FYK v Children’s Guardian [2024] NSWCATAD 235

FYK v Children’s Guardian [2024] NSWCATAD 235

The Tribunal was positively satisfied that the applicant displaced the presumption in s 28(7) and does not pose a risk to the safety of children. Although the disqualifying offence was serious and involved a 16-year-old victim, 34 years had passed, there had been no further sexual offending or offending against children, Dr O'Dea assessed the applicant as having a relatively low risk of further sex offending and stated that denial of the offence did not itself predict further sex offending, and the applicant had demonstrated substantial rehabilitation over about 20 years. The Tribunal also found that the reasonable person and public interest tests in s 30(1A) were satisfied, including...

Jurisdiction
Australia
Judgment Date
13 August 2024
Procedural Posture
Application for Administrative Review Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) of a Refusal to Grant a Working With Children Check Clearance / Final Decision and Orders
Outcome
Application allowed; enabling order made and Children's Guardian ordered to grant the applicant a clearance forthwith.
Legal Topics
['disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'working With Children Check Clearance' 'reasonable Person Test' 'public Interest Test' 'rehabilitation']
['administrative Law' 'child Protection' 'working With Children Checks'] ['disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'working With Children Check Clearance' 'reasonable Person Test' 'public Interest Test' 'rehabilitation']

Case Brief

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Procedural Posture

Application for Administrative Review Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) of a Refusal to Grant a Working With Children Check Clearance / Final Decision and Orders

Legal Issues

  1. 1 ['Whether the applicant proved that he does not pose a real and appreciable risk to the safety of children despite being a disqualified person.' 'Whether the Tribunal should make an enabling order declaring that the applicant is not to be treated as a disqualified person in respect of the 1990 offence.' 'Whether a reasonable person would allow their child to have direct unsupervised contact with the applicant while engaged in child-related work.' 'Whether it was in the public interest to make an order enabling the applicant to work with children.']

Ratio Decidendi

The Tribunal was positively satisfied that the applicant displaced the presumption in s 28(7) and does not pose a risk to the safety of children. Although the disqualifying offence was serious and involved a 16-year-old victim, 34 years had passed, there had been no further sexual offending or offending against children, Dr O'Dea assessed the applicant as having a relatively low risk of further sex offending and stated that denial of the offence did not itself predict further sex offending, and the applicant had demonstrated substantial rehabilitation over about 20 years. The Tribunal also found that the reasonable person and public interest tests in s 30(1A) were satisfied, including...

Court Disposition

Application allowed; enabling order made and Children's Guardian ordered to grant the applicant a clearance forthwith.

Orders

  • ['Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of sexual intercourse without consent contrary to s 61D(1) (repealed) of the Crimes Act...