FZY v Children’s Guardian [2024] NSWCATAD 331

FZY v Children’s Guardian [2024] NSWCATAD 331

FZY rebutted the statutory presumption of risk based on the passage of 42 years since offending, absence of further incidents, strong positive evidence from character witnesses, and the uncontested expert opinion that his risk is relatively low. The Tribunal found that a reasonable person with knowledge of his history would allow unsupervised contact with children and that the public interest supports granting the enabling order and clearance.

Parties
Applicant: FZY; Respondent: Children's Guardian
Jurisdiction
Australia
Judgment Date
07 November 2024
Procedural Posture
Application for Enabling Order (administrative Law) / Final Determination and Orders
Outcome
Enabling order granted; applicant not to be considered a disqualified person; WWCC Clearance to be granted forthwith.
Legal Topics
Working With Children Check, Disqualification Under Child Protection (working With Children) Act 2012, Risk Assessment for Child Safety, Disclosure and Rehabilitation, Public Interest and Reasonable Person Test
Administrative Law Child Protection Law Equal Opportunity Law Working With Children Check Disqualification Under Child Protection (working With Children) Act 2012 Risk Assessment for Child Safety Disclosure and Rehabilitation Public Interest and Reasonable Person Test

Case Brief

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Parties

FZY

Applicant

Children's Guardian

Respondent

Procedural Posture

Application for Enabling Order (administrative Law) / Final Determination and Orders

Legal Issues

  1. 1 Whether the applicant, FZY, has rebutted the presumption that he poses a risk to the safety of children for purposes of s 28(7) of the Child Protection (Working with Children) Act 2012 (NSW)
  2. 2 Whether an enabling order should be made permitting FZY to hold a Working With Children Check Clearance despite past serious historical offending
  3. 3 Whether a reasonable person would allow unsupervised contact and if public interest favours the order

Ratio Decidendi

FZY rebutted the statutory presumption of risk based on the passage of 42 years since offending, absence of further incidents, strong positive evidence from character witnesses, and the uncontested expert opinion that his risk is relatively low. The Tribunal found that a reasonable person with knowledge of his history would allow unsupervised contact with children and that the public interest supports granting the enabling order and clearance.

Court Disposition

Enabling order granted; applicant not to be considered a disqualified person; WWCC Clearance to be granted forthwith.

Orders

  • Declare FZY is not to be considered a 'disqualified person' for the purposes of the Child Protection (Working with Children) Act 2012.
  • FZY is to be granted a Working With Children Check Clearance forthwith.