FVD v Children’s Guardian [2023] NSWCATAD 329

FVD v Children’s Guardian [2023] NSWCATAD 329

The Tribunal held that the applicant did not pose a real and appreciable risk to the safety and wellbeing of children, after considering all statutory factors, the facts of the disqualifying offence (which did not involve a child and was at the low end of seriousness), the lack of further offending, the passage of time, and positive conduct since the offence. Both section 30(1) and the reasonable person and public interest tests in section 30(1A) were satisfied. As such, the statutory presumption of risk was rebutted and an Enabling Order should be granted.

Jurisdiction
Australia
Judgment Date
20 December 2023
Procedural Posture
Application for Enabling Order Under S 28 Child Protection (working With Children) Act 2012 / Merits Determination on the Papers
Outcome
Application for Enabling Order granted. Applicant not to be treated as a disqualified person for purpose of the Act and Children's Guardian to grant working with children check clearance.
Legal Topics
['working With Children Checks' 'risk Assessment' 'statutory Presumptions' 'disqualifying Offence' 'enabling Order']
['administrative Law' 'child Protection' 'equal Opportunity'] ['working With Children Checks' 'risk Assessment' 'statutory Presumptions' 'disqualifying Offence' 'enabling Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant, a disqualified person due to a 2015 conviction of sexual assault, poses a real and appreciable risk to the safety and wellbeing of children under the Child Protection (Working with Children) Act 2012; whether an Enabling Order should be granted under s 28 of the Act.']

Ratio Decidendi

The Tribunal held that the applicant did not pose a real and appreciable risk to the safety and wellbeing of children, after considering all statutory factors, the facts of the disqualifying offence (which did not involve a child and was at the low end of seriousness), the lack of further offending, the passage of time, and positive conduct since the offence. Both section 30(1) and the reasonable person and public interest tests in section 30(1A) were satisfied. As such, the statutory presumption of risk was rebutted and an Enabling Order should be granted.

Court Disposition

Application for Enabling Order granted. Applicant not to be treated as a disqualified person for purpose of the Act and Children's Guardian to grant 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 2015 conviction of Sexual Assault s- 352 (1) (a) Criminal Code Qld and grants an Enabling Order.' "Pursuant to subsection 28(6) of the...