DMK v Children’s Guardian [2018] NSWCATAD 236

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DMK v Children's Guardian [2018] NSWCATAD 236 Hearing dates: 19 September 2018 Date of orders: 10 October 2018 Decision date: 10 October 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member E Hayes, General Member Decision: (1) Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61L. (2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance. Catchwords: ADMINISTRATIVE LAW – Working with children – Application for enabling order – Where applicant indecently assaulted an adult 16 years ago – Where applicant charged with other assault and indecency offences 14 years ago before charges were withdrawn – Where workplace investigation found allegations sustained – Whether 2018 Amendments applied - Whether evidence of charges and alleged assault should be admitted and, if so, what weight should be attributed to it – Whether applicant poses a real and substantial risk to the safety of children - Where applicant had expressed genuine remorse for the indecent assault – Where applicant had become a community leader in a stable marriage Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children's Guardian [2014] NSWCATAD 161 BKE v Office of the Children's Guardian [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BRL [2016] NSWSC 1206 CFJ v Children's Guardian [2016] NSWCATAD 62 CJT v Office of the Children's Guardian [2016] NSWSC 738 Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: DMK (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent)