ERC v Office of the Children’s Guardian [2022] NSWCATAD 53

ERC v Office of the Children’s Guardian [2022] NSWCATAD 53

The Tribunal accepted the Local Court Magistrate's findings as particularly persuasive, found on the balance of probabilities that the alleged 2020 assault did not occur, accepted the applicant as a reliable and truthful witness, and treated the 2018 incident as denied and unsubstantiated. Having considered the s 30 factors, including the dismissed charge, absence of criminal history or further conduct of concern, the applicant's references, and the non-adverse Wesley Dalmar final risk assessment, the Tribunal was satisfied that the applicant did not pose a real and appreciable risk to the safety of children, that a reasonable person would allow direct unsupervised contact with the...

Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Application for Administrative Review of a Decision to Cancel a Working With Children Check Clearance / Merits Review in the Administrative and Equal Opportunity Division Following Hearing
Outcome
The application succeeded; the cancellation decision was set aside and the Children's Guardian was directed to grant a Working with Children Check Clearance forthwith.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'cancellation of Clearance' 'common Assault Charge Dismissed' 'reasonable Person Test' 'public Interest']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'cancellation of Clearance' 'common Assault Charge Dismissed' 'reasonable Person Test' 'public Interest']

Case Brief

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Procedural Posture

Application for Administrative Review of a Decision to Cancel a Working With Children Check Clearance / Merits Review in the Administrative and Equal Opportunity Division Following Hearing

Legal Issues

  1. 1 ['Whether the applicant poses a real and appreciable risk to the safety of children.' 'If the applicant does not pose such a risk, whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children while engaged in child-related work.' 'Whether it is in the public interest to grant the applicant a Working with Children Check Clearance.']

Ratio Decidendi

The Tribunal accepted the Local Court Magistrate's findings as particularly persuasive, found on the balance of probabilities that the alleged 2020 assault did not occur, accepted the applicant as a reliable and truthful witness, and treated the 2018 incident as denied and unsubstantiated. Having considered the s 30 factors, including the dismissed charge, absence of criminal history or further conduct of concern, the applicant's references, and the non-adverse Wesley Dalmar final risk assessment, the Tribunal was satisfied that the applicant did not pose a real and appreciable risk to the safety of children, that a reasonable person would allow direct unsupervised contact with the...

Court Disposition

The application succeeded; the cancellation decision was set aside and the Children's Guardian was directed to grant a Working with Children Check Clearance forthwith.

Orders

  • ["The decision of the Children's Guardian made on 29 April 2021 to cancel a Working with Children Clearance is set aside." "The Children's Guardian is to grant ERC a Working with Children Check Clearance forthwith."]