FBL v Children’s Guardian [2022] NSWCATAD 62

FBL v Children’s Guardian [2022] NSWCATAD 62

The applicant discharged the onus under section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW). Although the disqualifying manslaughter offences were very serious, they occurred approximately 37 years earlier, the applicant was 26 at the time and 63 at the hearing, he did not physically participate in the violence, had no relevant further offending or adverse child protection, violence or sexual offence records, had demonstrated rehabilitation and stable conduct, and the likelihood of repetition was low. On the balance of probabilities he did not pose a real and appreciable risk to the safety of children. The Tribunal was also satisfied that a reasonable person with...

Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) and Extension of Time / Determined on the Papers; Requirement of a Hearing Dispensed With Under S 50(2) of the Civil and Administrative Tribunal Act 2013 (nsw)
Outcome
Application granted; time extended; enabling order made; Children's Guardian ordered to grant a Working with Children Check clearance forthwith.
Legal Topics
['enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'manslaughter of a Child as Disqualifying Offence' 'extension of Time' 'reasonable Person Test' 'public Interest']
['administrative Law' 'child Protection' 'working With Children Checks'] ['enabling Order' 'disqualified Person' 'risk to the Safety of Children' 'manslaughter of a Child as Disqualifying Offence' 'extension of Time' 'reasonable Person Test' 'public Interest']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) and Extension of Time / Determined on the Papers; Requirement of a Hearing Dispensed With Under S 50(2) of the Civil and Administrative Tribunal Act 2013 (nsw)

Legal Issues

  1. 1 ['Whether time to bring the application should be extended to 29 July 2021.' 'Whether the applicant rebutted the presumption under section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW) that he posed a risk to the safety of children.' 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while engaged in child-related work.' "Whether it was in the public interest to make an enabling order and require the Children's Guardian to grant a Working with Children Check clearance."]

Ratio Decidendi

The applicant discharged the onus under section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW). Although the disqualifying manslaughter offences were very serious, they occurred approximately 37 years earlier, the applicant was 26 at the time and 63 at the hearing, he did not physically participate in the violence, had no relevant further offending or adverse child protection, violence or sexual offence records, had demonstrated rehabilitation and stable conduct, and the likelihood of repetition was low. On the balance of probabilities he did not pose a real and appreciable risk to the safety of children. The Tribunal was also satisfied that a reasonable person with...

Court Disposition

Application granted; time extended; enabling order made; Children's Guardian ordered to grant a Working with Children Check clearance forthwith.

Orders

  • ['The time to bring the application is extended to 29 July 2021.' 'Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the requirement of a hearing is dispensed with. The matter is to be determined on the papers.' 'It is declared the applicant is not a disqualified person for the purposes of...