DNQ v Children's Guardian [2018] NSWCATAD 188

DNQ v Children's Guardian [2018] NSWCATAD 188

The stay was refused because, on the evidence available at the interim stage, the applicant had not discharged the onus imposed by section 28(7) to prove that he did not pose a real and appreciable risk to the safety of children. Although the 1994 disqualifying offence was old and the applicant had been offence-free since, there was limited evidence about the offence, his insight and the statutory risk factors. The protective purpose of the Act, the paramount consideration of child safety, the inability to impose conditions, the lack of evidence of irreparable harm, and the public interest weighed against allowing him to work with children pending the final hearing.

Jurisdiction
Australia
Judgment Date
20 August 2018
Procedural Posture
Application for a Stay or Interim Order in Proceedings Seeking an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Interim Stay Application
Outcome
The application for a stay or interim order was refused and dismissed, and a publication restriction was made.
Legal Topics
['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'indecent Assault Conviction' 'risk to the Safety of Children' 'stay Pending Determination' 'publication Restriction']
['administrative Law' 'child Protection' 'working With Children Checks'] ['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'indecent Assault Conviction' 'risk to the Safety of Children' 'stay Pending Determination' 'publication Restriction']

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Procedural Posture

Application for a Stay or Interim Order in Proceedings Seeking an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Interim Stay Application

Legal Issues

  1. 1 ["Whether the Tribunal should stay the Children's Guardian's determination refusing a Working with Children Check Clearance pending determination of the application for an enabling order." 'Whether, on the present evidence, the applicant had rebutted the statutory presumption that he poses a risk to the safety of children.' 'Whether a stay would be in the public interest and in the interests of justice.' 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while engaged in child-related work.']

Ratio Decidendi

The stay was refused because, on the evidence available at the interim stage, the applicant had not discharged the onus imposed by section 28(7) to prove that he did not pose a real and appreciable risk to the safety of children. Although the 1994 disqualifying offence was old and the applicant had been offence-free since, there was limited evidence about the offence, his insight and the statutory risk factors. The protective purpose of the Act, the paramount consideration of child safety, the inability to impose conditions, the lack of evidence of irreparable harm, and the public interest weighed against allowing him to work with children pending the final hearing.

Court Disposition

The application for a stay or interim order was refused and dismissed, and a publication restriction was made.

Orders

  • ['The application for a stay or interim order filed 8 August 2018 is refused and dismissed.' 'With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these...