BNP v Children’s Guardian [2015] NSWCATAD 133

BNP v Children’s Guardian [2015] NSWCATAD 133

The Tribunal refused the enabling order because, despite the passage of time, the applicant's age, absence of further child-related offences, and psychological evidence of low risk, the applicant bore the onus of proving he was not a risk to children and did not discharge it. The Tribunal was troubled by a pattern of inconsistent and incomplete disclosure, his continued denial of the offence, lack of treatment or counselling, and lack of demonstrated insight or sufficient steps to mitigate the risk of further offending, in circumstances where child safety is paramount and a clearance could not be made subject to conditions.

Jurisdiction
Australia
Judgment Date
26 June 2015
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 / Determination After Hearing in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales
Outcome
The application for an enabling order is refused.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'aggravated Indecent Assault of a Child']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'aggravated Indecent Assault of a Child']

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 / Determination After Hearing in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the applicant discharged his onus 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 not be treated as a disqualified person so that he can be granted a working with children check clearance.']

Ratio Decidendi

The Tribunal refused the enabling order because, despite the passage of time, the applicant's age, absence of further child-related offences, and psychological evidence of low risk, the applicant bore the onus of proving he was not a risk to children and did not discharge it. The Tribunal was troubled by a pattern of inconsistent and incomplete disclosure, his continued denial of the offence, lack of treatment or counselling, and lack of demonstrated insight or sufficient steps to mitigate the risk of further offending, in circumstances where child safety is paramount and a clearance could not be made subject to conditions.

Court Disposition

The application for an enabling order is refused.

Orders

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