BGR v Children's Guardian [2014] NSWCATAD 150

BGR v Children's Guardian [2014] NSWCATAD 150

Having regard to the matters in s 30(1), the Tribunal held that the applicant discharged the onus of proving that he does not pose a real and appreciable risk to the safety of children. The offence was not at the upper end of seriousness for offences of its nature, occurred 18 years earlier when the applicant was a relatively new arrival in Australia, and he had since married, had children, become involved in community activities, instituted practices not to initiate physical contact with women, and had not come under adverse notice. The psychological evidence assessed his actual risk of reoffending as low and any victim of any reoffending as unlikely to be a child. The matters raised by...

Jurisdiction
Australia
Judgment Date
23 September 2014
Procedural Posture
Application for an Enabling Order Under Section 28(1) of the Child Protection (working With Children) Act 2012 NSW Declaring That the Applicant Not Be Treated as a Disqualified Person / Principal Judgment; Final Determination of the Application
Outcome
Application granted; enabling order made and Children's Guardian ordered to grant the applicant a Working with Children Clearance.
Legal Topics
['working With Children Clearance' 'disqualified Person' 'enabling Order' 'presumption of Risk to Safety of Children' 'disqualifying Offence' 'risk Assessment']
['administrative Law' 'child Protection' 'working With Children Checks'] ['working With Children Clearance' 'disqualified Person' 'enabling Order' 'presumption of Risk to Safety of Children' 'disqualifying Offence' 'risk Assessment']

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Procedural Posture

Application for an Enabling Order Under Section 28(1) of the Child Protection (working With Children) Act 2012 NSW Declaring That the Applicant Not Be Treated as a Disqualified Person / Principal Judgment; Final Determination of the Application

Legal Issues

  1. 1 ['Whether the applicant had proved, contrary to the presumption in subsection 28(7) of the Child Protection (Working with Children) Act 2012 NSW, that he does not pose a risk to the safety of children.' 'Whether an enabling order should be made declaring that the applicant is not to be treated as a disqualified person in respect of the offence for which he was convicted on 29 January 1997.' "Whether the Children's Guardian should be ordered to grant the applicant a Working with Children Clearance."]

Ratio Decidendi

Having regard to the matters in s 30(1), the Tribunal held that the applicant discharged the onus of proving that he does not pose a real and appreciable risk to the safety of children. The offence was not at the upper end of seriousness for offences of its nature, occurred 18 years earlier when the applicant was a relatively new arrival in Australia, and he had since married, had children, become involved in community activities, instituted practices not to initiate physical contact with women, and had not come under adverse notice. The psychological evidence assessed his actual risk of reoffending as low and any victim of any reoffending as unlikely to be a child. The matters raised by...

Court Disposition

Application granted; enabling order made and Children's Guardian ordered to grant the applicant a Working with Children Clearance.

Orders

  • ['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 and commit an act of indecency of which he was convicted on 29 January 1997.' "Pursuant to subsection 28(6) of the Child...