DOP v Children’s Guardian [2019] NSWCATAD 23

DOP v Children’s Guardian [2019] NSWCATAD 23

Having considered the section 30(1) factors, the Tribunal found that the applicant's disqualifying offence was serious but at the lower end of the scale, that the likelihood of repetition was low in light of the expert evidence, absence of relevant further offending, passage of time, remorse, counselling, employment and family circumstances, and that the applicant had rebutted the presumption that he posed a risk to the safety of children. The Tribunal was also satisfied that a reasonable person acquainted with the relevant facts would allow unsupervised direct contact with the applicant while he was engaged in child-related work and that making the enabling order was in the public interest.

Jurisdiction
Australia
Judgment Date
06 February 2019
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Final Hearing and Determination
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 Safety of Children' 'child Related Work']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'child Related Work']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Final Hearing and Determination

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) in respect of the specified offence.' 'Whether the applicant rebutted the presumption under section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW) that he poses a risk to the safety of children.' 'Whether the Tribunal was satisfied under section 30(1A) of the Child Protection (Working with Children) Act 2012 (NSW) that a reasonable person would allow unsupervised direct contact with the applicant while engaged in child-related work and that making the order was in the public interest.']

Ratio Decidendi

Having considered the section 30(1) factors, the Tribunal found that the applicant's disqualifying offence was serious but at the lower end of the scale, that the likelihood of repetition was low in light of the expert evidence, absence of relevant further offending, passage of time, remorse, counselling, employment and family circumstances, and that the applicant had rebutted the presumption that he posed a risk to the safety of children. The Tribunal was also satisfied that a reasonable person acquainted with the relevant facts would allow unsupervised direct contact with the applicant while he was engaged in child-related work and that making the enabling order was in the public interest.

Court Disposition

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

Orders

  • ['It is declared the applicant is not a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) for the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s474.27A of the Criminal...