Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BKV v Children’s Guardian [2015] NSWCATAD 65 Hearing dates: 24 October 2014 Decision date: 09 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Andrews, Senior Member on 24 October 2014
M W Anderson, Senior Member (replacement pursuant to Section 52 Civil and Administrative Tribunal Act 2013)Decision: (1) The decision of the Children's Guardian dated 14 July 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed.
(2) The application for review of the decision of the Children's Guardian filed 29 July 2014 is otherwise refused and dismissed.Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-refusal of working with children check clearance- what the correct and preferable decision is having regard to the material before the Tribunal- whether the applicant poses a risk to the safety of children- eleven charges under section 66C Crimes Act 1900 (NSW)- acquittal by jury and costs awarded- use of transcript of evidence of victim in third trial (due to two previously aborted trials)- victim was aged 13 and the applicant 34 at the time of the alleged offences- victim alleged consensual sexual intercourse occurred 60 to 90 times during an 18 month to 24 month period- use of a costs judgment in assessment of risk- where applicant issued a certificate that he was not prohibited from child-related employment in 2012- weight given to risk assessment when no conviction or admissions- definition of "child abuse" considered- onus of proof in a review under section 27- a real and appreciable risk is posed by the applicant to the safety of children. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Administrative Decisions Tribunal Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Costs in Criminal Cases Act 1967 (NSW)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children's Guardian [2014] NSWCATAD 115
BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011]NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA 68; 166…
Keep reading for free
Create a free CaseChat account to read BKV v Children's Guardian and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2015] NSWCATAD 65
- Decision Date
CaseChat Overview and Summary
The case of BKV v Children's Guardian involved the applicant, BKV, who sought to overturn the Children's Guardian's refusal to grant him a Working with Children check clearance under the Child Protection (Working with Children) Act 2012 (NSW). This refusal was based on the Guardian's assessment that BKV posed a risk to the safety of children. BKV had been acquitted of eleven charges under the Crimes Act 1900 (NSW), related to an alleged consensual sexual relationship with a 13-year-old girl when he was 34. The Supreme Court of New South Wales was tasked with reviewing the decision of the Guardian.
The legal issues before the court included determining the correct and preferable decision, considering the material presented to the Tribunal, and assessing whether BKV indeed posed a risk to the safety of children. The court also had to consider the implications of using the transcript of the victim's evidence from the third trial, given the two previous trials had been aborted. Additionally, the court examined the weight to be given to the risk assessment in the absence of a conviction or admissions by BKV, and the definition of "child abuse" within the context of the legislation.
The court found that the Guardian's decision was correct and preferable, based on the material before the Tribunal. Despite BKV's acquittal, the court concluded that there was a real and appreciable risk that he posed to the safety of children. The court emphasised that in reviews under section 27 of the Act, the onus of proof was on BKV to demonstrate that he did not pose such a risk. The court also considered the use of the costs judgment in the assessment of risk, as well as BKV's certificate from 2012 stating he was not prohibited from child-related employment. Ultimately, the court affirmed the Children's Guardian's decision to refuse BKV's Working with Children check clearance.
The final orders of the court were to affirm the Children's Guardian's decision dated 14 July 2014, and to refuse and dismiss the application for review filed by BKV on 29 July 2014.
The legal issues before the court included determining the correct and preferable decision, considering the material presented to the Tribunal, and assessing whether BKV indeed posed a risk to the safety of children. The court also had to consider the implications of using the transcript of the victim's evidence from the third trial, given the two previous trials had been aborted. Additionally, the court examined the weight to be given to the risk assessment in the absence of a conviction or admissions by BKV, and the definition of "child abuse" within the context of the legislation.
The court found that the Guardian's decision was correct and preferable, based on the material before the Tribunal. Despite BKV's acquittal, the court concluded that there was a real and appreciable risk that he posed to the safety of children. The court emphasised that in reviews under section 27 of the Act, the onus of proof was on BKV to demonstrate that he did not pose such a risk. The court also considered the use of the costs judgment in the assessment of risk, as well as BKV's certificate from 2012 stating he was not prohibited from child-related employment. Ultimately, the court affirmed the Children's Guardian's decision to refuse BKV's Working with Children check clearance.
The final orders of the court were to affirm the Children's Guardian's decision dated 14 July 2014, and to refuse and dismiss the application for review filed by BKV on 29 July 2014.
Orders
Orders of the court
(1) The decision of the Children's Guardian dated 14 July 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed.
(2) The application for review of the decision of the Children's Guardian filed 29 July 2014 is otherwise refused and dismissed.
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.