DVM v Children’s Guardian [2020] NSWCATAD 323

DVM v Children’s Guardian [2020] NSWCATAD 323

The applicant did not pose a real and appreciable risk to the safety of children because the Tribunal accepted there was no sexual intent behind his physical contact with students, any touching of students' bottoms was accidental rather than intentional, he had gained insight into changed standards and the need to minimise physical contact, his mild Autism Spectrum Disorder did not prevent him from caring appropriately for children, and he would intervene where required to keep children safe. The Tribunal was also satisfied that a reasonable person would allow direct unsupervised contact with the applicant while engaged in child-related work and that granting the clearance was in the...

Jurisdiction
Australia
Judgment Date
22 December 2020
Procedural Posture
Administrative Review of Refusal of Working With Children Check Clearance / Final Decision
Outcome
The respondent's decision to refuse the applicant's working with children check clearance was set aside and the applicant was granted a working with children check clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'indecent Assault Allegations' 'autism Spectrum Disorder' 'public Interest']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'indecent Assault Allegations' 'autism Spectrum Disorder' 'public Interest']

Case Brief

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Procedural Posture

Administrative Review of Refusal of Working With Children Check Clearance / Final Decision

Legal Issues

  1. 1 ['Whether the applicant poses a real and appreciable risk to the safety of children.' 'Whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children.' 'Whether it is in the public interest to grant the applicant a working with children check clearance.']

Ratio Decidendi

The applicant did not pose a real and appreciable risk to the safety of children because the Tribunal accepted there was no sexual intent behind his physical contact with students, any touching of students' bottoms was accidental rather than intentional, he had gained insight into changed standards and the need to minimise physical contact, his mild Autism Spectrum Disorder did not prevent him from caring appropriately for children, and he would intervene where required to keep children safe. The Tribunal was also satisfied that a reasonable person would allow direct unsupervised contact with the applicant while engaged in child-related work and that granting the clearance was in the...

Court Disposition

The respondent's decision to refuse the applicant's working with children check clearance was set aside and the applicant was granted a working with children check clearance.

Orders

  • ["The decision of the respondent dated 3 April 2019 to refuse the applicant's working with children check clearance is set aside." 'In substitution for this decision, the following decision is made: the applicant is to be granted a working with children check clearance.']