BXT v Children's Guardian [2016] NSWCATAD 25

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BXT v Children's Guardian [2016] NSWCATAD 25 Hearing dates: 22 September 2015 Date of orders: 11 February 2016 Decision date: 11 February 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Dr B Field,General Member Decision: 1) The decision of the Children's Guardian dated 9 March 2015 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 10 June 2015 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 –the applicant on 3 August 2009 was convicted in respect of common assault by driving in his van behind a victim walking to the victim's vehicle punched the victim through the open window who found a folded up "lock knife" in his lap after the applicant walked away - the applicant was convicted of assault occasioning actual bodily harm on 21 October 2013 and sentenced to a supervised section 9 bond Crimes (Administration of Sentences) Act 1999 to be of good behaviour for 3 years and also sentenced in relation to an offence of drive vehicle in a menacing manner with intent to menace- applicant rammed the victim's vehicle from behind on 2 occasions - applicant wielded a small baseball bat, swung twice, hitting the victim on the forehead who suffered bruising to his face, eyes and forehead - applicant was convicted for assault occasioning actual bodily harm on 9 April 2014 and a bond required interventions concerning anger management - offences are all serious and reflect a pattern of behaviour which has little regard for the safety and rights of others - onus of proof in a review under section 27 – a real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to refuse to grant a working with children clearance and affirm the decision of the Children's Guardian. Legislation Cited: Administrative Decisions Review Act 1997(NSW) 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) Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 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 BHY v Children's Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 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 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children's Guardian [2015] NSWCATAD 36 BPX v Children's Guardian [2015] NSWCATAD 114 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 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 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 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Gallo v Dawson [1990] HCA 30, 93 ALR 479 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 M v M [1988] HCA 68; 166 CLR 69 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 Nanschild v Pratt [2011] NSWCA 85 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 R v Commission for Children and Young People [2002] NSWIRComm 101 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BXT (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent)