BFL v Children's Guardian - [2015] NSWCATAD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BFL v Children’s Guardian [2015] NSWCATAD 33
Hearing dates: 1 September 2014; 6 November 2014; 2 December 2014
Decision date: 06 March 2015
Before: R Booby, Senior Member
Decision:
The application is refused

Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk –
Legislation Cited: Crimes Act 1900 NSW
Family Law Act 1975 (Cth)
Evidence Act 1995 NSW
Commission for Children and Young People Act 1998 NSW
Child Protection (Working with Children ) Act 2012 NSW
Civil and Administrative Tribunal Act 2013 NSW
Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 111
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Commission for Children and Young People v V [2002] NSWSC 949
ADV v Commission for Children and Young People [2012] NSWADT 8,
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140
RV v Commission for Children and Young People [2007] NSWADT 299
BHA v Children's Guardian [2014] NSWCATAD 161
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69,
BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115
Civil and Administrative Tribunal Act 2013 NSW
Category: Principal judgment
Parties: BFL (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
S McMahon (Applicant)
M Higgins (Respondent)
Solicitors:
Harris Wheeler Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1410096
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.

Judgment

Introduction

The applicant is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.
Section 18(1)(a) of the Act establishes that where a person is convicted of an offence specified in Schedule 2 of the Act, that person is a disqualified person, to whom the Children’s Guardian must not grant a working with children clearance.
The offence which brings the applicant within subsection 18(1) of the Act is two counts of “sexual intercourse without consent” under s61I of the Crimes Act 1900 NSW of which BFL was found guilty on 12 October 1995. In his written submissions, counsel for the applicant states that BFL’s ‘disqualifying offence’ was one under s61J of the Crimes Act

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

Case: [2015] NSWCATAD 33
Decision Date: 06 March 2015

CaseChat Overview and Summary

In the matter of BFL v Children's Guardian, the case involved an application by BFL, a prospective foster carer, seeking a review of a decision by the Children's Guardian to deny his application for a working with children clearance check. The dispute centred around whether BFL, who had a criminal history, had satisfied the statutory requirement to demonstrate that he was not a person who posed a risk of harm to children. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether BFL had discharged the onus of proving that he did not pose a risk of harm to children, thus warranting a clearance check. The court had to interpret the statutory term "risk" within the context of the relevant legislation. This involved examining the legislative intent and the circumstances of BFL's past conduct to assess if there was a real, significant threat of harm to children.

The court held that BFL had not discharged the onus of proving that he did not pose a risk of harm to children. The court found that the term "risk" encompassed a real, significant threat of harm, which was not limited to the probability of harm occurring. The court considered the nature and seriousness of BFL's past criminal conduct, which included offences of a sexual nature against children, and concluded that this conduct demonstrated a significant risk of harm to children. As such, the application for a review of the decision was refused.

Orders

Orders of the court

The application is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BFL v Children’s Guardian [2015] NSWCATAD 33
Hearing dates:	1 September 2014; 6 November 2014; 2 December 2014
Decision date:	06 March 2015
Before:	R Booby, Senior Member
Decision:	The application is refused
Catchwords:	ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk –
Legislation Cited:	Crimes Act 1900 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW Commission for Children and Young People Act 1998 NSW Child Protection (Working with Children ) Act 2012 NSW Civil and Administrative Tribunal Act 2013 NSW
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Commission for Children and Young People v V [2002] NSWSC 949 ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 BHA v Children's Guardian [2014] NSWCATAD 161 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 Civil and Administrative Tribunal Act 2013 NSW
Category:	Principal judgment
Parties:	BFL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S McMahon (Applicant) M Higgins (Respondent) Solicitors: Harris Wheeler Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410096
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.