BKF v Children's Guardian

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BKF v Children’s Guardian [2016] NSWCATAD 283
Hearing dates:	28 January 2015 & 25 January 2016
Date of orders:	25 January 2016
Decision date:	25 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal Member
Decision:	(1)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. (2) The Children's Guardian must grant the applicant a Working With Children Check Clearance; and (3)The publication or broadcast of the name or other identifying information of the applicant or any victim of the offences of which he was convicted (or of any offences taken into account) by the Local Court when the conviction occurred, is prohibited.
Catchwords:	Working with children, disqualifying convictions for sexual assaults, enabling application, therapy, low risk, application granted.
Legislation Cited:	Child Protection (Working with Children) Act 2012; Child Protection Legislation Amendment Act 2015; Adoption Act, 2000; Child Protection (Prohibited Employment) Act, 1998
Cases Cited:	Commission For Children and Young People –v- V [2002] NSWSC 949.
Category:	Principal judgment
Parties:	BFK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Miller (Applicant) M Neville (Respondent) Solicitors: Bell Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410361
Publication restriction:	See Order 3.

rEASONS FOR DECISION

Introduction

1. The applicant was born in 1986.

2. In August 2011 he was convicted of 2 counts of "assault with act of indecency" under Section 61L of the Crimes Act 1900.

3. The offences were committed on 30 May 2010.

4. Under the Child Protection (Working With Children) Act 2012 ("The Act"), those convictions disqualified him from obtaining a Working With Children Check Clearance and the Act prohibited the Children's Guardian from granting such a clearance to him.

5. On 6 May 2014, the applicant applied to the Children's Guardian for a Working With Children Check Clearance. On 12 June 2014 the Children's Guardian refused the application and sent a letter that day notifying the applicant.

6. The applicant filed his application in the Tribunal seeking enabling orders so that he would not be treated as a disqualified person for purposes of the Act.

7. This was a hearing of that application for enabling orders.

The Evidence

8. The evidence comprised:

1. The application for enabling orders.

2. Section 31 Response from Australian College of Physical and Health Education of 12 September 2014;

3. Response from a Cricket Association of 25 September 2014;

4. Check Results Report from Crimtrac of 17 June 2014;

5. Records of Central Local Court relating to charges, convictions, and other matters taken into account;

6. Documents from Sex Crime Squad of NSW Police;

7. Documents from Department of Corrective Services;

8. Reports and other documents from Dr Sean Fraser (treating psychologist);

9. Documents provided from Police Force in response to request for AVO history of applicant;

10. Documents provided by Catholic Education Office;

11. Affidavit of B H, teacher;

12. Further…