DSJ v Children’s Guardian [2019] NSWCATAD 168

DSJ v Children’s Guardian [2019] NSWCATAD 168

On all the evidence, including the extended period since the offence, lack of any similar offending, consistent psychological opinions of low risk, positive rehabilitative steps, and a neutral position by the Children's Guardian, the Tribunal found on the balance of probabilities that DSJ no longer poses a real and appreciable risk to the safety of children, has rebutted the presumption of risk under section 28(7), and that a reasonable person would permit their child to have unsupervised contact with DSJ in the relevant context; it is therefore appropriate and in the public interest to grant the enabling order and clearance.

Jurisdiction
Australia
Judgment Date
19 August 2019
Procedural Posture
Administrative Review / Hearing and Final Determination
Outcome
Application for enabling order granted; declaration made that DSJ is not a disqualified person; Children's Guardian to grant Working with Children Check clearance.
Legal Topics
['working With Children Check' 'disqualification Under Child Protection Legislation' 'risk Assessment for Child Safety' 'tribunal Review of Administrative Decisions']
['administrative Law' 'child Protection'] ['working With Children Check' 'disqualification Under Child Protection Legislation' 'risk Assessment for Child Safety' 'tribunal Review of Administrative Decisions']

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Procedural Posture

Administrative Review / Hearing and Final Determination

Legal Issues

  1. 1 ['Whether DSJ, with a disqualifying offence, poses a real and appreciable risk to the safety of children for the purpose of the Child Protection (Working with Children) Act 2012 (NSW)' 'Whether an enabling order should be granted under section 28 of the Act, declaring DSJ is not to be treated as a disqualified person' 'Whether a reasonable person would allow unsupervised contact with DSJ in child-related work and if granting a clearance is in the public interest']

Ratio Decidendi

On all the evidence, including the extended period since the offence, lack of any similar offending, consistent psychological opinions of low risk, positive rehabilitative steps, and a neutral position by the Children's Guardian, the Tribunal found on the balance of probabilities that DSJ no longer poses a real and appreciable risk to the safety of children, has rebutted the presumption of risk under section 28(7), and that a reasonable person would permit their child to have unsupervised contact with DSJ in the relevant context; it is therefore appropriate and in the public interest to grant the enabling order and clearance.

Court Disposition

Application for enabling order granted; declaration made that DSJ is not a disqualified person; Children's Guardian to grant Working with Children Check clearance.

Orders

  • ['It is declared DSJ is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) for the offence of assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) entered on 21 June 1990 at the Parramatta Local...