Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BHY v Children’s Guardian [2015] NSWCATAD 91 Hearing dates: 23 and 24 September 2014, 19 and 20 January 2015Last written submissions received 4 March 2015 Decision date: 07 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) The decision of the Children’s Guardian dated 15 May 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian filed 2 June 2014 is otherwise refused and dismissed.Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal - whether the applicant poses a risk to the safety of children - allegations and investigations of multiple sexual and indecent assault incidents - sustained finding of sexual misconduct against a child and in the presence of a child reported - no criminal charges or convictions- where imposition of restrictions in relation to the applicant’s work in a religious organisation to address risk management- counselling by psychologist to address and implement relapse prevention strategies in the context of denial- whether the strategies employed are sufficiently effective - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety of children. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW)Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BHL v Children’s Guardian [2015] NSWCATAD 46
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BYR v Children’s Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202
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
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
Maloney v New South Wales National Coursing…
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Details
- Case
- [2015] NSWCATAD 91
- Decision Date
CaseChat Overview and Summary
The applicant, BHY, sought a review of the decision by the Children's Guardian to deny him a Working with Children Check clearance. This refusal was based on findings that BHY posed a risk to the safety of children, despite there being no criminal charges or convictions against him. The denial of the clearance could significantly impact BHY's employment within a religious organisation. The primary legal issue was whether the Children's Guardian's decision was justified given the evidence available, and if the risk management strategies proposed by BHY were effective enough to mitigate the identified risks.
The court examined the evidence and the risk management strategies presented by BHY. It was noted that there were multiple allegations and investigations of sexual and indecent assaults involving BHY, leading to a sustained finding of sexual misconduct against a child. Although BHY denied these allegations, the Tribunal found them credible. The court also considered the effectiveness of the proposed risk management strategies, including psychological counselling and implementation of relapse prevention strategies. The court concluded that the denial of the clearance was justified, as BHY posed a real and appreciable risk to the safety of children. The court found that the onus of proof in such reviews lies with the applicant to demonstrate that they no longer pose such a risk.
The court affirmed the Children's Guardian's decision to deny the Working with Children Check clearance to BHY. The application for review was dismissed, and the court ordered that the decision of the Children's Guardian dated 15 May 2014 remains in effect. The court found that the evidence and risk management strategies presented did not sufficiently mitigate the risk posed by BHY to the safety of children.
The court examined the evidence and the risk management strategies presented by BHY. It was noted that there were multiple allegations and investigations of sexual and indecent assaults involving BHY, leading to a sustained finding of sexual misconduct against a child. Although BHY denied these allegations, the Tribunal found them credible. The court also considered the effectiveness of the proposed risk management strategies, including psychological counselling and implementation of relapse prevention strategies. The court concluded that the denial of the clearance was justified, as BHY posed a real and appreciable risk to the safety of children. The court found that the onus of proof in such reviews lies with the applicant to demonstrate that they no longer pose such a risk.
The court affirmed the Children's Guardian's decision to deny the Working with Children Check clearance to BHY. The application for review was dismissed, and the court ordered that the decision of the Children's Guardian dated 15 May 2014 remains in effect. The court found that the evidence and risk management strategies presented did not sufficiently mitigate the risk posed by BHY to the safety of children.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 15 May 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian filed 2 June 2014 is otherwise refused and dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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