BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 Hearing dates: 1, 2 September 2014 Decision date: 07 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: (1) The decision of the Children's Guardian dated 2 June 2014 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 4 June 2014 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- multiple historical offences of violence against women in the presence of children- definition of "child abuse" considered- onus of proof in a review under section 27- a real and appreciable risk is posed by the applicant to the safety of children. Legislation Cited: Administrative Decisions Review Act 1987(NSW) Administrative Decisions Tribunal Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and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) Commission for Children and Young People Act 1998 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian [2014] NSWCATAD 111 BYR v Children's Guardian [2013] NSWADT 310 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 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 59 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 Roberts v Balancio (1987) 8 NSWLR 436 Category: Principal judgment Parties: BJB (Applicant) NSW Office of the Children's Guardian (Respondent) Representation: Counsel P Braine (Applicant) V Hartstein (Respondent) Solicitors K Renshall (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1410285 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013-Restriction on publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.