EMS v Children’s Guardian [2022] NSWCATAD 15

EMS v Children’s Guardian [2022] NSWCATAD 15

On the totality of the evidence, including the applicant's current circumstances, lack of relevant convictions or adverse findings in recent years, evidence of rehabilitation, and positive expert evidence, the Tribunal was not satisfied that EMS posed a real and appreciable risk to the safety of children, and therefore set aside the respondent's decision and directed that a clearance be granted.

Parties
Applicant: EMS; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
14 January 2022
Procedural Posture
Administrative Review / Final Decision
Outcome
Decision of respondent set aside; clearance to be granted
Legal Topics
Working With Children Check, Risk Assessment, Administrative Review, Child Safety, Sexual Assault Allegations, Criminal History and Risk, Public Interest, Reasonable Person Test
Administrative Law Child Protection Working With Children Check Risk Assessment Administrative Review Child Safety Sexual Assault Allegations Criminal History and Risk +2 more

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Parties

EMS

Applicant

Children's Guardian

Respondent

Procedural Posture

Administrative Review / Final Decision

Legal Issues

  1. 1 Whether EMS poses a real and appreciable risk to the safety and well-being of children
  2. 2 Whether the refusal of a Working With Children Check Clearance should be set aside and a clearance granted

Ratio Decidendi

On the totality of the evidence, including the applicant's current circumstances, lack of relevant convictions or adverse findings in recent years, evidence of rehabilitation, and positive expert evidence, the Tribunal was not satisfied that EMS posed a real and appreciable risk to the safety of children, and therefore set aside the respondent's decision and directed that a clearance be granted.

Court Disposition

Decision of respondent set aside; clearance to be granted

Orders

  • Time for the applicant to lodge his application for Administrative Review is extended to 5:00pm 20 November 2020 pursuant s 41 of the Civil and Administrative Tribunal Act 2013.
  • The decision of the respondent dated 14 April 2020 to refuse the applicant's Working With Children Check Clearance is set aside.