FKI v Children’s Guardian [2022] NSWCATAD 335

FKI v Children’s Guardian [2022] NSWCATAD 335

The Tribunal held the applicant had displaced the presumption that he poses a real and appreciable risk to the safety of children due to the time passed since offending, the low-end seriousness of the offence (which did not involve a child), his sustained rehabilitation and positive character evidence, and the lack of any further offending since 1997. It was determined that a reasonable person would allow their child unsupervised contact with the applicant in child-related work and that granting the order was in the public interest.

Parties
Applicant: FKI; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
18 October 2022
Procedural Posture
Application for Enabling Order Under Child Protection (working With Children) Act 2012 (nsw) / Determination on the Papers; Principal Judgment
Outcome
Application granted; applicant declared not a disqualified person; Working With Children Check clearance to be granted.
Legal Topics
Working With Children Check, Risk to Children, Review of Disqualification, Criminal Offence Assessment, Public Interest, Real and Appreciable Risk, Enabling Order
Administrative Law Child Protection Employment Law Working With Children Check Risk to Children Review of Disqualification Criminal Offence Assessment Public Interest +2 more

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Parties

FKI

Applicant

Children's Guardian

Respondent

Procedural Posture

Application for Enabling Order Under Child Protection (working With Children) Act 2012 (nsw) / Determination on the Papers; Principal Judgment

Legal Issues

  1. 1 Whether applicant poses a real and appreciable risk to the safety of children under s 28(7) of the Act
  2. 2 Whether applicant should be declared not a disqualified person for the purposes of the Act
  3. 3 Whether a reasonable person would allow direct and unsupervised contact between their child and the applicant in child-related work

Ratio Decidendi

The Tribunal held the applicant had displaced the presumption that he poses a real and appreciable risk to the safety of children due to the time passed since offending, the low-end seriousness of the offence (which did not involve a child), his sustained rehabilitation and positive character evidence, and the lack of any further offending since 1997. It was determined that a reasonable person would allow their child unsupervised contact with the applicant in child-related work and that granting the order was in the public interest.

Court Disposition

Application granted; applicant declared not a disqualified person; Working With Children Check clearance to be granted.

Orders

  • The requirement of a hearing is dispensed with; the matter to be determined on the papers (s 50(2) Civil and Administrative Tribunal Act 2013).
  • It is declared the applicant is not a disqualified person for the purposes of s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault under s 61L of the Crimes Act 1900 entered on 27 March 1995.