BNJ v Children’s Guardian [2015] NSWCATAD 96

BNJ v Children’s Guardian [2015] NSWCATAD 96

Although the disqualifying offence was serious because it involved an indecent act in the presence of a vulnerable elderly person in the applicant's care, the Tribunal was satisfied on balance that the applicant rebutted the statutory presumption that he posed a risk to the safety of children. The Tribunal relied on the absence of findings that the offence was committed for sexual gratification, corroborative medical evidence of a history of groin pain and hernia surgery, the applicant's frankness, remorse and understanding of the inappropriateness of his conduct, the isolated nature of the incident, no offences or complaints involving children, 14 years of St John (NSW) volunteering...

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 and for Grant of a Working With Children Check Clearance / Decision After Hearing
Outcome
Application granted; enabling order made and respondent ordered to grant a Working with Children Check Clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'enabling Order' 'risk to the Safety of Children' 'statutory Presumption']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'enabling Order' 'risk to the Safety of Children' 'statutory Presumption']

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 and for Grant of a Working With Children Check Clearance / Decision After Hearing

Legal Issues

  1. 1 ['Whether the applicant had discharged his onus under subsection 28(7) of the Child Protection (Working with Children) Act 2012 to rebut the statutory presumption that he poses 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 aggravated indecency offence.' "Whether the Children's Guardian should be ordered to grant the applicant a Working with Children Check Clearance."]

Ratio Decidendi

Although the disqualifying offence was serious because it involved an indecent act in the presence of a vulnerable elderly person in the applicant's care, the Tribunal was satisfied on balance that the applicant rebutted the statutory presumption that he posed a risk to the safety of children. The Tribunal relied on the absence of findings that the offence was committed for sexual gratification, corroborative medical evidence of a history of groin pain and hernia surgery, the applicant's frankness, remorse and understanding of the inappropriateness of his conduct, the isolated nature of the incident, no offences or complaints involving children, 14 years of St John (NSW) volunteering...

Court Disposition

Application granted; enabling order made and respondent ordered to grant a Working with Children Check Clearance.

Orders

  • ['The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of aggravated act of indecency, found proved by the Local Court on 9 July 2014.' 'The respondent must grant the applicant a...