BHA v Children's Guardian - [2014] NSWCATAD 161

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: BHA v Children's Guardian [2014] NSWCATAD 161
Decision date: 03 October 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: T Sheedy, Senior Member
Decision:
The application for an enabling order is refused.

Catchwords: Working with children clearance - application for enabling order by disqualified person - presumption the applicant poses a risk to the safety of children - whether the applicant has proven the contrary
Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulations 2013
Child Protection (Prohibited Employment)
Act 1998 (repealed)
Commission for Children and Young People Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Interpretation Act 1987
Cases Cited: ADV v Commissioner for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
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
R v Commission for Children and Young People [2002] NSWIRComm 101
RD v Commission for Children and Young People [2007] NSWADT 299
RV v Commissioner for Children and Young People [2007] NSWADT299
Category: Principal judgment
Parties: BHA (Applicant)
Children's Guardian
Representation: Counsel
G Moore (Respondent)
Legal Aid NSW(Applicant)
Crown Solicitor's Office (Respondent)

File Number(s): 1410222
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 under section 64 of the Civil and Administrative Tribunal Act 2013 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.

On 20 June 1988, the applicant, BHA, was convicted of indecent assault under section 61E of the Crimes Act 1900 in the District Court at Gosford. At the time of the offence BHA was 24 years old. The victim was a 10 year old boy. The applicant was released on a recognisance to be of good behaviour for a period of four years and to accept the supervision of the Probation and Parole Service.

The applicant's conviction is for an offence listed at clause 1(1)(d) of Schedule 2 of the Child Protection (Working with Children) Act 2012 ('the Act'). The Children's Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence by reason of section 18(1)(a) of the Act. Section 18 (1) deems those convicted of offences listed in Schedule 1 of the Act as "disqualified…

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: [2014] NSWCATAD 161
Decision Date: 03 October 2014

CaseChat Overview and Summary

In the case of BHA v Children's Guardian, the applicant, BHA, sought an enabling order to work with children after being disqualified from holding a working with children clearance. The applicant argued that they had taken appropriate steps to address the issues leading to their disqualification, and therefore, they should be granted an enabling order to resume working with children. The Children's Guardian opposed the application, asserting that the applicant had not demonstrated that they no longer posed a risk to children's safety.

The central legal issue before the court was whether the applicant had discharged the onus of proving that they did not pose a risk to the safety of children, thereby warranting the grant of an enabling order. The court considered the statutory framework and relevant case law to determine the applicable legal principles. The court held that the applicant had not met the required standard of proof to overcome the presumption that they posed a risk to the safety of children.

The court's reasoning hinged on the statutory presumption that a disqualified applicant poses a risk to children's safety. The applicant was required to demonstrate, on the balance of probabilities, that they no longer posed such a risk. The court found that the applicant had not provided sufficient evidence to discharge this onus. Consequently, the application for an enabling order was refused. The court's decision was based on the applicant's failure to meet the necessary standard of proof, and the presumption of risk remained unrebutted.

The final order of the court was to refuse the application for an enabling order, meaning that the applicant could not work with children until they had successfully addressed the underlying issues leading to their disqualification.

Orders

Orders of the court

The application for an enabling order 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:	BHA v Children's Guardian [2014] NSWCATAD 161
Decision date:	03 October 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Sheedy, Senior Member
Decision:	The application for an enabling order is refused.
Catchwords:	Working with children clearance - application for enabling order by disqualified person - presumption the applicant poses a risk to the safety of children - whether the applicant has proven the contrary
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulations 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Commission for Children and Young People Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Interpretation Act 1987
Cases Cited:	ADV v Commissioner for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 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 R v Commission for Children and Young People [2002] NSWIRComm 101 RD v Commission for Children and Young People [2007] NSWADT 299 RV v Commissioner for Children and Young People [2007] NSWADT299
Category:	Principal judgment
Parties:	BHA (Applicant) Children's Guardian
Representation:	Counsel G Moore (Respondent) Legal Aid NSW(Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1410222
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