EOL v Children’s Guardian [2021] NSWCATAD 146

EOL v Children’s Guardian [2021] NSWCATAD 146

Although the applicant's offences were serious and harmful, they were at the lower end of seriousness for disqualifying offences, the victims were not children, there was no prior criminal history or subsequent conduct of concern, the applicant showed remorse, and the offending was spontaneous in an alcohol-fuelled environment. The Tribunal was satisfied on the balance of probabilities that there was no real and appreciable risk of harm to children, that the applicant rebutted the statutory presumption of risk, that a reasonable person would allow direct unsupervised contact in child-related work, and that granting an enabling order was in the public interest.

Jurisdiction
Australia
Judgment Date
02 June 2021
Procedural Posture
Application for Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of Working With Children Check Clearance / Final Decision After Hearing
Outcome
Application granted; enabling order made and Children's Guardian directed to grant a Working with Children Check Clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'sexually Touching Another Without Consent Conviction']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'sexually Touching Another Without Consent Conviction']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant rebutted the statutory presumption under subsection 28(7) of the Child Protection (Working with Children) Act 2012 (NSW) that he poses a risk to the safety of children.' 'Whether the Tribunal should make an enabling order declaring 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).' 'Whether the tests in section 30(1A) of the Child Protection (Working with Children) Act 2012 (NSW) were satisfied.']

Ratio Decidendi

Although the applicant's offences were serious and harmful, they were at the lower end of seriousness for disqualifying offences, the victims were not children, there was no prior criminal history or subsequent conduct of concern, the applicant showed remorse, and the offending was spontaneous in an alcohol-fuelled environment. The Tribunal was satisfied on the balance of probabilities that there was no real and appreciable risk of harm to children, that the applicant rebutted the statutory presumption of risk, that a reasonable person would allow direct unsupervised contact in child-related work, and that granting an enabling order was in the public interest.

Court Disposition

Application granted; enabling order made and Children's Guardian directed to grant a Working with Children Check Clearance.

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...