FJY v Children's Guardian

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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 Member
Decision:

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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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

Hogan v Hinch [2011] HCA 4

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1

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Details
Case
[2022] NSWCATAD 306
Decision Date

CaseChat Overview and Summary

The case of FJY v Children's Guardian involved a dispute where the applicant, FJY, sought a review of a decision under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) concerning the granting of an enabling order. The applicant argued that the Children's Guardian was wrong to refuse a working with children check clearance, given that FJY had previously been convicted of indecent assault in 1996. This case was heard by the Civil and Administrative Tribunal (CAT) of New South Wales. The primary legal issue before the court was whether FJY qualified for an enabling order under the Act, considering the nature and recency of the offence, and whether such an order would be justified under the specific circumstances of the case.

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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