FZI v Children’s Guardian [2024] NSWCATAD 124

FZI v Children’s Guardian [2024] NSWCATAD 124

The Tribunal was satisfied on the balance of probabilities that the existence of a real and appreciable risk to children had been disproven. The disqualifying offence involved adult victims in an adult-only venue, was isolated, was at the lower end of seriousness as reflected by the sentence, and was connected to excessive alcohol consumption which the applicant had addressed through counselling and abstinence. The applicant had shown remorse, had no further convictions or charges, had positive evidence from references and a psychological report, and was found to be truthful. The Tribunal was also satisfied that a reasonable person with full knowledge of the applicant's history would...

Jurisdiction
Australia
Judgment Date
14 May 2024
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of a Working With Children Check Clearance / Principal Judgment; Reasons for Orders Made on 4 April 2024
Outcome
Application granted; enabling order made and Working with Children Check Clearance ordered to be granted.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'child Related Work']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to the Safety of Children' 'child Related Work']

Case Brief

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of a Working With Children Check Clearance / Principal Judgment; Reasons for Orders Made on 4 April 2024

Legal Issues

  1. 1 ['Whether the applicant, a disqualified person because of a conviction for sexually touching a person without consent, should be granted an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the applicant disproved the presumed real and appreciable risk to the safety of children.' 'Whether the requirements of section 30(1A) of the Child Protection (Working with Children) Act 2012 (NSW) were satisfied.']

Ratio Decidendi

The Tribunal was satisfied on the balance of probabilities that the existence of a real and appreciable risk to children had been disproven. The disqualifying offence involved adult victims in an adult-only venue, was isolated, was at the lower end of seriousness as reflected by the sentence, and was connected to excessive alcohol consumption which the applicant had addressed through counselling and abstinence. The applicant had shown remorse, had no further convictions or charges, had positive evidence from references and a psychological report, and was found to be truthful. The Tribunal was also satisfied that a reasonable person with full knowledge of the applicant's history would...

Court Disposition

Application granted; enabling order made and Working with Children Check Clearance ordered to be granted.

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 conviction for "sexually touch a person without consent", in contravention of s 61KC(a) of the Crimes Act 1900.' "Pursuant to subsection...