BVT v Children's Guardian (No 3) [2017] NSWCATAD 111

BVT v Children's Guardian (No 3) [2017] NSWCATAD 111

The applicant did not rebut the statutory presumption that he posed a risk to the safety of children. Although the offence was committed over 43 years earlier and the applicant relied on claimed sobriety, absence of recent significant offending and stable family circumstances, the Tribunal gave substantial weight to the seriousness and opportunistic violence of the 1973 assault with intent to rape, the applicant's inconsistent and minimising account, limited insight, unresolved antisocial and narcissistic personality traits, lack of demonstrated psychological progress, and the absence of evidence sufficient to show that the risk factors had been addressed. Because the applicant had not...

Jurisdiction
Australia
Judgment Date
06 April 2017
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Rehearing After Supreme Court Appeal and Remittal to the Tribunal
Outcome
Application refused and dismissed.
Legal Topics
['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'onus of Proof' 'disqualifying Sexual Offence']
['administrative Law' 'child Protection' 'working With Children Checks'] ['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'onus of Proof' 'disqualifying Sexual Offence']

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 (nsw) / Rehearing After Supreme Court Appeal and Remittal to the Tribunal

Legal Issues

  1. 1 ['Whether the applicant had discharged the onus under section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW) to prove that he does not pose a risk to the safety of children.' "Whether, having regard to the mandatory considerations in section 30(1) of the Child Protection (Working with Children) Act 2012 (NSW), an enabling order should be made despite the applicant's 1973 conviction for assault with intent to rape."]

Ratio Decidendi

The applicant did not rebut the statutory presumption that he posed a risk to the safety of children. Although the offence was committed over 43 years earlier and the applicant relied on claimed sobriety, absence of recent significant offending and stable family circumstances, the Tribunal gave substantial weight to the seriousness and opportunistic violence of the 1973 assault with intent to rape, the applicant's inconsistent and minimising account, limited insight, unresolved antisocial and narcissistic personality traits, lack of demonstrated psychological progress, and the absence of evidence sufficient to show that the risk factors had been addressed. Because the applicant had not...

Court Disposition

Application refused and dismissed.

Orders

  • ['The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 17 April 2015 is refused and dismissed.' 'With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these...