DQD v Children's Guardian [2019] NSWCATAD 84

DQD v Children's Guardian [2019] NSWCATAD 84

The applicant rebutted the presumption that he posed a risk to the safety of children. Although the offence was serious, it involved an adult woman, was at the lower end of seriousness among sexual offences, the applicant had no prior or subsequent criminal history, had insight into the harm caused, had taken steps to manage the depression and anxiety associated with the offending circumstances, no longer had a depressive illness, and unchallenged psychiatric evidence established a very low likelihood of repetition and no abnormal sexual interest or psychosexual disorder. The Tribunal was also satisfied that a reasonable person with knowledge of the evidence would allow direct...

Jurisdiction
Australia
Judgment Date
15 May 2019
Procedural Posture
Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) and for a Working With Children Check Clearance / Final Hearing and Decision
Outcome
Application allowed; enabling order made and respondent ordered to grant a Working With Children Check clearance.
Legal Topics
['enabling Order' 'disqualified Person' 'working With Children Check Clearance' 'risk to the Safety of Children' 'non Publication Order']
['administrative Law' 'child Protection' 'working With Children Checks'] ['enabling Order' 'disqualified Person' 'working With Children Check Clearance' 'risk to the Safety of Children' 'non Publication Order']

Case Brief

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Procedural Posture

Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) and for a Working With Children Check Clearance / Final Hearing and Decision

Legal Issues

  1. 1 ['Whether the applicant had rebutted the statutory presumption under s 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 should make an enabling order declaring that the applicant is not to be treated as a disqualified person in respect of the offence of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW)." 'Whether the Tribunal should order the respondent to grant the applicant a Working With Children Check clearance.' 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while engaged in child-related work and whether making the orders was in the public interest.']

Ratio Decidendi

The applicant rebutted the presumption that he posed a risk to the safety of children. Although the offence was serious, it involved an adult woman, was at the lower end of seriousness among sexual offences, the applicant had no prior or subsequent criminal history, had insight into the harm caused, had taken steps to manage the depression and anxiety associated with the offending circumstances, no longer had a depressive illness, and unchallenged psychiatric evidence established a very low likelihood of repetition and no abnormal sexual interest or psychosexual disorder. The Tribunal was also satisfied that a reasonable person with knowledge of the evidence would allow direct...

Court Disposition

Application allowed; enabling order made and respondent ordered to grant a Working With Children Check clearance.

Orders

  • ["An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW)." 'An order...