BLD v NSW Office of the Children's Guardian

The applicant, BLD, sought a review of the decision by the NSW Office of the Children's Guardian to refuse to grant a Working with Children check clearance, arguing that the decision was flawed and should be overturned. The dispute was adjudicated in the NSW Civil and Administrative Tribunal (NCAT). The applicant argued that the Guardian's decision was not the correct and preferable decision, given the evidence before the Tribunal, and sought to establish that they did not pose a risk to the safety of children.

The legal issues before the court included the interpretation of the term "child abuse" within the Child Protection (Working with Children) Act 2012, the burden of proof in a review under section 27 of the Act, and whether there was a real and appreciable risk posed by the applicant to the safety of children. The court had to assess the applicant's extensive criminal history, which included multiple historical offences of violence perpetrated upon and in the presence of children, and drug and alcohol abuse offences, to determine whether these factors justified the refusal of the clearance.

The NCAT found that the Guardian's decision was correct and preferable, affirming the refusal of the Working with Children check clearance. The court concluded that the applicant's criminal history, particularly the history of violence towards and in the presence of children, demonstrated a real and appreciable risk to the safety of children. The court determined that the onus of proof in a review under section 27 did not shift from the applicant to the Guardian. As a result, the application for review was dismissed, and the original decision was upheld.

The final orders of the Tribunal affirmed the decision of the Children's Guardian dated 22 July 2014 to refuse the Working with Children check clearance. The application for review filed on 13 August 2014 was otherwise refused and dismissed.