Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BRT v Children's Guardian [2015] NSWCATAD 272 Hearing dates: 23 September 2015 Date of orders: 24 December 2015 Decision date: 24 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M W Anderson, Senior Member
Dr B Field, General MemberDecision: 1) The decision of the Children’s Guardian dated 15 January 2015 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 25 February 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 - whether the applicant poses a risk to the safety of children –acquittal on 2 counts of aggravated indecent assault of a female victim under the age of 16 years contrary to section 61M (1) of the Crimes Act 1900 (NSW) – an apprehended violence order was granted for a period of 2 years with standard conditions – convictions for common assault and assault occasioning actual bodily harm in 2006 - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to grant a working with children clearance. 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Child Protection (Prohibited Employment) Act 1998 (repealed)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)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW) Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)Cases Cited: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18
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
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 (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
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7…
Continue reading BRT v Children's Guardian
Sign in free to access the full text
Details
- AGLC
- BRT v Children's Guardian [2015] NSWCATAD 272
- Case
- [2015] NSWCATAD 272
- Decision Date
CaseChat Overview and Summary
The case of BRT v Children's Guardian involved an applicant seeking review of a decision by the Children's Guardian under section 27 of the Child Protection (Working with Children) Act 2012. The Guardian had refused to grant the applicant a working with children check clearance, citing concerns about the applicant's suitability to work with children due to past criminal convictions and an apprehended violence order. The applicant contested the refusal, arguing that the Guardian's decision was not the correct or preferable one given the material before the Tribunal.
The central legal issue before the court was whether the Guardian's decision to refuse clearance was justified, and specifically, whether the applicant posed a risk to the safety of children. The court examined the evidence, including the applicant's acquittal on two counts of aggravated indecent assault of a female victim under 16 years old, convictions for common assault and assault occasioning actual bodily harm from 2006, and the issuance of an apprehended violence order for two years. The court also considered the onus of proof in a review under section 27 of the Act, which requires the applicant to demonstrate that the decision was not the correct or preferable one.
The court found that the Guardian's decision was indeed the correct and preferable one. It concluded that the applicant posed a real and appreciable risk to the safety of children, given the history of violent conduct and the seriousness of the offences, even though the applicant was acquitted of the recent charges. The court affirmed the Guardian's decision to refuse to grant the applicant a Working with Children Check clearance and dismissed the applicant's application for review.
The central legal issue before the court was whether the Guardian's decision to refuse clearance was justified, and specifically, whether the applicant posed a risk to the safety of children. The court examined the evidence, including the applicant's acquittal on two counts of aggravated indecent assault of a female victim under 16 years old, convictions for common assault and assault occasioning actual bodily harm from 2006, and the issuance of an apprehended violence order for two years. The court also considered the onus of proof in a review under section 27 of the Act, which requires the applicant to demonstrate that the decision was not the correct or preferable one.
The court found that the Guardian's decision was indeed the correct and preferable one. It concluded that the applicant posed a real and appreciable risk to the safety of children, given the history of violent conduct and the seriousness of the offences, even though the applicant was acquitted of the recent charges. The court affirmed the Guardian's decision to refuse to grant the applicant a Working with Children Check clearance and dismissed the applicant's application for review.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 15 January 2015 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 25 February 2015 is otherwise refused and dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.