DSJ v Children’s Guardian [2019] NSWCATAD 168

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DSJ v Children's Guardian [2019] NSWCATAD 168 Hearing dates: 5 June 2019 Date of orders: 19 August 2019 Decision date: 19 August 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: C A Mulvey, Senior Member R Royer, General Member Decision: 1. It is declared DSJ is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children ) Act 2012 (NSW) for the offence of an assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) entered on 21 June 1990 at the Parramatta Local Court.

2. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 February 2019 is granted.

3. The Children's Guardian is to grant a working with children check clearance to DSJ pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW). Catchwords: ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable –assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Pre-trial Diversion of Offenders Act 1985 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Office of the Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children's Guardian [2013] NSWADT 310 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children's Guardian [2016] NSWSC 738 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 M v M [1988] HCA 68; 166 CLR 69 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: DSJ (Applicant) Children's Guardian (Respondent) Representation: Counsel: Mr Guterres (Respondent)