DVM v Children’s Guardian [2020] NSWCATAD 323

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DVM v Children's Guardian [2020] NSWCATAD 323 Hearing dates: 3, 12, 13 August and 12 October 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member S Davison, General Member Decision: 1. The decision of the respondent dated 3 April 2019 to refuse the applicant's working with children check clearance is set aside.. 2. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance. Catchwords: CHILD protection – Working with children –Indecent assault allegations – No sexual intent to physical contact with children - Acquittal at trial – Costs order in favour of applicant following criminal trial – Civil suit for malicious prosecution, wrongful arrest, false imprisonment settled in applicant's favour – Relevance of Autism Spectrum Disorder to risk to safety of children – Neutral position adopted by Children's Guardian. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Cases Cited: CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BRL [2016] NSWSC 1206 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255; Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Texts Cited: Responding to Allegations against Employees in the Area of Child Protection NSW Department of Education and Training PD/2004/0008 Implemented 10 June 2010 Category: Principal judgment Parties: DVM (Applicant) Children's Guardian (Respondent) Representation: Counsel: P Lowson (Respondent)