BVM v Children's Guardian

In the case of BVM v Children's Guardian, the applicant sought to overturn a decision by the Children's Guardian that he was a disqualified person in relation to working with children. The Guardian had refused to grant him a working with children clearance check on the basis that his history of offending indicated a risk of harming children. The dispute was heard and determined in the Supreme Court of Victoria. The applicant contended that he had not been given a fair opportunity to rebut the Guardian's findings and that the Guardian's determination of risk was not based on evidence.

The court was required to determine whether the applicant had discharged his onus to establish that he was not a disqualified person, and whether the Guardian's determination of risk was lawful. The applicant argued that the Guardian had failed to properly consider his submissions and evidence, and that the concept of risk was not defined in the relevant legislation. The Guardian, on the other hand, submitted that the applicant's history of offending demonstrated a risk of harm to children and that the determination of risk was a matter of professional judgement.

The court held that the applicant had not discharged his onus to establish that he was not a disqualified person. The court found that the Guardian had properly considered the applicant's submissions and evidence, and that the determination of risk was a matter of professional judgement that was open to the Guardian. The court held that the concept of risk did not require a precise definition, but rather was a matter of common sense and experience. The court also found that the applicant's history of offending demonstrated a risk of harm to children, particularly in light of his failure to acknowledge or take responsibility for his past behaviour.

The application was refused. The court held that the Guardian's determination that the applicant was a disqualified person was lawful and that the applicant had not established that he was not a disqualified person. The court further held that the applicant's history of offending demonstrated a risk of harm to children, and that the Guardian's determination of risk was a matter of professional judgement that was open to her. The court found that the applicant had not discharged his onus of proof and refused the application.