FNV v Children’s Guardian [2023] NSWCATAD 173

FNV v Children’s Guardian [2023] NSWCATAD 173

The Tribunal found that although the applicant committed a serious disqualifying offence as an adult, the offence did not involve a child, occurred over 20 years prior, and was followed by compelling evidence of rehabilitation and an absence of offending or risk to children. The applicant discharged his onus under s 28(7) of the Child Protection (Working with Children) Act 2012, rebutting the statutory presumption of risk. The Tribunal was also satisfied that a reasonable person would allow unsupervised contact with the applicant in child-related work and that granting the enabling order was in the public interest.

Parties
Applicant: FNV; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
30 June 2023
Procedural Posture
Administrative Review / Application for Enabling Order (final Decision)
Outcome
Application for enabling order granted; applicant not to be treated as disqualified person for relevant offence; Working with Children Check Clearance to be granted.
Legal Topics
Working With Children Checks, Disqualifying Offences, Risk Assessment, Enabling Orders
Administrative Law Child Protection Law Equal Opportunity Law Working With Children Checks Disqualifying Offences Risk Assessment Enabling Orders

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Parties

FNV

Applicant

Children's Guardian

Respondent

Procedural Posture

Administrative Review / Application for Enabling Order (final Decision)

Legal Issues

  1. 1 Whether the applicant should be granted an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 despite being a disqualified person due to prior conviction
  2. 2 Whether the applicant has rebutted the presumption that he poses a risk to the safety and well-being of children under s 28(7) and s 30(1) of the Act
  3. 3 Whether granting the order is in the public interest under s 30(1A)

Ratio Decidendi

The Tribunal found that although the applicant committed a serious disqualifying offence as an adult, the offence did not involve a child, occurred over 20 years prior, and was followed by compelling evidence of rehabilitation and an absence of offending or risk to children. The applicant discharged his onus under s 28(7) of the Child Protection (Working with Children) Act 2012, rebutting the statutory presumption of risk. The Tribunal was also satisfied that a reasonable person would allow unsupervised contact with the applicant in child-related work and that granting the enabling order was in the public interest.

Court Disposition

Application for enabling order granted; applicant not to be treated as disqualified person for relevant offence; Working with Children Check Clearance to be granted.

Orders

  • Hearing dispensed with under s 50(2) Civil and Administrative Tribunal Act 2013.
  • Applicant is not to be treated as a disqualified person for the offence in respect of s.61L Crimes Act 1900 (NSW) for conviction on 18 November 2002.