BKD v Children’s Guardian [2021] NSWCATAD 303

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BKD v Children's Guardian [2021] NSWCATAD 303 Hearing dates: 25 May 2021 Date of orders: 21 October 2021 Decision date: 21 October 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member M Bolt, General Member Decision: (1) The decision of the respondent dated 2 September 2020 to refuse the applicant's Working With Children Check Clearance is affirmed. (2) The application is dismissed. Catchwords: ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – whether reasonable person would allow unsupervised access to their child Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Children's Guardian v CKF [2017] NSWSC 893 Children's Guardian v CXZ [2019] NSWSC 1083 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CSW v Children's Guardian [2017] NSWCATAD 326 CXZ v Children's Guardian [2020] NSWCA 338 M v M (1988) 166 CLR (HCA) Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Category: Principal judgment Parties: BKD (Applicant) Children's Guardian (Respondent) Representation: Counsel: P Lowson (Respondent)