FBC v Children's Guardian

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FBC v Children's Guardian [2021] NSWCATAD 286
Hearing dates: 15, 16 December 2020
5 March 2021
19 April 2021
12 May 2021
Date of orders: 29 September 2021
Decision date: 29 September 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:

1) The decision of the Children’s Guardian on 18 December 2019 to refuse the Working with Children Check Clearance under section 18(2) of the Child Protection (Working with Children) Act 2012 is confirmed.

2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Catchwords:

ADMINISTRATIVE LAW-review under section 27(2) Child Protection (Working with Children) Act 2012- charges under section 61M(2) Crimes Act 1900 (NSW) commit an act of indecency with a person under the age of 16 years, and an attempt to commit an act of indecency with a person under the age of 16 years – DPP determines not to proceed with the charges and the criminal proceedings are then discontinued - Working With Children Check Clearance applied for by applicant in 2018 - refusal after risk assessment - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)

Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Children and Young Persons (Care and Protection) Act 1998(NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Interpretation Act 1987 (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

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

BKV v Children’s Guardian [2015] NSWCATAD 65

Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR…

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Details
Case
[2021] NSWCATAD 286
Decision Date

CaseChat Overview and Summary

The matter of FBC v Children's Guardian was brought before the court, where the applicant, FBC, sought judicial review of the Children's Guardian's refusal to grant a Working With Children Check Clearance. The Guardian had refused the clearance after conducting a risk assessment, concluding that there was an unacceptable risk of harm to children if the clearance was granted. The decision was grounded in the paramount concern of protecting children from child abuse. The applicant had previously been charged with committing an act of indecency with a person under 16 years and an attempt to commit such an act, charges that were subsequently discontinued by the Director of Public Prosecutions.

The legal issues central to the case were the standard of proof required in a review under section 27 of the Child Protection (Working with Children) Act 2012 and whether the Guardian's findings on the balance of probabilities could substantiate that the alleged events occurred, thereby justifying the refusal of clearance. Additionally, the court examined whether the applicant posed an unacceptable risk of harm, specifically a real and appreciable risk to the safety of children, which would warrant the refusal of the clearance.

The court found that the Children's Guardian had properly applied the legislative framework in reaching the decision to refuse the clearance. The court confirmed that the Guardian's findings were sufficient on the balance of probabilities, and there was evidence that the applicant posed an unacceptable risk to children. The court also emphasised the importance of protecting children from harm and the low threshold required to establish risk in this context. Consequently, the Guardian's decision was affirmed, and the applicant's application for review was dismissed.

The court also ordered that, with certain exceptions, the publication or broadcast of the names of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order ensures the privacy and protection of individuals involved in the case, aligning with the statutory provisions under the Civil and Administrative Tribunal Act 2013.

Orders

Orders of the court

1) The decision of the Children’s Guardian on 18 December 2019 to refuse the Working with Children Check Clearance under section 18(2) of the Child Protection (Working with Children) Act 2012 is confirmed.

2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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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