BKE v Children’s Guardian (No. 2) [2016] NSWCATAD 22

BKE v Children’s Guardian (No. 2) [2016] NSWCATAD 22

The applicant failed to rebut the statutory presumption that he poses a real and appreciable risk to the safety of children generally. Although the disqualifying offences were very old, the likelihood of repetition was relatively or moderately low, and the Tribunal was not satisfied that the applicant intended to indecently assault his grandson in 2000, the seriousness of the 1968 buggery offence against a very young child, the applicant's history of violent offending, the concerning circumstances of the 2000 incident, and his continuing lack of insight into his offending conduct and its impact on children meant that the onus in subs 28(7) was not discharged.

Jurisdiction
Australia
Judgment Date
09 February 2016
Procedural Posture
Application for an Enabling Order Under Subs 28(1) of the Child Protection (working With Children) Act 2012 So the Applicant Can Be Granted a Working With Children Check Clearance. / Rehearing by the Tribunal After the Supreme Court Set Aside the Earlier Tribunal Decision and Ordered That the Application Be Reheard According to Law.
Outcome
The applicant's application for an enabling order is refused.
Legal Topics
['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'disqualifying Offences' 'risk to the Safety of Children' 'statutory Presumption' 'child Related Work']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'disqualifying Offences' 'risk to the Safety of Children' 'statutory Presumption' 'child Related Work']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for an Enabling Order Under Subs 28(1) of the Child Protection (working With Children) Act 2012 So the Applicant Can Be Granted a Working With Children Check Clearance. / Rehearing by the Tribunal After the Supreme Court Set Aside the Earlier Tribunal Decision and Ordered That the Application Be Reheard According to Law.

Legal Issues

  1. 1 ['Whether the applicant discharged his onus under subs 28(7) of the Child Protection (Working with Children) Act 2012 to rebut the statutory presumption that he poses a risk to the safety of children.' 'Whether the circumstances of the 2000 indecent assault charge, which was dismissed, affected the risk assessment.' "How the factors in subs 30(1) of the Child Protection (Working with Children) Act 2012 applied to the applicant's disqualifying offences, criminal history, age, conduct since offending and insight."]

Ratio Decidendi

The applicant failed to rebut the statutory presumption that he poses a real and appreciable risk to the safety of children generally. Although the disqualifying offences were very old, the likelihood of repetition was relatively or moderately low, and the Tribunal was not satisfied that the applicant intended to indecently assault his grandson in 2000, the seriousness of the 1968 buggery offence against a very young child, the applicant's history of violent offending, the concerning circumstances of the 2000 incident, and his continuing lack of insight into his offending conduct and its impact on children meant that the onus in subs 28(7) was not discharged.

Court Disposition

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

Orders

  • ["The applicant's application for an enabling order is refused."]