BKF v Children’s Guardian [2016] NSWCATAD 283

BKF v Children’s Guardian [2016] NSWCATAD 283

Although the applicant's indecent assault offences were serious and involved vulnerable sleeping adult victims, the evidence showed no other criminal or misconduct history, completion of sentence requirements, sincere remorse, engagement in therapy, addressed risk factors including alcohol use and relationship functioning, and expert psychiatric assessment reducing his sexual reoffending risk to the low range. Applying the Act and the real and appreciable risk test, the Tribunal concluded that the applicant did not pose a real and appreciable risk to the safety of children and enabling orders should be made.

Jurisdiction
Australia
Judgment Date
25 January 2016
Procedural Posture
Application for Enabling Orders Under the Child Protection (working With Children) Act 2012 / Hearing of Application After Refusal of Working With Children Check Clearance
Outcome
Application granted; enabling orders made.
Legal Topics
['disqualified Person' 'enabling Order' 'working With Children Check Clearance' 'sexual Assault Convictions' 'risk to Safety of Children']
['administrative Law' 'child Protection' 'working With Children Checks'] ['disqualified Person' 'enabling Order' 'working With Children Check Clearance' 'sexual Assault Convictions' 'risk to Safety of Children']

Case Brief

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Procedural Posture

Application for Enabling Orders Under the Child Protection (working With Children) Act 2012 / Hearing of Application After Refusal of Working With Children Check Clearance

Legal Issues

  1. 1 ['Whether the applicant should be declared not to be treated as a disqualified person for purposes of the Child Protection (Working With Children) Act 2012 in respect of his convictions for assault with act of indecency.' 'Whether the applicant proved, contrary to the statutory presumption, that he did not pose a risk to the safety of children.' "Whether the Children's Guardian should be ordered to grant the applicant a Working With Children Check Clearance."]

Ratio Decidendi

Although the applicant's indecent assault offences were serious and involved vulnerable sleeping adult victims, the evidence showed no other criminal or misconduct history, completion of sentence requirements, sincere remorse, engagement in therapy, addressed risk factors including alcohol use and relationship functioning, and expert psychiatric assessment reducing his sexual reoffending risk to the low range. Applying the Act and the real and appreciable risk test, the Tribunal concluded that the applicant did not pose a real and appreciable risk to the safety of children and enabling orders should be made.

Court Disposition

Application granted; enabling orders made.

Orders

  • ['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 offences of "Assault With act of Indecency" of which he was convicted by the Local Court Downing Centre in August 2011.' "The Children's Guardian must grant the...