DMN v Children’s Guardian [2018] NSWCATAD 278

DMN v Children’s Guardian [2018] NSWCATAD 278

The applicant rebutted the statutory presumption that he posed a risk to the safety of children because the disqualifying offence occurred approximately 46 years earlier, was at the lower end of seriousness for such offences, the applicant was 18 and the victim was 15 years and 11 months, there was no evidence of lack of consent, the applicant had no further criminal charges, complaints or disciplinary matters, had worked and volunteered with children without complaint, was open and frank, and the Tribunal was satisfied that there was no real and appreciable risk of harm to children, that a reasonable person would allow unsupervised direct contact, and that granting the order was in the...

Jurisdiction
Australia
Judgment Date
08 October 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 the Children's Guardian directed to grant a Working with Children Check clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'assessment of Risk to Children' 'carnal Knowledge Conviction']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'assessment of Risk to Children' 'carnal Knowledge Conviction']

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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 contact with the applicant that is not directly supervised.' 'Whether it was in the public interest to grant an enabling order.']

Ratio Decidendi

The applicant rebutted the statutory presumption that he posed a risk to the safety of children because the disqualifying offence occurred approximately 46 years earlier, was at the lower end of seriousness for such offences, the applicant was 18 and the victim was 15 years and 11 months, there was no evidence of lack of consent, the applicant had no further criminal charges, complaints or disciplinary matters, had worked and volunteered with children without complaint, was open and frank, and the Tribunal was satisfied that there was no real and appreciable risk of harm to children, that a reasonable person would allow unsupervised direct contact, and that granting the order was in the...

Court Disposition

Application granted; enabling order made and the Children's Guardian directed to grant a Working with Children Check clearance.

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...