BGS v Children’s Guardian [2015] NSWCATAD 57

BGS v Children’s Guardian [2015] NSWCATAD 57

Having considered all section 30 factors, the Tribunal found that the applicant's 1990 offending was at the lower end of seriousness, isolated, not premeditated, and not repeated; that about 25 years had passed with no further criminal history or relevant complaints; that the applicant had stable employment, a stable relationship, prosocial community service and no evidence of deviant sexual or antisocial behaviour; and that Mr Baker's opinion that the applicant's risk of reoffending was extremely low should be given significant weight. The applicant therefore proved on the balance of probabilities that he was not a real and appreciable risk to the safety of children, so the enabling...

Jurisdiction
Australia
Judgment Date
27 March 2015
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Final Determination by the Civil and Administrative Tribunal of New South Wales, Administrative and Equal Opportunity Division
Outcome
Application granted; enabling order made.
Legal Topics
['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'disqualifying Offence' 'risk to Safety of Children' 'indecent Assault']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'disqualifying Offence' 'risk to Safety of Children' 'indecent Assault']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Final Determination by the Civil and Administrative Tribunal of New South Wales, Administrative and Equal Opportunity Division

Legal Issues

  1. 1 ['Whether the applicant should be granted an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the applicant discharged the onus under section 28(7) of proving, on the balance of probabilities, that he does not pose a risk to the safety of children.' "Whether the applicant's 1991 finding for an offence under section 61E(1) of the Crimes Act 1900 (NSW), despite no conviction being recorded, was a conviction and disqualifying offence for the purposes of the Child Protection (Working with Children) Act 2012 (NSW)."]

Ratio Decidendi

Having considered all section 30 factors, the Tribunal found that the applicant's 1990 offending was at the lower end of seriousness, isolated, not premeditated, and not repeated; that about 25 years had passed with no further criminal history or relevant complaints; that the applicant had stable employment, a stable relationship, prosocial community service and no evidence of deviant sexual or antisocial behaviour; and that Mr Baker's opinion that the applicant's risk of reoffending was extremely low should be given significant weight. The applicant therefore proved on the balance of probabilities that he was not a real and appreciable risk to the safety of children, so the enabling...

Court Disposition

Application granted; enabling order made.

Orders

  • ['The application filed 22 April 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) is granted.' 'The Tribunal declares that the applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012...