DTC v Children’s Guardian [2019] NSWCATAD 141

DTC v Children’s Guardian [2019] NSWCATAD 141

The Tribunal was satisfied, having regard to all the statutory factors, the seriousness and circumstances of the offence, the absence of prior and subsequent offending, the consistent expert evidence, and the applicant's insight, remorse and credible evidence, that the applicant discharged the onus of showing he does not pose a real and appreciable risk to the safety of children. Accordingly, the statutory presumption of risk was rebutted, and an enabling order was justified allowing a Working with Children clearance.

Parties
Applicant: DTC; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
23 July 2019
Procedural Posture
Administrative Application / Merits Review, Final Decision
Outcome
Application granted: Applicant not to be treated as disqualified person; Working with Children clearance to be granted.
Legal Topics
Working With Children Check Clearance, Risk Assessment, Enabling Order, Spent Conviction, Assessment of Risk
Administrative Law Child Protection Equal Opportunity Working With Children Check Clearance Risk Assessment Enabling Order Spent Conviction Assessment of Risk

Case Brief

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Parties

DTC

Applicant

Children's Guardian

Respondent

Procedural Posture

Administrative Application / Merits Review, Final Decision

Legal Issues

  1. 1 Whether the applicant should be treated as a 'disqualified person' under the Child Protection (Working with Children) Act 2012 in respect of an offence.
  2. 2 Whether the applicant poses a risk to the safety of children as required by s.28(7) of the Act.
  3. 3 Whether an enabling order should be made permitting a Working with Children clearance.

Ratio Decidendi

The Tribunal was satisfied, having regard to all the statutory factors, the seriousness and circumstances of the offence, the absence of prior and subsequent offending, the consistent expert evidence, and the applicant's insight, remorse and credible evidence, that the applicant discharged the onus of showing he does not pose a real and appreciable risk to the safety of children. Accordingly, the statutory presumption of risk was rebutted, and an enabling order was justified allowing a Working with Children clearance.

Court Disposition

Application granted: Applicant not to be treated as disqualified person; Working with Children clearance to be granted.

Orders

  • 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 the offence of unlawful and indecent assault in 2016 for which he received a fine and a spent conviction was granted.
  • Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the Children's Guardian is to grant the Applicant a Working with Children clearance.