FBC v Children's Guardian [2021] NSWCATAD 286

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 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Browne v Dunn (1893) 6 R 67 (HL) BYR v Children's Guardian [2013] NSWADT 310 BZU v Children's Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 CGR v Office of Children's Guardian [2018] NSWSC 26 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BQJ [2016] NSWSC 869 Children's Guardian v CFW [2016] NSWSC 1406 Children's Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children's Guardian [2016] NSWSC 738 CLK v Children's Guardian [2016] NSWCATAD 183 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v VR [2012] NSWSC 1385 CSZ v Children's Guardian [2017] NSWCATAD 57 CXZ v Children's Guardian [2020] NSWCA 338 Deiter & Deiter [2011] FamCAFC 82 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 GR v Department of Communities and Justice [2021] NSWSC 1081 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re A Solicitor's Clerk [1957] 1 WLR 1219 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Robertson v City of Nunawading [1973] VR 819 Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: FBC (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Windsor SC with M Darian-Smith (Applicant) V Hartstein (Respondent)