DYN v Children's Guardian [2019] NSWCATAD 271

DYN v Children's Guardian [2019] NSWCATAD 271

The applicant rebutted the statutory presumption that he poses a risk to the safety of children. Although the disqualifying offence was objectively serious, it involved an adult victim, occurred in 1990, resulted in a fine suggesting lower-range seriousness, and the applicant had no prior criminal history and had not reoffended or been charged since. The Tribunal accepted the applicant as truthful, found he had insight into engaging in inappropriate intimate behaviour, gave weight to his child protection training and his Victorian working with children clearance, and was satisfied there was a very low likelihood of repetition. The Tribunal was also satisfied that a reasonable person with...

Jurisdiction
Australia
Judgment Date
24 December 2019
Procedural Posture
Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) / Final Hearing; Principal Judgment
Outcome
Application granted; enabling order made and respondent ordered to grant the applicant a working with children check clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'indecent Assault Involving an Adult']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'indecent Assault Involving an Adult']

Case Brief

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Procedural Posture

Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) / Final Hearing; Principal Judgment

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) in respect of the offence of indecent assault under s 39(1) of the Crimes Act 1958 (Vic).' 'Whether the applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children.' 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while the applicant was engaged in child-related work.' 'Whether it was in the public interest to make the orders sought by the applicant.']

Ratio Decidendi

The applicant rebutted the statutory presumption that he poses a risk to the safety of children. Although the disqualifying offence was objectively serious, it involved an adult victim, occurred in 1990, resulted in a fine suggesting lower-range seriousness, and the applicant had no prior criminal history and had not reoffended or been charged since. The Tribunal accepted the applicant as truthful, found he had insight into engaging in inappropriate intimate behaviour, gave weight to his child protection training and his Victorian working with children clearance, and was satisfied there was a very low likelihood of repetition. The Tribunal was also satisfied that a reasonable person with...

Court Disposition

Application granted; enabling order made and respondent ordered to grant the applicant a working with children check clearance.

Orders

  • ['An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of indecent assault under s 39(1) of the Crimes Act 1958 (Vic).' 'An order pursuant to s...