FJT v Children’s Guardian [2023] NSWCATAD 57

FJT v Children’s Guardian [2023] NSWCATAD 57

The applicant rebutted the statutory presumption because, although the disqualifying offence was serious, it was at the lower end of seriousness for that type of offence, occurred just over two years earlier, the victim was not a child, there was no evidence of similar conduct before or since, and the applicant had demonstrated remorse, insight, positive lifestyle changes, stable employment and resolved health issues. The uncontradicted clinical psychology evidence assessed his risk to any member of the community, including children, as negligible. The Tribunal was satisfied that he did not pose a real and appreciable risk to the safety of children, that a reasonable person would allow...

Jurisdiction
Australia
Judgment Date
14 March 2023
Procedural Posture
Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) / On the Papers; Decision and Orders
Outcome
Application granted; applicant not to be treated as a disqualified person and Children's Guardian to grant a Working with Children Check Clearance.
Legal Topics
['enabling Order' 'disqualified Person' 'disqualifying Offence' 'working With Children Check Clearance' 'risk to the Safety of Children']
['administrative Law' 'child Protection' 'working With Children Checks'] ['enabling Order' 'disqualified Person' 'disqualifying Offence' 'working With Children Check Clearance' 'risk to the Safety of Children']

Case Brief

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Procedural Posture

Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) / On the Papers; Decision and Orders

Legal Issues

  1. 1 ['Whether the applicant had rebutted the statutory presumption that he poses a risk to the safety of children.' 'Whether the applicant should not be treated as a disqualified person for the offence under s 352(1)(a) of the Criminal Code 1899 (QLD).' 'Whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while engaged in child-related work.' 'Whether it was in the public interest to make an enabling order.']

Ratio Decidendi

The applicant rebutted the statutory presumption because, although the disqualifying offence was serious, it was at the lower end of seriousness for that type of offence, occurred just over two years earlier, the victim was not a child, there was no evidence of similar conduct before or since, and the applicant had demonstrated remorse, insight, positive lifestyle changes, stable employment and resolved health issues. The uncontradicted clinical psychology evidence assessed his risk to any member of the community, including children, as negligible. The Tribunal was satisfied that he did not pose a real and appreciable risk to the safety of children, that a reasonable person would allow...

Court Disposition

Application granted; applicant not to be treated as a disqualified person and Children's Guardian to grant a Working with Children Check Clearance.

Orders

  • ['The applicant is not to be treated as a disqualified person for the offence, in respect of a conviction for the offence of sexual assault contrary to s 352(1)(a) of the Criminal Code 1899 (QLD) entered on 13 April 2022 at Southport Magistrates Court.' 'The application for an enabling order under s 28(1) of the...