Application granted; enabling order made and Working with Children Check clearance to be granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'historic Carnal Knowledge Conviction' 'assessment of Risk to Safety of Children' 'enabling Order']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'historic Carnal Knowledge Conviction' 'assessment of Risk to Safety of Children' 'enabling Order']

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Decision on the Papers

Legal Issues

  1. 1 ['Whether the applicant should be declared not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the applicant rebutted the statutory presumption that he poses a risk to the safety of children.' 'Whether a reasonable person would allow his or her children to have direct unsupervised contact with the applicant and whether granting an enabling order was in the public interest.']

Ratio Decidendi

The applicant rebutted the presumption that he posed a risk to the safety of children because the disqualifying offence occurred approximately 46 years earlier, the offending was at the lower end of seriousness for disqualifying offences, he was immature at the time, he had shown genuine remorse, had lived a pro-social life without relevant further offending or workplace complaints, and the likelihood of repetition was very low. The Tribunal was satisfied there was no real and appreciable risk of harm to children, that a reasonable person would allow unsupervised direct contact with children, and that granting the enabling order was in the public interest.

Court Disposition

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

Orders

  • ['The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).' "Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children's Guardian is to grant the applicant a...