FDS v Children’s Guardian [2022] NSWCATAD 374

FDS v Children’s Guardian [2022] NSWCATAD 374

The applicant, although convicted of a disqualifying offence over 27 years ago not involving a child, presented an otherwise unblemished record, with no evidence of risk, adverse conduct, or issues relating to children since. The presumption of risk was rebutted, and the Tribunal determined he does not now present a real and appreciable risk to children; accordingly, an enabling order should be granted, and a Working with Children Clearance issued.

Parties
Applicant: FDS; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
21 November 2022
Procedural Posture
Administrative Review / Application for Enabling Order / Final Determination on the Papers
Outcome
Enabling order granted; Working with Children Check Clearance to issue.
Legal Topics
Working With Children Check, Disqualifying Offences, Enabling Order, Risk Assessment of Applicants, Onus of Proof in Child Safety Legislation
Administrative Law Child Protection Equal Opportunity Working With Children Check Disqualifying Offences Enabling Order Risk Assessment of Applicants Onus of Proof in Child Safety Legislation

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Parties

FDS

Applicant

Children's Guardian

Respondent

Procedural Posture

Administrative Review / Application for Enabling Order / Final Determination on the Papers

Legal Issues

  1. 1 Whether the applicant should be granted an enabling order under s 28 of the Child Protection (Working with Children) Act 2012
  2. 2 Whether the applicant poses a real and appreciable risk to the safety and well-being of children

Ratio Decidendi

The applicant, although convicted of a disqualifying offence over 27 years ago not involving a child, presented an otherwise unblemished record, with no evidence of risk, adverse conduct, or issues relating to children since. The presumption of risk was rebutted, and the Tribunal determined he does not now present a real and appreciable risk to children; accordingly, an enabling order should be granted, and a Working with Children Clearance issued.

Court Disposition

Enabling order granted; Working with Children Check Clearance to issue.

Orders

  • A hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
  • The applicant is not to be treated as a disqualified person for the offence in respect of s 61L of the Crimes Act 1900 (NSW) for which he was convicted.