BKV v Children’s Guardian [2015] NSWCATAD 65

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Review Act 1997(NSW) Administrative Decisions Tribunal Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and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 CLR 59 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BKV (Applicant) Children's Guardian (Respondent) Representation: Counsel: H Jewell (Applicant) G Moore (Respondent) Solicitors: Craig Milne & Company (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410397 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013-Restriction on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.