Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BJQ v Children's Guardian [2016] NSWCATAD 99 Hearing dates: 29 January 2016 Date of orders: 20 May 2016 Decision date: 20 May 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M W Anderson, Senior Member
M Bolt, General MemberDecision: 1) The decision of the Children’s Guardian dated 2 June 2015 to refuse to grant the applicant’s Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian filed 22 June 2015 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 – assessment trigger under clause 1(1)(b) of Schedule 1 to the Child Protection (Working with Children) Act 2012- charges under section 66C(4) Crimes Act 1900 of aggravated sexual intercourse with a girl aged 14 dismissed before trial and after her death- whether the applicant poses a risk to the safety of children – DNA evidence in the criminal case matches the applicant – investigation report by the applicant’s employer substantiated 2 allegations against the applicant- a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to grant the applicant a working with children clearance. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
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)
Crimes Act 1900 (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
BGX v Children's Guardian [2014] NSWCATAD 173
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders…
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Details
- Case
- [2016] NSWCATAD 99
- Decision Date
CaseChat Overview and Summary
The case of BJQ v Children's Guardian involved a dispute over the refusal of a working with children check clearance to the applicant by the Children's Guardian. The applicant sought a review of the decision under section 27 of the Child Protection (Working with Children) Act 2012. The application was heard by the court, which had to determine the correctness and preferability of the decision to refuse the clearance. The key legal issues included the application of clause 1(1)(b) of Schedule 1 to the Child Protection (Working with Children) Act 2012, the relevance of dismissed criminal charges, and the significance of DNA evidence and substantiated allegations of inappropriate behaviour towards a child.
The court examined the evidence, including the dismissed charges of aggravated sexual intercourse with a 14-year-old girl, which were based on DNA evidence linking the applicant to the crime. The court also considered the substantiated allegations by the applicant's employer, which involved inappropriate behaviour towards a child. The court found that a real and appreciable risk was posed by the applicant to the safety, welfare, and well-being of children. The paramount concern in such matters was the protection of children from abuse, and the court determined that the decision to refuse the working with children check clearance was the correct and preferable one. The court affirmed the decision of the Children's Guardian dated 2 June 2015, and dismissed the application for review.
In conclusion, the court upheld the decision of the Children's Guardian and refused to grant the applicant a working with children clearance. The court's decision was based on the substantial evidence presented, which indicated a real and appreciable risk to children posed by the applicant. The court found that the correct and preferable decision was to protect children from potential abuse by refusing the clearance. The application for review was dismissed, and the original decision of the Children's Guardian was affirmed.
The court examined the evidence, including the dismissed charges of aggravated sexual intercourse with a 14-year-old girl, which were based on DNA evidence linking the applicant to the crime. The court also considered the substantiated allegations by the applicant's employer, which involved inappropriate behaviour towards a child. The court found that a real and appreciable risk was posed by the applicant to the safety, welfare, and well-being of children. The paramount concern in such matters was the protection of children from abuse, and the court determined that the decision to refuse the working with children check clearance was the correct and preferable one. The court affirmed the decision of the Children's Guardian dated 2 June 2015, and dismissed the application for review.
In conclusion, the court upheld the decision of the Children's Guardian and refused to grant the applicant a working with children clearance. The court's decision was based on the substantial evidence presented, which indicated a real and appreciable risk to children posed by the applicant. The court found that the correct and preferable decision was to protect children from potential abuse by refusing the clearance. The application for review was dismissed, and the original decision of the Children's Guardian was affirmed.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 2 June 2015 to refuse to grant the applicant’s Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian filed 22 June 2015 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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