FLE v Children’s Guardian [2023] NSWCATAD 89

FLE v Children’s Guardian [2023] NSWCATAD 89

FLE rebutted the statutory presumption of risk. Although the 2002 assault with act of indecency was objectively serious, it was at the lower end of seriousness for that offence, did not involve a child, was strongly connected to intoxication, and occurred almost 21 years before the decision. The evidence showed substantial behavioural change, significant abstinence from alcohol, remorse, insight, family and community stability, no comparable offending for many years, no child protection history, and no evidence that FLE had posed a risk to children. The Tribunal was satisfied that FLE did not currently pose a real and appreciable risk to the safety and wellbeing of children, that a...

Jurisdiction
Australia
Judgment Date
17 April 2023
Procedural Posture
Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 / Decision on the Papers
Outcome
Application granted; Enabling Order made and Children's Guardian ordered to grant a working with children check clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'real and Appreciable Risk' 'public Interest']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'real and Appreciable Risk' 'public Interest']

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Procedural Posture

Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 / Decision on the Papers

Legal Issues

  1. 1 ['Whether FLE rebutted the statutory presumption under s 28(7) of the Child Protection (Working with Children) Act 2012 that he poses a risk to the safety of children.' 'Whether FLE currently poses a real and appreciable risk to the safety and wellbeing of children if granted a working with children check clearance.' 'Whether the Tribunal was satisfied under s 30(1A) of the Child Protection (Working with Children) Act 2012 that a reasonable person would allow unsupervised direct contact with their child while FLE was engaged in child-related work and that making the order was in the public interest.']

Ratio Decidendi

FLE rebutted the statutory presumption of risk. Although the 2002 assault with act of indecency was objectively serious, it was at the lower end of seriousness for that offence, did not involve a child, was strongly connected to intoxication, and occurred almost 21 years before the decision. The evidence showed substantial behavioural change, significant abstinence from alcohol, remorse, insight, family and community stability, no comparable offending for many years, no child protection history, and no evidence that FLE had posed a risk to children. The Tribunal was satisfied that FLE did not currently pose a real and appreciable risk to the safety and wellbeing of children, that a...

Court Disposition

Application granted; Enabling Order made and Children's Guardian ordered to grant a working with children check clearance.

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 2002 conviction of Assault with act of indecency s 61L Crimes Act 1900 and grants an Enabling Order.' "Pursuant to subsection 28(6) of...