BFX v Children's Guardian [2014] NSWCATAD 115

BFX v Children's Guardian [2014] NSWCATAD 115

Considering the mandatory factors in section 30(1), the applicant rebutted on the balance of probabilities the statutory presumption that he posed a risk to the safety of children. Although the 1998 sexual offence was serious and the applicant's later alcohol-related conduct was concerning, the offence did not involve a child, occurred 16 years earlier, was unplanned and not part of ongoing or escalating conduct, there had been no recurrence of similar conduct, the applicant had shown genuine remorse, had achieved significant and sustained positive socialisation, and was now in a stable family and business situation. The Tribunal was therefore satisfied that he did not pose a real and...

Jurisdiction
Australia
Judgment Date
12 August 2014
Procedural Posture
Application for an Enabling Order Under Section 28(1) of the Child Protection (working With Children) Act 2012 / Final Determination After Hearing
Outcome
The applicant's application for an enabling order was granted.
Legal Topics
['enabling Order' 'disqualified Person' 'working With Children Clearance' 'risk to the Safety of Children' 'sexual Intercourse Without Consent' 'tribunal Procedure and Evidence']
['administrative Law' 'child Protection' 'working With Children Checks'] ['enabling Order' 'disqualified Person' 'working With Children Clearance' 'risk to the Safety of Children' 'sexual Intercourse Without Consent' 'tribunal Procedure and Evidence']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28(1) of the Child Protection (working With Children) Act 2012 / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the applicant had provided sufficient evidence to rebut the presumption in section 28(7) of the Child Protection (Working with Children) Act 2012 that he poses a risk to the safety of children.' 'Whether, having regard to the mandatory considerations in section 30(1) of the Child Protection (Working with Children) Act 2012, an enabling order should be made.' "Whether the applicant's past offence, criminal history, alcohol consumption, insight and conduct since offending showed a real and appreciable risk to the safety of children."]

Ratio Decidendi

Considering the mandatory factors in section 30(1), the applicant rebutted on the balance of probabilities the statutory presumption that he posed a risk to the safety of children. Although the 1998 sexual offence was serious and the applicant's later alcohol-related conduct was concerning, the offence did not involve a child, occurred 16 years earlier, was unplanned and not part of ongoing or escalating conduct, there had been no recurrence of similar conduct, the applicant had shown genuine remorse, had achieved significant and sustained positive socialisation, and was now in a stable family and business situation. The Tribunal was therefore satisfied that he did not pose a real and...

Court Disposition

The applicant's application for an enabling order was granted.

Orders

  • ['Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012, in respect of the offence of sexual intercourse without consent under section 61 I Crimes Act 1900, of which he was convicted on 26 February 1999.' "Pursuant to subsection...