FSQ v Children’s Guardian [2024] NSWCATAD 302

FSQ v Children’s Guardian [2024] NSWCATAD 302

FSQ successfully rebutted the statutory presumption that he poses a risk to the safety of children. The Tribunal found that his offending was related to a major depressive episode, there was no evidence of ongoing risk or a sexual interest in children, and 19 years had elapsed without further offending. Applying the mandatory statutory criteria, the Tribunal was affirmatively satisfied that FSQ does not pose a real and appreciable risk to children and that a reasonable person would permit direct unsupervised contact. It is in the public interest to make the orders sought.

Parties
Applicant: FSQ; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
11 October 2024
Procedural Posture
Administrative Law – Working With Children Check Review / Merits Review Before Civil and Administrative Tribunal (nsw); Final Decision
Outcome
Application allowed. Enabling order and clearance granted.
Legal Topics
Working With Children Check, Disqualified Persons, Enabling Orders, Possession of Child Pornography, Risk Assessment, Public Interest
Administrative Law Child Welfare Equal Opportunity Working With Children Check Disqualified Persons Enabling Orders Possession of Child Pornography Risk Assessment +1 more

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Parties

FSQ

Applicant

Children's Guardian

Respondent

Procedural Posture

Administrative Law – Working With Children Check Review / Merits Review Before Civil and Administrative Tribunal (nsw); Final Decision

Legal Issues

  1. 1 Whether FSQ should be treated as a disqualified person under the Child Protection (Working with Children) Act 2012 in relation to a conviction for possess child pornography
  2. 2 Whether FSQ is eligible for a working with children check clearance under section 28
  3. 3 Whether FSQ rebutted the presumption that he poses a risk to the safety of children

Ratio Decidendi

FSQ successfully rebutted the statutory presumption that he poses a risk to the safety of children. The Tribunal found that his offending was related to a major depressive episode, there was no evidence of ongoing risk or a sexual interest in children, and 19 years had elapsed without further offending. Applying the mandatory statutory criteria, the Tribunal was affirmatively satisfied that FSQ does not pose a real and appreciable risk to children and that a reasonable person would permit direct unsupervised contact. It is in the public interest to make the orders sought.

Court Disposition

Application allowed. Enabling order and clearance granted.

Orders

  • The Tribunal declares that FSQ is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of possess child pornography of which he was convicted by the Local Court on 7 June 2005.
  • Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant FSQ a working with children check clearance.