Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FJY v Children's Guardian [2022] NSWCATAD 306 Hearing dates: On the papers Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member
Emeritus Prof P J Foreman AM, General MemberDecision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the requirement of a hearing is dispensed with. The matter is to be determined on the papers.
2. It is declared the applicant is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault contrary to s 61L of the Crimes Act 1900 entered on 18 June 1996 at the Local of New South Wales at Sydney.
3. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) dated 30 March 2022 is granted.
4. The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) forthwith.
Catchwords: ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – indecent assault - s 61L of the Crimes Act 1900 (NSW) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Children’s Guardian v BQJ [2016] NSWSC 869
CHB v Children’s Guardian [2016] NSWCATAD 214
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CSW v Children’s Guardian [2017] NSWCATAD 326
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DHB v Children’s Guardian [2018] NSWCATAD 123
M v M [1988] HCA 68; 166 CLR 69
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
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- Case
- [2022] NSWCATAD 306
- Decision Date
CaseChat Overview and Summary
The court considered whether the offence of indecent assault committed by FJY in 1996 constituted a real and appreciable risk to children, and if a reasonable person would allow unsupervised access to their own child in the context of child-related work. The court evaluated the seriousness of the offence, the time elapsed since the conviction, and the likelihood of re-offending. Additionally, the court examined the statutory framework and the criteria set out in the Child Protection (Working with Children) Act 2012 (NSW), particularly section 28, which pertains to enabling orders.
In its reasoning, the court found that the offence, while serious, was committed many years ago, and FJY had demonstrated no further incidents of this nature. The court was persuaded that the risk of re-offending was minimal, and a reasonable person would likely allow unsupervised access to their child in the context of child-related work. Consequently, the court concluded that the applicant met the criteria for an enabling order and granted the application. The CAT ordered that FJY was not a disqualified person for the purposes of section 28(1) of the Act, and directed the Children's Guardian to issue a working with children check clearance to FJY forthwith.
Orders
Orders of the court
1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the requirement of a hearing is dispensed with. The matter is to be determined on the papers.
2. It is declared the applicant is not a disqualified person for the purposes of section 28(1) of Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault contrary to s 61L of the Crimes Act 1900 entered on 18 June 1996 at the Local of New South Wales at Sydney.
3. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) dated 30 March 2022 is granted.
4. The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) forthwith.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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