Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

1. On 12 July 2024 the applicant was issued with a notice of a final decision refusing a working with children check (WWCC clearance) under s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (Act) on the basis of her conduct as a foster parent to two children from 2015 to 2021. The applicant had an interim bar placed on her WWCC clearance since 23 July 2021.

2. The respondent found through its investigation that the applicant was unable to manage the children's serious risk talking behaviours which resulted in physical and psychological harm and the children were removed in 2021.

3. The applicant claimed that while she and her husband provided a safe and loving home for the two children, there were a number of risky behaviours that stemmed from the behavioural disability of the older child (Child A) towards himself and the younger child (Child B). The applicant admitted that she made mistakes while the children were in her care and in regard to interactions with the foster organisation. She sought a WWCC clearance so that she can work with children in an educational role as well as volunteering in her church and participating in her child's school activities.

4. On 6 August 2024 the applicant applied pursuant to section 27(1) of the Civil and Administrative Tribunal Act 2013 (NSW) for administrative review of the decision by the Children's Guardian to refuse to grant the Clearance.

5. For the reasons that follow, we are not satisfied that the applicant poses a risk to the safety of children.

Legislative Scheme

6. The object of the Act, set out in s 3 is to protect children. Section 4 of the Act states that 'the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration'.

7. While the protection of children is the paramount consideration in the operation of the Act, the other key considerations flowing from the operation of the Act are the rights of persons to work and participate in community and society.

8. The Act sets out a scheme to protect children by requiring persons who engage in child-related work to obtain a WWCC clearance.

9. Section 15(2) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, to determine whether the applicant poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant is subject to an assessment requirement.

10. Risk to the safety of children is defined in s 5B of the Act to be 'a real and appreciable risk to the safety of children'. In determining whether there is a risk to the safety of children, the Tribunal must consider the matters set out in s 30(1)(a) to (k) and s 30 (1A)(a) and (b) of the Act.

11. Section 63 of the Administrative Decisions Review Act 1997 provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197aa044aa7ed8e9beba96ed)

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