BJA v The Children's Guardian [2014] NSWCATAD 191

BJA v The Children's Guardian [2014] NSWCATAD 191

The Tribunal had jurisdiction because the applicant was an authorised carer of BNX, for whom the NSW Minister retained parental responsibility and whose case remained managed from NSW, creating a sufficient connection for the Child Protection (Working with Children) Act 2012 to apply. On the merits, the applicant...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 November 2014
Procedural Posture
Application for an Enabling Order Under Subsection 28(1) of the Child Protection (working With Children) Act 2012 / Determination After Hearing
Outcome
The applicant's application for an enabling order is granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'enabling Order' 'risk to the Safety of Children' 'extraterritorial Application of State Legislation']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'enabling Order' 'risk to the Safety of Children' 'extraterritorial Application of State Legislation']

Source-derived case record

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Procedural Posture

Application for an Enabling Order Under Subsection 28(1) of the Child Protection (working With Children) Act 2012 / Determination After Hearing

Legal Issues

  1. 1 ["Whether the Children's Guardian was empowered to require the applicant to obtain a working with children clearance check where the applicant and the child lived in Queensland but the NSW Minister retained parental responsibility and case management remained in NSW." 'Whether the Tribunal had jurisdiction to hear and determine the application.' 'Whether the applicant discharged the onus under subsection 28(7) of the Child Protection (Working with Children) Act 2012 to prove that he did not pose a risk to the safety of children.' "What weight should be given to the applicant's historical convictions and later allegations of sexual or physical misconduct."]

Ratio Decidendi

The Tribunal had jurisdiction because the applicant was an authorised carer of BNX, for whom the NSW Minister retained parental responsibility and whose case remained managed from NSW, creating a sufficient connection for the Child Protection (Working with Children) Act 2012 to apply. On the merits, the applicant discharged the onus under subsection 28(7): the index offence occurred more than 40 years earlier, his last conviction was in 1976, expert evidence assessed his risk of sexual harm to young people as low, the 1995 allegation was given little weight, the allegations concerning BNW were given no weight, and the allegations concerning BNX were given limited weight. The Tribunal was...

Court Disposition

The applicant's application for an enabling order is granted.

Orders

  • ['The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of carnal knowledge for which he was convicted on 3 November 1972.' "Pursuant to subs 28(6) of the Child Protection (Working with...