FGM v Children’s Guardian [2022] NSWCATAD 403

FGM v Children’s Guardian [2022] NSWCATAD 403

The Tribunal preferred the contemporaneous police and DCJ material over the applicant's inconsistent accounts, found on the balance of probabilities that the trigger conduct was likely to have occurred, and concluded that the applicant lacked adequate insight into his use of corporal punishment and child protection risks. Having regard to the mandatory factors in s 30(1), the Tribunal was satisfied that the applicant poses a real and appreciable risk to the safety of children, so the refusal of a Working With Children Check Clearance was the correct and preferable decision.

Jurisdiction
Australia
Judgment Date
20 December 2022
Procedural Posture
Administrative Review of Refusal of Working With Children Check Clearance / Final Decision After Hearing
Outcome
The Tribunal affirmed the decision under review and dismissed the application for administrative review.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'child Related Work' 'public Interest' 'reasonable Person Test' 'non Disclosure Order']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'child Related Work' 'public Interest' 'reasonable Person Test' 'non Disclosure Order']

Case Brief

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Procedural Posture

Administrative Review of Refusal of Working With Children Check Clearance / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the applicant poses a risk to the safety of children for the purposes of the Child Protection (Working with Children) Act 2012.' "Whether the Tribunal should affirm, vary or set aside the Children's Guardian's refusal of a Working With Children Check Clearance." 'Whether a reasonable person would allow his or her child to have unsupervised direct contact with the applicant while engaged in child-related work.' 'Whether it is in the public interest to make an order enabling the applicant to work with children.']

Ratio Decidendi

The Tribunal preferred the contemporaneous police and DCJ material over the applicant's inconsistent accounts, found on the balance of probabilities that the trigger conduct was likely to have occurred, and concluded that the applicant lacked adequate insight into his use of corporal punishment and child protection risks. Having regard to the mandatory factors in s 30(1), the Tribunal was satisfied that the applicant poses a real and appreciable risk to the safety of children, so the refusal of a Working With Children Check Clearance was the correct and preferable decision.

Court Disposition

The Tribunal affirmed the decision under review and dismissed the application for administrative review.

Orders

  • ['Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.' "The decision of the...