BMZ v Children’s Guardian [2015] NSWCATAD 81

BMZ v Children’s Guardian [2015] NSWCATAD 81

Although the applicant's offence of sexual intercourse without consent was serious and his credibility and insight were imperfect, the evidence as a whole displaced the statutory presumption. The offence occurred about 18.5 years earlier, his subsequent criminal record was limited, there was no evidence of weight of continuing conduct posing a risk to children apart from one workplace incident, there was no adverse police notice since 1997 supporting concern about continuing alcohol-related violence, supportive evidence was given by persons with child welfare experience, and the evidence did not establish a real and appreciable risk to children greater than that of any adult. The...

Jurisdiction
Australia
Judgment Date
22 April 2015
Procedural Posture
Application for an Enabling Order Under Subsection 28(1) of the Child Protection (working With Children) Act 2012 NSW / Final Determination After Hearing
Outcome
Application granted; enabling order made and the Children's Guardian directed to grant a Working with Children Check Clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'sexual Intercourse Without Consent']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'sexual Intercourse Without Consent']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant should be declared not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 NSW.' 'Whether the applicant proved, on the balance of probabilities, that he does not pose a risk to the safety of children.' "How the statutory concept of risk to the safety of children should be applied to the applicant's offence, criminal history, alcohol use, conduct since the offence, insight, intellectual functioning and contact with children."]

Ratio Decidendi

Although the applicant's offence of sexual intercourse without consent was serious and his credibility and insight were imperfect, the evidence as a whole displaced the statutory presumption. The offence occurred about 18.5 years earlier, his subsequent criminal record was limited, there was no evidence of weight of continuing conduct posing a risk to children apart from one workplace incident, there was no adverse police notice since 1997 supporting concern about continuing alcohol-related violence, supportive evidence was given by persons with child welfare experience, and the evidence did not establish a real and appreciable risk to children greater than that of any adult. The...

Court Disposition

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

Orders

  • ['The Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of sexual intercourse without consent of which he was convicted at the District Court at Lismore on 16 May 1997.' "Pursuant to subs 28(6) of the Child...