BVT v Children's Guardian [2016] NSWCATAD 12

BVT v Children's Guardian [2016] NSWCATAD 12

The applicant failed to discharge the onus of proving, on the balance of probabilities, that he does not pose a risk to the safety of children as required under s28(7) of the Child Protection (Working with Children) Act 2012 (NSW). The serious nature of the disqualifying offence, lack of insight into past offending, and personality traits indicating ongoing risk combined to prevent the Tribunal from being satisfied that the applicant is not a risk. Therefore, the refusal to grant a Working with Children Check clearance is affirmed and the application for an enabling order is dismissed.

Jurisdiction
Australia
Judgment Date
13 January 2016
Procedural Posture
Administrative Review / Final Judgment
Outcome
Application for review and enabling order refused; decision to refuse Working with Children Check clearance affirmed.
Legal Topics
['working With Children Check' 'enabling Order' 'disqualification for Criminal Conviction' 'risk Assessment to Children' 'protective Jurisdiction']
['administrative Law' 'child Protection'] ['working With Children Check' 'enabling Order' 'disqualification for Criminal Conviction' 'risk Assessment to Children' 'protective Jurisdiction']

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Procedural Posture

Administrative Review / Final Judgment

Legal Issues

  1. 1 ['Whether the applicant has rebutted the presumption under section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW) that he poses a risk to the safety of children' 'Whether the applicant should be granted a Working with Children Check clearance or enabling order despite a disqualifying conviction']

Ratio Decidendi

The applicant failed to discharge the onus of proving, on the balance of probabilities, that he does not pose a risk to the safety of children as required under s28(7) of the Child Protection (Working with Children) Act 2012 (NSW). The serious nature of the disqualifying offence, lack of insight into past offending, and personality traits indicating ongoing risk combined to prevent the Tribunal from being satisfied that the applicant is not a risk. Therefore, the refusal to grant a Working with Children Check clearance is affirmed and the application for an enabling order is dismissed.

Court Disposition

Application for review and enabling order refused; decision to refuse Working with Children Check clearance affirmed.

Orders

  • ["The decision of the Children's Guardian dated 20 November 2013 to refuse to grant the applicant a Working with Children Check clearance is affirmed." "The application for review of the decision of the Children's Guardian and for an enabling order filed 17 April 2015 is otherwise refused and dismissed."]