FHK v Children’s Guardian [2022] NSWCATAD 376

FHK v Children’s Guardian [2022] NSWCATAD 376

The correct and preferable decision was to set aside the refusal and grant the clearance because the Tribunal did not admit the police transcripts as evidence of the truth of TC's allegations, found it would be procedurally unfair to give weight to those untested allegations when TC had not been shown to be unavailable for cross-examination, and accepted the applicant's sworn and tested evidence. After considering the statutory factors, the absence of criminal history or other allegations, the applicant's teaching record and references, and Dr Lennings' evidence of low risk, the Tribunal was satisfied on the balance of probabilities that the alleged conduct did not occur, that the...

Jurisdiction
Australia
Judgment Date
22 November 2022
Procedural Posture
Administrative Review of Refusal of Working With Children Check Clearance / Final Decision
Outcome
The decision of the Children's Guardian to refuse the applicant's Working with Children Check Clearance was set aside and the Children's Guardian was directed to grant the clearance.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'procedural Fairness' 'hearsay Evidence' 'public Interest']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk Assessment' 'procedural Fairness' 'hearsay Evidence' 'public Interest']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant poses a real and appreciable risk to the safety of children for the purposes of the Child Protection (Working with Children) Act 2012.' 'Whether the allegations made by TC to police should be admitted or given weight as evidence of the truth of the allegations when TC was not made available for cross-examination.' 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while the applicant was 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 correct and preferable decision was to set aside the refusal and grant the clearance because the Tribunal did not admit the police transcripts as evidence of the truth of TC's allegations, found it would be procedurally unfair to give weight to those untested allegations when TC had not been shown to be unavailable for cross-examination, and accepted the applicant's sworn and tested evidence. After considering the statutory factors, the absence of criminal history or other allegations, the applicant's teaching record and references, and Dr Lennings' evidence of low risk, the Tribunal was satisfied on the balance of probabilities that the alleged conduct did not occur, that the...

Court Disposition

The decision of the Children's Guardian to refuse the applicant's Working with Children Check Clearance was set aside and the Children's Guardian was directed to grant the clearance.

Orders

  • ["The decision of the Children's Guardian on 7 February 2022 to refuse the Applicant's Working with Children Check Clearance is set aside." "The Children's Guardian is to grant a Working with Children Check Clearance to the applicant."]