BMG v Children’s Guardian [2015] NSWCATAD 233

BMG v Children’s Guardian [2015] NSWCATAD 233

Although the applicant's likelihood of reoffending was found to be low and there were many protective factors in his favour, the disqualifying offence was serious and the applicant bore the onus of rebutting the statutory presumption that he posed a risk to the safety of children. The Tribunal was not satisfied that he had discharged that onus because of unresolved concerns about a possible propensity to over-react towards people he does not trust or fears, the potential connection of that propensity with earlier identified emotional attachment and depressive issues, and the absence of an independent forensic psychological risk assessment addressing those matters.

Jurisdiction
Australia
Judgment Date
13 November 2015
Procedural Posture
Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 After Refusal of a Working With Children Check Clearance / Final Determination by the NSW Civil and Administrative Tribunal
Outcome
The applicant's application for an enabling order is refused.
Legal Topics
['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'disqualifying Offence' 'risk to the Safety of Children' 'child Related Work']
['child Protection' 'administrative Law'] ['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'disqualifying Offence' 'risk to the Safety of Children' 'child Related Work']

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Procedural Posture

Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 After Refusal of a Working With Children Check Clearance / Final Determination by the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether the applicant, a disqualified person by reason of a manslaughter conviction involving a child, should be granted an enabling order declaring that he not be treated as a disqualified person.' 'Whether the applicant rebutted the statutory presumption in subs 28(7) of the Child Protection (Working with Children) Act 2012 that he poses a risk to the safety of children.' "Whether the evidence, including the applicant's history, remorse, conduct since the offence, coaching experience and psychological material, was sufficient to satisfy the Tribunal that he did not pose a real and appreciable risk to the safety of children."]

Ratio Decidendi

Although the applicant's likelihood of reoffending was found to be low and there were many protective factors in his favour, the disqualifying offence was serious and the applicant bore the onus of rebutting the statutory presumption that he posed a risk to the safety of children. The Tribunal was not satisfied that he had discharged that onus because of unresolved concerns about a possible propensity to over-react towards people he does not trust or fears, the potential connection of that propensity with earlier identified emotional attachment and depressive issues, and the absence of an independent forensic psychological risk assessment addressing those matters.

Court Disposition

The applicant's application for an enabling order is refused.

Orders

  • ["The applicant's application for an enabling order is refused."]