DVF v Children’s Guardian [2019] NSWCATAD 206

DVF v Children’s Guardian [2019] NSWCATAD 206

Although the applicant's disqualifying offences were serious, they were at the lower end of seriousness for disqualifying offences, a reasonable period had passed, the applicant had matured, undertaken psychological treatment, disclosed relevant matters openly, received positive evidence and references, and the victim gave evidence supporting the absence of concern about his conduct with children. The Tribunal was satisfied that the section 30(1A) reasonable person and public interest tests were met and that, on the balance of probabilities, the applicant did not pose a real and appreciable risk of harm to children. He therefore rebutted the statutory presumption and an enabling order was...

Jurisdiction
Australia
Judgment Date
18 September 2019
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of a Working With Children Check Clearance / Final Hearing and Orders
Outcome
Application granted; enabling order made and Working with Children Check clearance ordered to be granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'sexual Intercourse With a Child']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'sexual Intercourse With a Child']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of a Working With Children Check Clearance / Final Hearing and Orders

Legal Issues

  1. 1 ['Whether the applicant should be declared not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the applicant rebutted the statutory presumption that he poses a risk to the safety of children.' 'Whether the section 30(1A) reasonable person and public interest tests were satisfied.' "Whether the Children's Guardian should be required to grant the applicant a Working with Children Check clearance."]

Ratio Decidendi

Although the applicant's disqualifying offences were serious, they were at the lower end of seriousness for disqualifying offences, a reasonable period had passed, the applicant had matured, undertaken psychological treatment, disclosed relevant matters openly, received positive evidence and references, and the victim gave evidence supporting the absence of concern about his conduct with children. The Tribunal was satisfied that the section 30(1A) reasonable person and public interest tests were met and that, on the balance of probabilities, the applicant did not pose a real and appreciable risk of harm to children. He therefore rebutted the statutory presumption and an enabling order was...

Court Disposition

Application granted; enabling order made and Working with Children Check clearance ordered to be granted.

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 (NSW).' "Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children's Guardian is to grant the applicant a...