BRY v Children’s Guardian [2015] NSWCATAD 220

BRY v Children’s Guardian [2015] NSWCATAD 220

Having regard to the evidence, submissions, the objects and principles of the relevant Acts, and the factors in s 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal was satisfied that the Applicant had discharged his onus of proving that he does not pose a risk to the safety of children. The disqualifying indecent assault was not committed against a child, occurred about 13 years earlier, and was less serious than other conduct that may constitute indecent assault; the Applicant had no convictions for offences against children, had maintained abstinence from drugs and alcohol since rehabilitation in late 2007, had no relevant criminal convictions for almost eight...

Jurisdiction
Australia
Judgment Date
22 October 2015
Procedural Posture
Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 Following Refusal of a Working With Children Check Clearance / Final Hearing and Reserved Decision in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Application granted; enabling order made and the Respondent ordered to grant the Applicant a Working with Children Check Clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'indecent Assault Conviction' 'risk to the Safety of Children' 'statutory Presumption']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'indecent Assault Conviction' 'risk to the Safety of Children' 'statutory Presumption']

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Procedural Posture

Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 Following Refusal of a Working With Children Check Clearance / Final Hearing and Reserved Decision in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the Applicant had discharged his onus to rebut the statutory presumption in s 28(7) of the Child Protection (Working with Children) Act 2012 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 for the purposes of the Child Protection (Working with Children) Act 2012.']

Ratio Decidendi

Having regard to the evidence, submissions, the objects and principles of the relevant Acts, and the factors in s 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal was satisfied that the Applicant had discharged his onus of proving that he does not pose a risk to the safety of children. The disqualifying indecent assault was not committed against a child, occurred about 13 years earlier, and was less serious than other conduct that may constitute indecent assault; the Applicant had no convictions for offences against children, had maintained abstinence from drugs and alcohol since rehabilitation in late 2007, had no relevant criminal convictions for almost eight...

Court Disposition

Application granted; enabling order made and the Respondent ordered to grant the Applicant 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.' 'The Respondent must grant the Applicant a Working with Children Check Clearance.']