BQK v Children's Guardian [2015] NSWCATAD 265

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BQK v Children's Guardian [2015] NSWCATAD 265 Hearing dates: 21 May 2015, 6 October 2015 Date of orders: 15 December 2015 Decision date: 15 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson - Senior Member Decision: (1) The decision of the Children's Guardian dated 25 November 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed. (2) The application for appeal of the decision of the Children's Guardian and for an enabling order filed 23 December 2014 is otherwise refused and dismissed. Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- offence of indecent assault under section 61L of the Crimes Act 1900 (NSW) conviction confirmed on appeal to District Court on 8 July 1997– evidence of applicant rejected by Court –in 2009 when the daughter of the applicant was a child plea of guilty to common assault upon that child - pleas of guilty to common assault on both daughters of applicant in 2010 - risk assessment of psychiatrist– likelihood of repetition of disqualifying offence - whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence - onus of proof- onus of proof not discharged by applicant- enabling order refused. Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: 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 BHL v Children's Guardian [2015] NSWCATAD 46 BKE v Office of the Children's Guardian [2015] NSWSC 523 BKN v Children's Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children's Guardian [2015] NSWCATAD 65 BLD v Children's Guardian [2015] NSWCATAD 2 BPA v Children's Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 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 Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 R v Commission for Children and Young People [2002] NSWIR Comm 101 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Category: Principal judgment Parties: BQK (Applicant) Children's Guardian (Respondent) Representation: Counsel: D Randle (Applicant) D Ward (Respondent)