FFB v Children’s Guardian [2022] NSWCATAD 71

FFB v Children’s Guardian [2022] NSWCATAD 71

The applicant rebutted the statutory presumption that he posed a risk to the safety of children. Although the disqualifying offence was serious, no child was involved, the applicant had no other criminal history, admitted the offence and pleaded guilty, expressed remorse and insight, continued counselling, and expert evidence assessed no real and appreciable risk to children and a low risk of sexual reoffending. The Tribunal was also satisfied that a reasonable person would allow unsupervised direct contact with the applicant in child-related work and that making the enabling order was in the public interest. It was therefore appropriate to make an enabling order, set aside the...

Jurisdiction
Australia
Judgment Date
02 March 2022
Procedural Posture
Administrative Law Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) / Determination by the Civil and Administrative Tribunal of New South Wales, Administrative and Equal Opportunity Division
Outcome
Application granted; enabling order made; decision cancelling the applicant's working with children check clearance set aside; Children's Guardian ordered to grant a clearance forthwith.
Legal Topics
['enabling Order' 'disqualified Person' 'working With Children Check Clearance' 'risk to the Safety of Children' 'cancellation of Clearance']
['administrative Law' 'child Protection' 'working With Children Checks'] ['enabling Order' 'disqualified Person' 'working With Children Check Clearance' 'risk to the Safety of Children' 'cancellation of Clearance']

Case Brief

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Procedural Posture

Administrative Law Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) / Determination by the Civil and Administrative Tribunal of New South Wales, Administrative and Equal Opportunity Division

Legal Issues

  1. 1 ['Whether the applicant should be declared not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the disqualifying offence.' 'Whether the applicant rebutted the presumption under s 28(7) of the Child Protection (Working with Children) Act 2012 (NSW) that he poses a risk to the safety of children.' 'Whether the reasonable person test and public interest test in s 30(1A) of the Child Protection (Working with Children) Act 2012 (NSW) were satisfied.' "Whether the Children's Guardian's decision cancelling the applicant's working with children check clearance should be set aside and a clearance granted."]

Ratio Decidendi

The applicant rebutted the statutory presumption that he posed a risk to the safety of children. Although the disqualifying offence was serious, no child was involved, the applicant had no other criminal history, admitted the offence and pleaded guilty, expressed remorse and insight, continued counselling, and expert evidence assessed no real and appreciable risk to children and a low risk of sexual reoffending. The Tribunal was also satisfied that a reasonable person would allow unsupervised direct contact with the applicant in child-related work and that making the enabling order was in the public interest. It was therefore appropriate to make an enabling order, set aside the...

Court Disposition

Application granted; enabling order made; decision cancelling the applicant's working with children check clearance set aside; Children's Guardian ordered to grant a clearance forthwith.

Orders

  • ['The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the disqualifying offence of filming a person engaged in a private act without consent being a criminal offence under s 91K(1) of the Crimes Act 1900 (NSW) in...