BFC v The Children's Guardian

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BFC v The Children's Guardian [2014] NSWCATAD 90

Hearing dates:

13 May 2014 and 23 June 2014

Decision date:

08 July 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hon G Mullane, Senior member

Decision:

1) The Tribunal declares that BFC is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the 3 incest offences found proved by the Supreme Court at Armidale on 17 November 1982.

2) The Children's Guardian must grant BFC a Working with Children check clearance.

Legislation Cited:

Crimes Act, 1900
Child Protection (Working with Children) Act, 2012
Child Protection (Prohibited Employment) Act, 1998

Cases Cited:

Commission For Children and Young People -v- V [2002]

Category:

Principal judgment

Parties:

BFC (Applicant)
The Children's Guardian (Respondent)

Representation:

Counsel
Mr G Moore for the Respondent
Bird Legal for the applicant
Crown Solicitor for the Respondent

File Number(s):

1410073

Publication restriction:

S64 Civil and Administrative Tribunal Act 2013

reasons for decision

INTRODUCTION

1. On 17 November 1982 the Applicant was convicted in the Supreme Court on 3 counts of incest which occurred in about March 1981 or earlier. The sentence was suspended on the basis of him entering into a 3 year recognizance conditional upon him accepting the supervision of the Probation and Parole Service of the Department of Corrective Services and attending Alcoholics Anonymous.

1. The offences of which the Applicant was convicted were offences under s.78A of the Crimes Act. Pursuant to paragraph 1(j) of Schedule 2 to the Child Protection (Working with Children) Act, 2012 ("the Act") it is a disqualifying offence in so far as s.18 of the Act prohibits the Children's Guardian from issuing a Working with Children clearance check to a person who has such a conviction.

1. When the Act came into force the Applicant was caring for two of his granddaughters. One of the daughters, D, had been in the care of the Applicant since about early 1997 when she was 9, and the other granddaughter, U, had been in his care since 2005 when she was aged 2. Both the granddaughters were children of the daughter of the Applicant, who suffered a drug addiction and had left the children with the Applicant. In March 1997 the Applicant and his wife were granted custody and guardianship of D by the local Court at Bathurst. His wife died in 2000. On 30 October 2007 the Local Court at Bathurst Ordered that U reside with the Applicant and he have sole parental responsibility for her.

1. In January 2014 the Applicant was informed by the Department of Community Services that he had failed the Working with Children check because he was registered as a child sex offender. The children were removed from his care. D has since completed high school and U is living with an aunt in Sydney.

THE EVIDENCE

1. The evidence comprised:

1) The Application filed 17 February 2014

2) The…