The applicant's application for an enabling order is granted.
1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012, in respect of the offence of sexual intercourse without consent under section 61 I Crimes Act 1900, of which he was convicted on 26 February 1999.
Working with Children clearance-Enabling Order application by a disqualified person-presumption the applicant poses a risk to the safety of children- Offence under s61I Crimes Act 1900 occurred 16 years ago with a woman a year older than the applicant-Tribunal not bound by rules of evidence- whether the applicant has proven he is not a risk to the safety of children.
G Moore (Respondent) BFX (Applicant in person) Crown Solicitor (Respondent)
File Number(s):
1410136
Publication restriction:
Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
reasons for decision
Introduction
An order was made at the commencement of the hearing of the proceedings under section 64 Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
In January 1998 the applicant, BFX who was then aged 26 years and 5 months, committed a criminal offence against a woman, who was 28 years of age, which was sexual intercourse…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BFX v Children's Guardian [2014] NSWCATAD 115
Case
[2014] NSWCATAD 115
Decision Date
CaseChat Overview and Summary
The case of BFX v Children's Guardian involves an application for an enabling order by a disqualified person seeking to overturn a decision by the Children's Guardian under the Child Protection (Working with Children) Act 2012. The applicant, who had previously been convicted of an offence of sexual intercourse without consent under section 61I of the Crimes Act 1900, sought to have his disqualification lifted to allow him to work with children. The applicant argued that the offence, which occurred 16 years prior, should not prevent him from obtaining a clearance, and that he no longer posed a risk to the safety of children.
The primary legal issue for the court was whether the applicant had successfully rebutted the presumption that he posed a risk to the safety of children. The court had to consider the nature of the offence, the time elapsed since the conviction, and the applicant's circumstances at the time of the offence, which involved a woman who was only a year younger than him. Furthermore, the court had to determine whether the Tribunal was bound by the rules of evidence and if the applicant had met the required standard of proof.
The court found that the applicant had effectively rebutted the presumption that he posed a risk to the safety of children. The court noted that the Tribunal was not bound by the rules of evidence and could make its decision based on the balance of probabilities. The court accepted the applicant's evidence that he was not a risk to the safety of children, taking into account the nature of the offence, the time elapsed, and the applicant's current circumstances. The court was satisfied that the applicant had met the required standard of proof.
Consequently, the court granted the applicant's application for an enabling order, declaring that he should not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. The court ordered that the Children's Guardian grant the applicant a working with Children clearance, effective immediately.
Orders
Orders of the court
The applicant's application for an enabling order is granted.
1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012, in respect of the offence of sexual intercourse without consent under section 61 I Crimes Act 1900, of which he was convicted on 26 February 1999.
2. Pursuant to subsection 28 (6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with Children clearance.