Tribunal affirm Children’s Guardian decision to refuse applicant’s Clearance

Date: Oct 02, 2018

When faced with contradicting statements, a court of law and the jury must assess all possibilities to ensure the correct judgement is made. But sometimes, this decision is hindered by the 'did they, didn't they' model.

This was demonstrated in a recent case bought before the NSW District Court.

What was the applicant seeking?

The applicant, who is 61 years old, sought a cancellation on his working with children check Clearance ordered by the Children's Guardian. This was so he could work as a hospital wards person, and re-apply to the Family and Community Services (FACS) to become an authorised household member and return to live with his partner and her 13-year old grandson. However, events leading up to August 2018 caused the court to question granting the Clearance.

Reviewing all evidence

In 2003, the applicant was charged with rape against his then partner under the Queensland Criminal Code. It was alleged he engaged in non-consensual intercourse when the victim was half asleep after taking painkillers. The incident was reported to police, and when interviewed by officers, the applicant admitted to having sexual intercourse but was of the belief that it was consensual. On 2 April 2004, a No True Bill was applied as there was not enough evidence to remand the applicant.

Late 2016, the applicant became known to the FACS after submitting his Clearance through the Children's Guardian. At this time, previous reports revealed that the applicant had sexually abused his daughter in 1999. However, it was later confirmed that the accusations were false and the daughter made the remarks through malice. At the time of his application, the applicant was providing care for his partner's foster child. After receiving the above reports, the partner was instructed not to leave the applicant alone with the child.

In February 2017, the child, who had learning difficulties, informed a teacher that the applicant had hit him on multiple occasions. In interviews with caseworkers, the applicant admitted to the allegations and stated he had stopped speaking to the child to protect himself against potential allegations. He exclaimed he didn't care how this would impact the child.

The decision

Whilst the applicant had no proven previous sexual assault encounters with children, his malice towards the foster child and the potential rape crime left the court to conclude that the applicant posed a real risk to the safety of children. Therefore, they affirmed the Children's Guardian decision to refuse the applicant the Clearance he sought. 

If you're unsure if you could be entitled to compensation for a sexual assault crime, seek the advice of the experts. Get in touch with the team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to see how we can assist you. 

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.