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

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BKE v Children’s Guardian (No. 2) [2016] NSWCATAD 22
Hearing dates: 26 August 2014 and 18 August 2015
Date of orders: 09 February 2016
Decision date: 09 February 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins - Principal Member
Decision:
The applicant’s application for an enabling order is refused.

Catchwords: ADMINISTRATIVE LAW – child protection – enabling order - working with children check clearance – disqualified person – disqualifying offence of buggery (1968) and carnal knowledge (1970) – subsequent offences including offences of violence – no offending for 20 years – applicant charged with offence of indecent assault of grandson – charge dismissed – whether the applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus not discharged
Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Commission for Children and Young People Act 1998
Crimes Act 1900
Cases Cited: BKE v Children’s Guardian [2015] NSWSC 523
BKE v Children’s Guardian [2015] NSWCATAD 185
Commission for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
M v M [1988] HCA 68, 166 CLR 69
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Category: Principal judgment
Parties: BKE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
L Andleman (Applicant)
P Lowson (Respondent)
Solicitors:
Legal Aid (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510241
Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the Tribunal.

REASON FOR DECISION

Introduction

The applicant, BKE, has made an application for an enabling order under subs 28(1) of the Child Protection (Working with Children) Act 2012 (WWC Act) so that he can be granted a working with children check clearance (a clearance) under that Act. The applicant seeks a clearance as his wife is the “authorised carer” of their seventeen year old grandson within the meaning of s 137 of the Children and Young Person (Care and Protection) Act 1998 (CP Act). The grandson has been in the day-to-day care of the applicant and his wife since he was a small boy. The applicant’s wife was also the authorised carer of the grandson’s older brother who is now an adult.
Subs 10(1) of the WWC Act provides that “an adult person (other than an exempt person) who resides on the same property as an authorised carer … must hold a working with children check clearance (of any class) or have made a current application” to the respondent for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCATAD 22
Decision Date: 09 February 2016

CaseChat Overview and Summary

The case of BKE v Children's Guardian (No. 2) involved the applicant, BKE, seeking an enabling order to allow them to work with children. BKE had previously been disqualified from working with children due to a statutory presumption that they posed a risk to children's safety, based on past convictions for buggery and carnal knowledge. Although BKE had not engaged in any offending for 20 years, they were recently charged with indecent assault of their grandson, a charge that was subsequently dismissed. The court had to determine whether BKE had discharged the onus to rebut the statutory presumption that they posed a risk to the safety of children.

The primary legal issue was whether the applicant had successfully rebutted the statutory presumption that they posed a risk to the safety of children, thereby justifying the refusal of an enabling order. This required the court to consider the nature and recency of BKE's past convictions, the absence of any offending for two decades, and the circumstances surrounding the recent charge of indecent assault, which was dismissed. The court also needed to weigh the risk posed to children against the applicant's long period of non-offending and the lack of any recent convictions.

In its reasoning, the court noted that while BKE had not offended for 20 years and the recent charge was dismissed, the statutory presumption of risk had not been rebutted. The historical nature of the disqualifying offences, despite the absence of recent offending, was considered sufficient to maintain the presumption of risk. The court found that the applicant had not provided sufficient evidence or circumstances to overcome the statutory presumption that they posed a risk to the safety of children. Consequently, the application for an enabling order was refused.

The final orders of the court were that the applicant's application for an enabling order was refused. This decision upheld the statutory presumption that BKE posed a risk to the safety of children, based on the historical convictions and the lack of sufficient evidence to rebut this presumption.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BKE v Children’s Guardian (No. 2) [2016] NSWCATAD 22
Hearing dates:	26 August 2014 and 18 August 2015
Date of orders:	09 February 2016
Decision date:	09 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins - Principal Member
Decision:	The applicant’s application for an enabling order is refused.
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order - working with children check clearance – disqualified person – disqualifying offence of buggery (1968) and carnal knowledge (1970) – subsequent offences including offences of violence – no offending for 20 years – applicant charged with offence of indecent assault of grandson – charge dismissed – whether the applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus not discharged
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Commission for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	BKE v Children’s Guardian [2015] NSWSC 523 BKE v Children’s Guardian [2015] NSWCATAD 185 Commission for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 M v M [1988] HCA 68, 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Category:	Principal judgment
Parties:	BKE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Andleman (Applicant) P Lowson (Respondent) Solicitors: Legal Aid (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510241
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the Tribunal.