ERV v Children’s Guardian [2021] NSWCATAD 332

ERV v Children’s Guardian [2021] NSWCATAD 332

The applicant rebutted the statutory presumption that he posed a risk to the safety of children. Although the indecent assault was serious, it was at the lower end of seriousness for such an offence, the victim was not a child, there was no evidence of similar conduct before or since, the applicant had shown remorse and taken steps including psychological treatment, had stable employment and family support, and uncontradicted psychological evidence assessed him as at low risk of reoffending. On that basis the Tribunal was satisfied that he did not pose a real and appreciable risk to children, that a reasonable person would allow direct unsupervised contact with their child while he was...

Jurisdiction
Australia
Judgment Date
17 November 2021
Procedural Posture
Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) Following Refusal of a Working With Children Check Clearance / Determined on the Papers by Consent
Outcome
Application granted; enabling order made and working with children check clearance to be granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'enabling Order' 'risk to Safety of Children']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'enabling Order' 'risk to Safety of Children']

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) Following Refusal of a Working With Children Check Clearance / Determined on the Papers by Consent

Legal Issues

  1. 1 ['Whether the applicant had discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children because of a conviction for a disqualifying offence.' 'Whether a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised while the applicant was engaged in child-related work.' 'Whether it was in the public interest to make an order enabling the applicant to work with children.']

Ratio Decidendi

The applicant rebutted the statutory presumption that he posed a risk to the safety of children. Although the indecent assault was serious, it was at the lower end of seriousness for such an offence, the victim was not a child, there was no evidence of similar conduct before or since, the applicant had shown remorse and taken steps including psychological treatment, had stable employment and family support, and uncontradicted psychological evidence assessed him as at low risk of reoffending. On that basis the Tribunal was satisfied that he did not pose a real and appreciable risk to children, that a reasonable person would allow direct unsupervised contact with their child while he was...

Court Disposition

Application granted; enabling order made and working with children check clearance to be granted.

Orders

  • ['The applicant is not to be treated as a disqualified person for the offence, in respect of s 56(1) of the Criminal Law Consolidation Act 1913 (South Australia) for which he was convicted on 4 May 2020.' "The Children's Guardian is to grant the applicant with a working with children check clearance within 28 days...