AZY v Children's Guardian [2013] NSWADT 301

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AZY v Children's Guardian [2013] NSWADT 301 Hearing dates: 22 November 2013 Decision date: 22 November 2013 Jurisdiction: Community Services Division Before: Hon G Mullane, Judicial Member Decision: 1. The Tribunal declares that AZY is not to be treated as a disqualified person for purposes of the Child Protection (Working With Children) Act, 2012 in respect of the offence of "Assault with Act of Indecency" under the Crimes Act, 1900, S.61L for which he was convicted at Bankstown Local Court in 2002. 2. The Children's Guardian must grant AZY a Working With Children Clearance. Catchwords: Working With Children - disqualifying conviction - Enabling Order Legislation Cited: Child Protection (Working With Children) Act, 2012 Adoption Act, 2000 Child Protection (Prohibited Employment) Act 1998 Cases Cited: Commission for Children and Young People -v- V, [2002] NSWSC 949 Category: Principal judgment Parties: AZY (Applicant) Children's Guardian (Respondent) Representation: Counsel - D Ward (Respondent ) AZY (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 134024 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies

reasons for decision

INTRODUCTION 1On 4 May 2001 a vehicle belonging to the Applicant was involved in a motor vehicle accident. Police attended his home and arrested him for the purpose of a blood and urine test. He was accompanied by a friend. They had both been drinking alcohol. The Police took him to Bankstown Hospital for the test. When he walking into the Hospital, he was following one of the officers, a female. He pinched the female police officer on a buttock. He was charged with the offence of "Assault with Act of Indecency" and when the matter came to Court on 26 September 2002, he pleaded guilty and was convicted and sentenced to 150 hours of community service. He appealed against the severity of the sentence and on 21 October 2002, the District Court at Parramatta substituted for the sentence a Bond to be of good behaviour for 12 months with supervision by the NSW Probation Service. 2The Applicant has a niece who is 10 years of age. The niece was reared by her maternal grandparents, the parents of the Applicant. Because of declining capacity on the part of the grandparents, the niece was placed in the care of Barnado's Homes temporarily and on 11 November 2011 orders were made in the Bidura Children's Court allocating parental responsibility for the child to the Minister, Family & Community Services, until the niece obtains the age of 18 years. The placement by the Minister of the niece with Barnado's is until she turns 18. The Applicant has had ongoing involvement with his niece by visiting her when she was cared for by his parents and subsequently while she has been cared for by Barnado's. The Applicant and his wife have decided that they want to assume the care of the niece and she wishes to live with them. 3But under the Child Protection (Working With Children) Act, 2012 ("the Act"), the conviction in 2002 renders him a "disqualified person" to whom the Children's Guardian is prohibited from providing a Working With Children clearance. 4The Applicant has therefore applied to the Tribunal under ss.28(1) of the Act for an enabling Order declaring that he is not to be treated as a "disqualified person" in respect of that offence.