BQE v Children's Guardian

Case [2015] NSWCATAD 89

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BQE v Children’s Guardian [2015] NSWCATAD 89
Hearing dates:5 March 2015
Decision date: 05 May 2015
Jurisdiction:Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
Decision:

1. The decision of the Children's Guardian dated 2 October 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 on 22 December 2014 is otherwise refused and dismissed.

Catchwords: Application for review of decision of the Children’s Guardian. Whether the applicant has a forensic burden of evidence. Whether the applicant provided sufficient evidence to support his claims. Whether the applicant poses a real risk to the safety of children.
Legislation Cited: Child Protection (Working with Children Act) 2012 (NSW)
Cases Cited: YG & GG v Minister for Community Services NSWCA 247
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
Category:Principal judgment
Parties: BQE (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
M Gunning (Applicant)
J Harris, Solicitor Advocate (Respondent)

Solicitors:
Joseph Grassi and Associates (Applicant)
Crown Solicitors Office (Respondent)
File Number(s):1410726
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 and against publication of information that would identify the children of BQE.

Judgment

Background

  1. On 4 September 2013 the applicant, referred to in this decision as BQE, applied for a Working with Children Check Clearance pursuant to subsection 27(1) of the Child Protection (Working with Children Act) 2012 NSW.

  2. Sections 14 and 15 of the Child Protection (Working with Children Act) 2012 NSW and paragraph 1(1)(b) of Schedule 1 and paragraph 1(1)(e) of Schedule 2 of that Act have the effect that where a person has been charged with an offence under s61N of the Crimes Act 1900 NSW the Children’s Guardian must conduct an assessment of the applicant.

  3. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

  4. On 6 February 2011 the applicant was charged under section 61N of the Crimes Act 1900 NSW, with two counts of committing an act of indecency. He was convicted of these charges in the Local Court. However the convictions were set aside in the District Court on 8 March 2012.

  5. The charges against BQE resulted in the requirement for the Children’s Guardian to conduct a risk assessment in respect of BQE’s application.

  6. The Children’s Guardian contacted BQE regarding his application. BQE initially responded by telephone on…

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AGLC
BQE v Children's Guardian [2015] NSWCATAD 89
Case
[2015] NSWCATAD 89
Decision Date

CaseChat Overview and Summary

BQE applied for review of a decision made by the Children's Guardian refusing to grant him a Working with Children Check Clearance. The applicant argued that the decision was unreasonable and that he posed no risk to children. The Children's Guardian opposed the application on the basis that the applicant had failed to provide sufficient evidence to support his claims and that he posed a real risk to the safety of children. The court was required to determine whether the applicant had a forensic burden of evidence, whether the applicant provided sufficient evidence to support his claims, and whether the applicant posed a real risk to the safety of children.

The court found that the applicant had a forensic burden of evidence and that he had failed to provide sufficient evidence to support his claims. The court held that the applicant's evidence was not sufficient to rebut the presumption that he posed a risk to children. The court further found that the Children's Guardian's decision was not unreasonable and that the applicant posed a real risk to the safety of children. The court held that the applicant's history of violence and criminal conduct was relevant to the risk he posed to children.

The decision of the Children's Guardian dated 2 October 2014 to refuse to grant the applicant a Working with Children Check Clearance is affirmed. The application for review of the decision of the Children's Guardian filed on 22 December 2014 is otherwise refused and dismissed. The court found that the Children's Guardian's decision was not unreasonable and that the applicant posed a real risk to the safety of children. The applicant's history of violence and criminal conduct was relevant to the risk he posed to children. The court held that the applicant had failed to provide sufficient evidence to rebut the presumption that he posed a risk to children.

Orders

Orders of the court

1. The decision of the Children's Guardian dated 2 October 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 on 22 December 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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