CGA v Children's Guardian [2016] NSWCATAD 241

CGA v Children's Guardian [2016] NSWCATAD 241

The applicant was a disqualified person by reason of a serious carnal knowledge offence involving a child, and although he had made progress through counselling and improved personal circumstances, the evidence showed unresolved psychological issues, an ongoing diagnosed anxiety disorder, insufficient independent insight into child-related risk, serious past threats of violence, and concerning conduct at a primary school. On the balance of probabilities, after considering section 30(1) of the Act, the applicant had not rebutted the statutory presumption that he posed a risk to the safety of children, so an enabling order could not be made.

Jurisdiction
Australia
Judgment Date
26 October 2016
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) / Final Determination
Outcome
Application refused and dismissed.
Legal Topics
['enabling Order' 'disqualified Person' 'disqualifying Offence' 'risk to the Safety of Children' 'onus of Proof' 'civil Standard of Proof']
['administrative Law' 'child Protection' 'working With Children Check'] ['enabling Order' 'disqualified Person' 'disqualifying Offence' 'risk to the Safety of Children' 'onus of Proof' 'civil Standard of Proof']

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) / Final Determination

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 did not pose a risk to the safety of children.' 'Whether an enabling order should be made so that the applicant would not be treated as a disqualified person for the purposes of a Working with Children Check clearance.']

Ratio Decidendi

The applicant was a disqualified person by reason of a serious carnal knowledge offence involving a child, and although he had made progress through counselling and improved personal circumstances, the evidence showed unresolved psychological issues, an ongoing diagnosed anxiety disorder, insufficient independent insight into child-related risk, serious past threats of violence, and concerning conduct at a primary school. On the balance of probabilities, after considering section 30(1) of the Act, the applicant had not rebutted the statutory presumption that he posed a risk to the safety of children, so an enabling order could not be made.

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 4 November 2015 is refused and dismissed.']