DVR v Children’s Guardian [2023] NSWCATAD 240

DVR v Children’s Guardian [2023] NSWCATAD 240

The Tribunal affirmed the refusal of a working with children check clearance because, after considering all of the evidence and the s 30 factors, it was satisfied that the applicant posed a real and appreciable risk to the safety of children. The core reason was the Tribunal's finding that there was a significant possibility that the applicant sexually assaulted his stepdaughter on multiple occasions and engaged in sexual conduct with a teenage girl while in positions of authority and power. The applicant's conduct concerning the teenage girl also placed her safety at risk even if her sexual allegations were not true. Expert evidence that the applicant did not have a disorder of abnormal...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Administrative Review of Refusal of Working With Children Check Clearance / Redetermination on Remittal From the Supreme Court; Principal Judgment
Outcome
The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance was affirmed.
Legal Topics
['working With Children Check Clearance' 'risk to the Safety of Children' 'sexual Conduct Allegations Involving Children' 'merits Review' 'non Publication Orders' 'fact Finding on Remittal']
['child Protection' 'administrative Law' 'civil and Administrative Tribunal Procedure'] ['working With Children Check Clearance' 'risk to the Safety of Children' 'sexual Conduct Allegations Involving Children' 'merits Review' 'non Publication Orders' 'fact Finding on Remittal']

Case Brief

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Procedural Posture

Administrative Review of Refusal of Working With Children Check Clearance / Redetermination on Remittal From the Supreme Court; Principal Judgment

Legal Issues

  1. 1 ['Whether the applicant poses a real and appreciable risk to the safety of children for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether there is a significant possibility that the applicant sexually assaulted his stepdaughter and engaged in sexual conduct with a teenage girl.' 'What weight should be given to allegations where a complainant was not made available for cross examination.' 'Whether the Tribunal should adopt factual findings made by the differently constituted Tribunal before remittal.' 'Whether non-publication orders should be vacated and replaced.']

Ratio Decidendi

The Tribunal affirmed the refusal of a working with children check clearance because, after considering all of the evidence and the s 30 factors, it was satisfied that the applicant posed a real and appreciable risk to the safety of children. The core reason was the Tribunal's finding that there was a significant possibility that the applicant sexually assaulted his stepdaughter on multiple occasions and engaged in sexual conduct with a teenage girl while in positions of authority and power. The applicant's conduct concerning the teenage girl also placed her safety at risk even if her sexual allegations were not true. Expert evidence that the applicant did not have a disorder of abnormal...

Court Disposition

The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance was affirmed.

Orders

  • ['The non-publication orders made on 6 June 2019 and 30 August 2022 are vacated.' 'The disclosure, by way of publication or broadcast, of the name of the applicant, any family member or former family member of the applicant, or any associate of the applicant, any child referred to in the evidence, and any victim or...