BQF v Children's Guardian - [2015] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Case Name:	BQF v Children’s Guardian
Medium Neutral Citation:	[2015] NSWCATAD 225
Hearing Date(s):	2 September 2015
Decision Date:	28 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Mullane ADCJ Principal Member R Royer General Member
Decision:	(1) The Application of the Applicant for enabling orders is refused. (2) The application of 22 December 2014 is otherwise dismissed. (3) Broadcast or publication of the name or other identifying information of the Applicant, his wife or any victim of any offence of the Applicant referred to in these reasons is prohibited.
Catchwords:	Child protection - Working with Children - enabling application – risk to safety of children.
Legislation Cited:	Crimes Act 1900 Child Protection (Working with Children) Act 2012 Adoption Act 2000 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BQF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Ginters (Respondent) Solicitors: John Edmunds Solicitors (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410727
Publication Restriction:	Per Order 3 above. Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Judgment

Introduction

On 14 June 1974 the applicant was convicted in the District Court of East Maitland of carnal knowledge of a child of the age 10 to 16 years, an offence under section 71 of the Crimes Act 1900. He was sentenced to 18 months imprisonment with a non-parole period of 6 months and the sentence was to be served at the expiry of a sentence which he was already serving.
In 2014 the applicant and his present wife assumed care of 3 young children of his wife’s son. The children were placed in the care of the applicant’s wife by the Department of Family and Community Services.
After the children came to live with the applicant and his wife, he was advised by the Department of Family and Community Services of the requirement of the Child Protection (Working with Children) Act 2013 (“the Act”) that he needed to apply to the Children’s Guardian for a Working with Children Check Clearance.
He made his application on 30 September 2014. By letter dated 21 November 2014 the Children’s Guardian notified the applicant that the Children’s Guardian was prohibited by the Act from issuing a Check Clearance to the applicant because of his conviction for carnal knowledge in 1974, which under the Act was a disqualifying offence and prohibited him from working with children, whether it was voluntary or paid.
The applicant filed his application in the Tribunal on 22 December 2014 seeking that the Tribunal make an order that for the purposes of his application for a Check Clearance, the Children’s Guardian disregard the disqualifying conviction and make…

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.

Continue reading BQF v Children's Guardian

Details

AGLC: BQF v Children's Guardian [2015] NSWCATAD 225
Case: [2015] NSWCATAD 225
Decision Date: 28 October 2015

CaseChat Overview and Summary

The case of BQF v Children's Guardian involved a challenge by BQF to the decision of the Tribunal to refuse his enabling application under the Child Protection (Working with Children) Act. BQF sought to work in a role involving children, but his application was refused due to a past conviction for a serious sexual offence against a child. The dispute was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide involved the interpretation of the relevant sections of the Child Protection (Working with Children) Act and the assessment of the risk that BQF posed to the safety of children. The court had to consider whether the Tribunal's decision to refuse the enabling application was justified based on the evidence and the statutory criteria.

The court examined the evidence provided by Dr Hinton, a psychologist who assessed BQF, and concluded that the Tribunal was correct in its assessment that BQF posed a risk to the safety of children. The court found that BQF had not overcome the presumption that he posed a risk, as he had not demonstrated a significant change in behaviour or acceptance of responsibility for his past offence. The court also noted that BQF's ongoing use of alcohol and cannabis and his lack of professional assistance in addressing these issues were relevant to the risk assessment.

The orders of the court were that BQF's application for enabling orders was refused, and the application of 22 December 2014 was dismissed. The court also prohibited the broadcast or publication of any identifying information of BQF, his wife, or any victims involved in the case.

Orders

Orders of the court

(1) The Application of the Applicant for enabling orders is refused.

(2) The application of 22 December 2014 is otherwise dismissed.

(3) Broadcast or publication of the name or other identifying information of the Applicant, his wife or any victim of any offence of the Applicant referred to in these reasons is prohibited.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusions In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers, that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section:"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence" [At par 41] and [at par 42]."One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the `risk' with the words that follow, namely, 'to the safety of children'”. The disqualifying offence in this matter was a very serious one. More than 40 years after the offence the applicant is continuing to deny and minimise the offence. He has continued since his arrest to blame the child victim and shows no genuine remorse. He has not accepted responsibility for his offence. There is no evidence that he has ever obtained expert advice or therapeutic assistance in relation to the risk that he may pose to the safety of children, which includes all persons under 18. The applicant has a background involving abuse of alcohol and convictions for offences committed under the influence of alcohol. The disqualifying offence occurred when he had been drinking. He told Dr Hinton that he at present is using alcohol at a level that concerns him. He also uses cannabis weekly. But there is no evidence that the applicant has ever sought professional assessment or treatment in relation to his use of alcohol or cannabis despite numerous offences related to alcohol use. The Tribunal is concerned that these are relevant matters to the risk of reduced inhibition and bad behaviour. These matters were not taken into account by Dr Hinton in forming his assessment that the applicant poses a low risk of further sexual offences. The Tribunal is also concerned that the Applicant after serving his sentence partnered with a child of 15 or 16. The Tribunal is not persuaded by the reasons given by Dr Hinton that the score of the applicant in the Static-99R should be reduced from 4 to 1 and it is not satisfied therefore that on the Static-99R the applicant’s risk of recidivism in relation to the sexual offences is “low”, rather than “low–moderate” or “moderate-high”. The Tribunal concludes that the Applicant has not overcome the presumption in subsection 28(7) of the Act that he poses a risk to the safety of children and his application must be refused.

Ratio Decidendi

Legal Principle Established

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