Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CFT v Children's Guardian (No 2) [2016] NSWCATAD 221 Hearing dates: 9 June 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member
Prof P Foreman, General MemberDecision: (1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 30 October 2015 is refused and dismissed.
Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under section 18 of the Crimes Act 1900 (NSW) for murder conviction and sentenced to a minimum term of 16 years and an additional term of 5 years 6 months imprisonment – appeal against conviction dismissed and leave to appeal sentence refused - released on parole on 28 July 2015 - balance of additional term to expire on 22 November 2020- assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence - onus of proof- onus of proof not discharged by applicant- enabling order refused. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (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
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] NSWSC 1602
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
Children’s Guardian v BQJ [2016] NSWSC 869
CFT v Children’s Guardian [2016] NSWCATAD 92
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
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Details
- Case
- [2016] NSWCATAD 221
- Decision Date
CaseChat Overview and Summary
The case of CFT v Children's Guardian (No 2) involved the applicant, who had previously been convicted of murder and sentenced to 16 years imprisonment with an additional term of 5 years 6 months, released on parole on 28 July 2015. The applicant applied for a Working with Children check clearance by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The applicant's release on parole and the balance of their additional term of imprisonment expiring on 22 November 2020 were key facts in the case. The dispute centred on the assessment of the risk the applicant posed to the safety of children and whether the applicant had proven they were no longer a risk.
The legal issues before the court were whether the applicant had discharged the onus of proof to show they were not a risk to the safety of children, and whether the Tribunal was bound by the rules of evidence in this case. The court examined the relevant statutory provisions and case law to determine the appropriate burden of proof and whether the Tribunal could consider evidence outside the rules of evidence. The applicant argued that the risk they posed to children had been sufficiently mitigated by their release on parole and the expiry of their additional term of imprisonment. The Children's Guardian opposed the application, arguing that the applicant had not discharged the onus of proof to show they were not a risk to children's safety.
The court found that the applicant had not discharged the onus of proof to show they were not a risk to children's safety. The court held that the Tribunal was not bound by the rules of evidence in this case, but that the onus of proof remained on the applicant to demonstrate they were no longer a risk. The court found that the applicant's release on parole and the expiry of their additional term of imprisonment did not necessarily mean that the risk they posed to children had been sufficiently mitigated. The court found that the applicant had not provided sufficient evidence to demonstrate they were no longer a risk to children's safety, and that the application for an enabling order should be refused. The court dismissed the application and made an order to that effect.
The legal issues before the court were whether the applicant had discharged the onus of proof to show they were not a risk to the safety of children, and whether the Tribunal was bound by the rules of evidence in this case. The court examined the relevant statutory provisions and case law to determine the appropriate burden of proof and whether the Tribunal could consider evidence outside the rules of evidence. The applicant argued that the risk they posed to children had been sufficiently mitigated by their release on parole and the expiry of their additional term of imprisonment. The Children's Guardian opposed the application, arguing that the applicant had not discharged the onus of proof to show they were not a risk to children's safety.
The court found that the applicant had not discharged the onus of proof to show they were not a risk to children's safety. The court held that the Tribunal was not bound by the rules of evidence in this case, but that the onus of proof remained on the applicant to demonstrate they were no longer a risk. The court found that the applicant's release on parole and the expiry of their additional term of imprisonment did not necessarily mean that the risk they posed to children had been sufficiently mitigated. The court found that the applicant had not provided sufficient evidence to demonstrate they were no longer a risk to children's safety, and that the application for an enabling order should be refused. The court dismissed the application and made an order to that effect.
Orders
Orders of the court
(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 30 October 2015 is 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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