DOS v Children’s Guardian [2019] NSWCATAD 231

DOS v Children’s Guardian [2019] NSWCATAD 231

The presiding Senior Member found, considering the evidence cumulatively, that the applicant's repeated history of boundary-related conduct with students, social media contact despite prior warnings, conceded conduct causing harm to children, relapses after interventions, and expert evidence identifying continuing need for treatment meant that he currently posed a real and appreciable risk to the safety and well-being of children. Because the Tribunal was equally divided and s 57(3)(a) of the Civil and Administrative Tribunal Act 2013 made the presiding member's opinion prevail, the correct and preferable decision was to affirm the respondent's cancellation of the applicant's Working With...

Jurisdiction
Australia
Judgment Date
07 November 2019
Procedural Posture
Administrative Review of Decision Cancelling Working With Children Check Clearance / Decision After Hearing
Outcome
Decision affirmed; application dismissed.
Legal Topics
['working With Children Check Clearance' 'risk to Safety of Children' 'child Related Work' 'reportable Conduct' 'sexual Misconduct Findings in Workplace Investigation' 'teacher Student Boundaries' 'social Media Contact With Students' 'merits Review']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk to Safety of Children' 'child Related Work' 'reportable Conduct' 'sexual Misconduct Findings in Workplace Investigation' 'teacher Student Boundaries' 'social Media Contact With Students' 'merits Review']

Case Brief

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Procedural Posture

Administrative Review of Decision Cancelling Working With Children Check Clearance / Decision After Hearing

Legal Issues

  1. 1 ['Whether the applicant currently posed a real and appreciable risk to the safety and well-being of children.' "What findings, if any, should be made about allegations concerning the applicant's conduct towards students." 'Whether the cumulative pattern of allegations and conceded conduct showed an inability to maintain appropriate boundaries with children.' "Whether the applicant's counselling, expert evidence, references and claimed insight sufficiently mitigated any current or future risk." 'Whether the Tribunal needed to consider s 30(1A) of the Child Protection (Working with Children) Act 2012 if the applicant was found to pose a risk to children.']

Ratio Decidendi

The presiding Senior Member found, considering the evidence cumulatively, that the applicant's repeated history of boundary-related conduct with students, social media contact despite prior warnings, conceded conduct causing harm to children, relapses after interventions, and expert evidence identifying continuing need for treatment meant that he currently posed a real and appreciable risk to the safety and well-being of children. Because the Tribunal was equally divided and s 57(3)(a) of the Civil and Administrative Tribunal Act 2013 made the presiding member's opinion prevail, the correct and preferable decision was to affirm the respondent's cancellation of the applicant's Working With...

Court Disposition

Decision affirmed; application dismissed.

Orders

  • ["The decision of the respondent dated 16 August 2018 to cancel the applicant's Working With Children Check Clearance is affirmed." 'The application is dismissed.']