BHY v Children’s Guardian [2015] NSWCATAD 91

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BHY v Children's Guardian [2015] NSWCATAD 91 Hearing dates: 23 and 24 September 2014, 19 and 20 January 2015Last written submissions received 4 March 2015 Decision date: 07 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) The decision of the Children's Guardian dated 15 May 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 2 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 - allegations and investigations of multiple sexual and indecent assault incidents - sustained finding of sexual misconduct against a child and in the presence of a child reported - no criminal charges or convictions- where imposition of restrictions in relation to the applicant's work in a religious organisation to address risk management- counselling by psychologist to address and implement relapse prevention strategies in the context of denial- whether the strategies employed are sufficiently effective - 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 Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) Evidence Act 1995 (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 BHL v Children's Guardian [2015] NSWCATAD 46 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children's Guardian [2015] NSWCATAD 65 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BYR v Children's Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Collier v Director of Public Prosecutions (NSW) [2011] NSWCA 202 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 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 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 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIRComm 101 R v Paauwe [1971] 2 NSWLR 235 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BHY (Applicant) NSW Office of the Children's Guardian (Respondent) Representation: Counsel: S J McMahon (Applicant) M Higgins (Respondent) Solicitors: Crown Solicitors Office (Respondent) File Number(s): 1410280 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.