M Anderson, Senior Member Prof P Foreman, General Member
Decision:
1) It is declared that the applicant is not a disqualified person for the purposes of section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault contrary to section 61E of the Crimes Act 1900 (NSW) entered on 13 December 1992 at the District Court of New South Wales at Wollongong.
3)The Children’s Guardian is to grant a working with children check clearance for the applicant pursuant to section 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW).
4) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords:
ADMINISTRATIVE LAW - Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - where disqualifying offence under former 61E(1) of the Crimes Act 1900 (NSW) indecent assault – assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - where onus of proof discharged by applicant - where enabling order granted.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
FMI v Children's Guardian [2023] NSWCATAD 9
Case
[2023] NSWCATAD 9
Decision Date
CaseChat Overview and Summary
The case of FMI v Children's Guardian was heard in the New South Wales Civil and Administrative Tribunal, where the applicant sought a Working with Children Check Clearance through an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The applicant had a disqualifying offence under the former section 61E(1) of the Crimes Act 1900 (NSW) for indecent assault, and the key issue before the Tribunal was whether the applicant had demonstrated that they were not a risk to the safety of children. The Tribunal was required to determine if the applicant had discharged the onus of proving they were not a risk to children.
The Tribunal held that the applicant had discharged the onus of proof, thereby establishing that they were not a risk to the safety of children. The Tribunal examined various factors, including the applicant's conduct since the offence, the length of time since the offence, and the applicant's current circumstances. The Tribunal found that the applicant had demonstrated a significant change in circumstances since the offence and had taken steps to ensure their conduct would not pose a risk to children in the future. The Tribunal concluded that the applicant had met the required standard of proof, and therefore, an enabling order was granted.
As a result of the Tribunal's decision, the applicant was declared not to be a disqualified person under section 28(1) of the Child Protection (Working with Children) Act 2013 (NSW) in respect of the offence of indecent assault. The application for an enabling order under section 28(1) of the Act was granted, and the Children’s Guardian was directed to grant a working with children check clearance for the applicant. Additionally, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings was prohibited, except for expert witnesses and officers of government agencies. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Orders
Orders of the court
1) It is declared that the applicant is not a disqualified person for the purposes of section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of indecent assault contrary to section 61E of the Crimes Act 1900 (NSW) entered on 13 December 1992 at the District Court of New South Wales at Wollongong.
2)The application for an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) dated 2 August 2022 is granted.
3)The Children’s Guardian is to grant a working with children check clearance for the applicant pursuant to section 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW).
4) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.