DPH v Children’s Guardian [2019] NSWCATAD 202

DPH v Children’s Guardian [2019] NSWCATAD 202

The applicant rebutted the statutory presumption that he posed a real and appreciable risk to the safety of children. The Tribunal accepted the convictions but was not satisfied that the underlying conduct involved masturbation, found the disqualifying offence less serious than alleged, accepted evidence of no offending since February 2017, reduced alcohol consumption, treatment for depression and anxiety, stable employment, refereeing without complaint, and Ms Howell's low-risk assessment. On that basis, a reasonable person would allow direct unsupervised contact while the applicant was engaged in child-related work and it was in the public interest to make the enabling order.

Jurisdiction
Australia
Judgment Date
27 September 2019
Procedural Posture
Application for an Enabling Order to Obtain a Working With Children Check Clearance / Final Decision and Orders
Outcome
Enabling order granted; the Children's Guardian is to grant the applicant a working with children check clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'act of Indecency' 'risk to Safety of Children' 'public Interest' 'referees and Child Related Work']
['child Protection' 'administrative Law'] ['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'act of Indecency' 'risk to Safety of Children' 'public Interest' 'referees and Child Related Work']

Case Brief

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Procedural Posture

Application for an Enabling Order to Obtain a Working With Children Check Clearance / Final Decision and Orders

Legal Issues

  1. 1 ['Whether the applicant had rebutted the statutory presumption that he posed a real and appreciable risk to the safety of children.' "Whether the applicant's disqualifying offence involved masturbation as part of the underlying conduct." 'Whether a reasonable person would allow the applicant to have direct, unsupervised contact with their child while engaged in child-related work.' 'Whether it was in the public interest to grant the applicant a working with children check clearance.' 'Whether a sporting referee whose work does not ordinarily involve contact with children for extended periods without other adults being present requires a working with children check clearance.']

Ratio Decidendi

The applicant rebutted the statutory presumption that he posed a real and appreciable risk to the safety of children. The Tribunal accepted the convictions but was not satisfied that the underlying conduct involved masturbation, found the disqualifying offence less serious than alleged, accepted evidence of no offending since February 2017, reduced alcohol consumption, treatment for depression and anxiety, stable employment, refereeing without complaint, and Ms Howell's low-risk assessment. On that basis, a reasonable person would allow direct unsupervised contact while the applicant was engaged in child-related work and it was in the public interest to make the enabling order.

Court Disposition

Enabling order granted; the Children's Guardian is to grant the applicant 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 in respect of his 2012 conviction on three counts of committing an act of indecency.' "Pursuant to subsection 28(6) of the Child Protection (Working with...