FJF v Children’s Guardian [2022] NSWCATAD 381

FJF v Children’s Guardian [2022] NSWCATAD 381

On the evidence, FJF's risk factors have been rebutted; the Tribunal was not satisfied he poses a real and appreciable risk to children. The 2019 offence, while serious, was at the lower range, was isolated, and was followed by remorse, lack of other offending, and protective steps. A reasonable person would allow their child to have unsupervised contact with FJF, and granting the order is in the public interest. Accordingly, the Enabling Order should be granted.

Parties
Applicant: FJF; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
01 December 2022
Procedural Posture
Application for Enabling Order (working With Children Clearance) / Final Merits Determination on the Papers
Outcome
Application for Enabling Order granted
Legal Topics
Working With Children Check, Risk Assessment Under S 28 Child Protection (working With Children) Act 2012, Disqualifying Offence, Public Interest Test, Reasonable Person Test
Administrative Law Child Protection Equal Opportunity Law Working With Children Check Risk Assessment Under S 28 Child Protection (working With Children) Act 2012 Disqualifying Offence Public Interest Test Reasonable Person Test

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Parties

FJF

Applicant

Children's Guardian

Respondent

Procedural Posture

Application for Enabling Order (working With Children Clearance) / Final Merits Determination on the Papers

Legal Issues

  1. 1 Whether FJF currently poses a real and appreciable risk to the safety and wellbeing of children for the purposes of the Child Protection (Working with Children) Act 2012
  2. 2 Whether granting an Enabling Order is in the public interest and satisfies the 'reasonable person' test under s 30(1A) Child Protection (Working with Children) Act 2012

Ratio Decidendi

On the evidence, FJF's risk factors have been rebutted; the Tribunal was not satisfied he poses a real and appreciable risk to children. The 2019 offence, while serious, was at the lower range, was isolated, and was followed by remorse, lack of other offending, and protective steps. A reasonable person would allow their child to have unsupervised contact with FJF, and granting the order is in the public interest. Accordingly, the Enabling Order should be granted.

Court Disposition

Application for Enabling Order granted

Orders

  • The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2019 Court outcome in respect of sexual touching without consent assault s-61KC(a) Crimes Act 1900 and grants an Enabling Order.
  • Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a Working with Children Check clearance.