BFH v Children's Guardian [2014] NSWCATAD 206

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BFH v Children's Guardian [2014] NSWCATAD 206 Hearing dates: 23 April 2014 Decision date: 23 April 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: L Goodchild, Judicial Member Decision: 1 Application dismissed. Catchwords: Working With Children clearance - Disqualifying Conviction - Enabling Order - presumed to be at risk to children - whether applicant has proven to the contrary Legislation Cited: Children Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Administrative Decision Tribunal Act 1997 Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSW 949; 56 NSWLR 476. Category: Principal judgment Parties: BRH (Applicant) Children's Guardian (Respondent) File Number(s): 1410084 Publication restriction: S64 of the NSW Civil and Administrative Decisions Tribunal Act 2013 applies.

REASONS FOR DECISION 1The applicant, "BFH" is a "disqualified person" under s.18(1) of the Child Protection (Working with Children) Act 2012 ("the Act"). 2"BFH" seeks an enabling order pursuant to s.28 of the Act, declaring that he not be treated as a "disqualified person" so as to be granted a clearance to work engage in child related work. 3BFH is a disqualified person by reason of his convictions, in 1986, for the following offences: Indecent Assault (2 counts) and Sexual Intercourse Without Consent (See Clause 1(e) of Schedule 2 of the Act). 4The applicant bears the onus under the Act. Given the nature of the offences for which he was convicted the presumption is that he poses a risk to children. He therefore bears the onus of satisfying the Tribunal that he does not pose a risk to children. 5At the time of the offences the applicant was twenty-one years of age. The Court imposed sentences of imprisonment suspended on entering into a good behaviour bonds for the offences. Today he is unemployed and in receipt of a disability pension. He aspires to continue his study of theology - which he started this year - with the intention of becoming a Minister of Religion in a congregation. 6Section 6(2)(j) of the Act and Clause 13 of the Child Protection (Working With Children) Regulation 2013 operate to provide that work as a Minister for a religious organisation, where children form part of the congregation is "child related work". Accordingly, to pursue his intended vocation, he is required to obtain clearance to continue with that sort of work. 7BFH made an application to the Children's Guardian pursuant to s.13 of the Act. On 22 January 2014, the Children's Guardian did not grant a clearance and provided a notice of disqualification with respect to that application. 8On 20 February 2014, the applicant applied to this tribunal for the enabling order. 9At the hearing, the respondent Children's Guardian opposed the applicant's application.