BKP v Children's Guardian [2014] NSWCATAD 207

BKP v Children's Guardian [2014] NSWCATAD 207

Having regard to the required considerations in section 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal found that the applicant had not rebutted the presumption in section 28(7). The offence was serious, occurred in the context of a trusted teacher-former student relationship, less than a year had passed, the applicant minimised or denied the offending despite his guilty plea, failed to disclose the 2002 disciplinary complaint to the psychiatrist, and the psychiatric risk evidence was diminished in weight. The applicant therefore failed to prove that he was not a risk to the safety of children, so an enabling order could not be made.

Jurisdiction
Australia
Judgment Date
28 November 2014
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 / Principal Judgment After Hearing
Outcome
Application refused and dismissed.
Legal Topics
['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'onus of Proof' 'assault With Act of Indecency']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'onus of Proof' 'assault With Act of Indecency']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant had rebutted the statutory presumption under section 28(7) of the Child Protection (Working with Children) Act 2012 that he poses a risk to the safety of children.' 'Whether an enabling order should be made declaring that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012.']

Ratio Decidendi

Having regard to the required considerations in section 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal found that the applicant had not rebutted the presumption in section 28(7). The offence was serious, occurred in the context of a trusted teacher-former student relationship, less than a year had passed, the applicant minimised or denied the offending despite his guilty plea, failed to disclose the 2002 disciplinary complaint to the psychiatrist, and the psychiatric risk evidence was diminished in weight. The applicant therefore failed to prove that he was not a risk to the safety of children, so an enabling order could not be made.

Court Disposition

Application refused and dismissed.

Orders

  • ['The application filed 23 July 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.']