FHV v Children’s Guardian [2023] NSWCATAD 246

FHV v Children’s Guardian [2023] NSWCATAD 246

The applicant failed to rebut the statutory presumption that he posed a risk to the safety of children. Although his offending was not targeted at children and there had been no further offending since 2018, the Tribunal found that he was indifferent to who witnessed his public sexualised conduct, lacked insight into the underlying cause of his offending, had not addressed his pornography use, faced a significant risk of further offending without relevant ongoing treatment, and had not engaged in such treatment. Having regard to the paramount consideration of child safety, the factors against the applicant outweighed those in his favour, requiring dismissal of the enabling order application.

Jurisdiction
Australia
Judgment Date
14 September 2023
Procedural Posture
Application for an Enabling Order Following Refusal of a Working With Children Check Clearance / Final Decision After Hearing
Outcome
The applicant's application for an enabling order was dismissed.
Legal Topics
['refusal of Working With Children Check Clearance' 'disqualifying Offence' 'enabling Order' 'risk to the Safety of Children' 'reasonable Person Test' 'public Interest Test']
['administrative Law' 'child Welfare' 'working With Children Checks'] ['refusal of Working With Children Check Clearance' 'disqualifying Offence' 'enabling Order' 'risk to the Safety of Children' 'reasonable Person Test' 'public Interest Test']

Case Brief

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Procedural Posture

Application for an Enabling Order Following Refusal of a Working With Children Check Clearance / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the applicant discharged the onus under ss 28(7) and 30(1) of the Child Protection (Working with Children) Act 2012 (NSW) to displace the presumption that he is a risk to the safety of children.' 'If the presumption was displaced, whether a reasonable person would allow their child to have direct contact with the applicant under s 30(1A)(a) of the Child Protection (Working with Children) Act 2012 (NSW).' 'If the presumption was displaced, whether it would be in the public interest to make an enabling order under s 30(1A)(b) of the Child Protection (Working with Children) Act 2012 (NSW).']

Ratio Decidendi

The applicant failed to rebut the statutory presumption that he posed a risk to the safety of children. Although his offending was not targeted at children and there had been no further offending since 2018, the Tribunal found that he was indifferent to who witnessed his public sexualised conduct, lacked insight into the underlying cause of his offending, had not addressed his pornography use, faced a significant risk of further offending without relevant ongoing treatment, and had not engaged in such treatment. Having regard to the paramount consideration of child safety, the factors against the applicant outweighed those in his favour, requiring dismissal of the enabling order application.

Court Disposition

The applicant's application for an enabling order was dismissed.

Orders

  • ["The applicant's application for an enabling order is dismissed."]