BFX v Children's Guardian

Case [2014] NSWCATAD 115


NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BFX v Children's Guardian [2014] NSWCATAD 115
Hearing dates:16/07/2014
Decision date: 12 August 2014
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Decision:

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.

Catchwords: 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.
Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Evidence Act 1995
Family Law Act 1975(Cth)
Interpretation Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
M v M [1988] HCA 68; 166 CLR 69
MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63
R v Commission for Children and Young People [2002] NSWIRComm 101
Roberts v Balancio (1987) 8 NSWLR 436
Texts Cited: Oxford English Dictionary (Second Edition)
Category:Principal judgment
Parties: BFX (Applicant)
Children's Guardian (Respondent)
Representation: 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

  1. 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.

  1. 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…

Continue reading BFX v Children's Guardian

Sign in free to access the full text

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.

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.