FCM v Children’s Guardian [2023] NSWCATAD 35

FCM v Children’s Guardian [2023] NSWCATAD 35

The Tribunal was not positively satisfied that the alleged sexual misconduct occurred, given competing accounts, allegations of payback and concoction, recanted or unsupported evidence, contrary evidence from FCM and his sister, and weak factual foundations. Taking the allegations into account, the Tribunal found that the alleged conduct was remote in time, that FCM had no relevant criminal convictions or Apprehended Violence Orders since, that his prior physical violence was confined to a dysfunctional family context and had not continued, that he had a stable family life and community support, and that there was no real and appreciable risk to the safety of children. The Tribunal was...

Jurisdiction
Australia
Judgment Date
10 February 2023
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance Under Section 27 of the Child Protection (working With Children) Act 2012 / Final Decision After Hearing
Outcome
The decision of the Children's Guardian dated 26 August 2021 to refuse to grant FCM a Working with Children Check Clearance was set aside, and FCM was granted a Working with Children Check Clearance.
Legal Topics
['working With Children Check Clearance' 'risk to the Safety of Children' 'administrative Review' 'non Publication Order' 'historical Sexual Misconduct Allegations']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'risk to the Safety of Children' 'administrative Review' 'non Publication Order' 'historical Sexual Misconduct Allegations']

Case Brief

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance Under Section 27 of the Child Protection (working With Children) Act 2012 / Final Decision After Hearing

Legal Issues

  1. 1 ["Whether the Children's Guardian's decision dated 26 August 2021 refusing to grant FCM a Working with Children Check Clearance should be affirmed or set aside." 'Whether, on the evidence, FCM poses a risk to the safety of children.' 'Whether a reasonable person would allow his or her child to have direct contact with FCM not directly supervised while FCM was engaged in child-related work.' 'Whether it is in the public interest to grant FCM a Working with Children Check Clearance.']

Ratio Decidendi

The Tribunal was not positively satisfied that the alleged sexual misconduct occurred, given competing accounts, allegations of payback and concoction, recanted or unsupported evidence, contrary evidence from FCM and his sister, and weak factual foundations. Taking the allegations into account, the Tribunal found that the alleged conduct was remote in time, that FCM had no relevant criminal convictions or Apprehended Violence Orders since, that his prior physical violence was confined to a dysfunctional family context and had not continued, that he had a stable family life and community support, and that there was no real and appreciable risk to the safety of children. The Tribunal was...

Court Disposition

The decision of the Children's Guardian dated 26 August 2021 to refuse to grant FCM a Working with Children Check Clearance was set aside, and FCM was granted a Working with Children Check Clearance.

Orders

  • ['The decision of the Respondent dated 26 August 2021 to refuse to grant the Applicant a Working with Children Check Clearance is set aside.' 'In substitution, the following decision is made: the Respondent is to grant the Applicant a Working with Children Check Clearance.']