FMX v Children's Guardian - [2023] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FMX v Children’s Guardian [2023] NSWCATAD 203
Hearing dates: 23 March 2023
Date of orders: 01 August 2023
Decision date: 01 August 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
J Herberte, General Member
Decision:
(1) Declare FMX is not to be considered a ‘disqualified person’ for the purposes of the Child Protection (Working with Children) Act 2012.
(2) FMX is to be granted a Working With Children Check Clearance forthwith.

Catchwords:
ADMINISTRATIVE LAW – Child protection – Working with children – Enabling order - Whether applicant poses a risk to the safety of children – Where applicant must displace presumption after being found guilty of criminal charges relating to take/detain person in company with intent to obtain advantage

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995

Cases Cited: CXZ v Children’s Guardian [2020] NSWCA 338
BFX v Children’s Guardian [2014] NSWCATAD 115
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Children’s Guardian v BQJ [2016] NSWSC 869
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Office of the Children’s Guardian v EQE (2002) NSWSC 871
VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:
None cited

Category: Principal judgment
Parties: FMX (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Ms T Baw (Applicant)
Mr L Meagher (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2022/00259345
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, 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 the proceedings is prohibited.

REASONS FOR DECISION

This is an application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”).
The applicant, who is referred to as FMX, is a declared “disqualified person” under the Act. This is because he pleaded guilty to a prescribed offence in 2002. He is presumed under the Act to be a risk to the safety of children. FMX wishes to pursue a career in physiotherapy. As part of him completing his physiotherapy degree, FMX requires a working with children check clearance (WWCCC).
The Children’s Guardian (the “respondent”) is responsible for administering the WWCCC regime. Before the respondent can issue FMX with a WWCCC, the Tribunal must decide whether, or not, to declare that he is not a disqualified person for the purposes of the Act, and if so, decide if he should be granted a WWCCC.

Non-publication order

On 15 September 2022, the Tribunal made an order prohibiting the disclosure of the name of the…

Grounds of appeal

[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.

Continue reading FMX v Children's Guardian

Details

AGLC: FMX v Children's Guardian [2023] NSWCATAD 203
Case: [2023] NSWCATAD 203
Decision Date: 01 August 2023

CaseChat Overview and Summary

The case of FMX v Children's Guardian was heard in the Federal Circuit and Family Court of Australia. The matter involved a dispute over whether the applicant, FMX, should be considered a 'disqualified person' under the Child Protection (Working with Children) Act 2012, given that they had been found guilty of certain criminal charges. The crux of the issue was whether FMX posed a risk to the safety of children, thereby justifying the presumption of being a disqualified person.

The court was tasked with determining whether FMX had successfully displaced the presumption that they posed a risk to the safety of children. This required an assessment of FMX's past criminal conduct and the relevance of those actions to the current application for a Working With Children Check Clearance. The court needed to balance the presumption of risk against any evidence presented by FMX that might suggest they no longer posed such a risk.

In reaching its decision, the court considered the statutory framework and the principles governing the issuance of Working With Children Check Clearances. The court found that, despite FMX's past criminal convictions, there was sufficient evidence to suggest that FMX did not currently pose a risk to the safety of children. Consequently, the court concluded that the presumption of risk was displaced and granted the relief sought by FMX. The court declared that FMX was not a disqualified person and ordered that FMX be granted a Working With Children Check Clearance forthwith.

Orders

Orders of the court

(1) Declare FMX is not to be considered a ‘disqualified person’ for the purposes of the Child Protection (Working with Children) Act 2012.

(2) FMX is to be granted a Working With Children Check Clearance forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	FMX v Children’s Guardian [2023] NSWCATAD 203
Hearing dates:	23 March 2023
Date of orders:	01 August 2023
Decision date:	01 August 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member J Herberte, General Member
Decision:	(1) Declare FMX is not to be considered a ‘disqualified person’ for the purposes of the Child Protection (Working with Children) Act 2012. (2) FMX is to be granted a Working With Children Check Clearance forthwith.
Catchwords:	ADMINISTRATIVE LAW – Child protection – Working with children – Enabling order - Whether applicant poses a risk to the safety of children – Where applicant must displace presumption after being found guilty of criminal charges relating to take/detain person in company with intent to obtain advantage
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995
Cases Cited:	CXZ v Children’s Guardian [2020] NSWCA 338 BFX v Children’s Guardian [2014] NSWCATAD 115 BFX v Children’s Guardian [2014] NSWCATAD 115 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Children’s Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Office of the Children’s Guardian v EQE (2002) NSWSC 871 VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	FMX (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms T Baw (Applicant) Mr L Meagher (Respondent) Solicitors: Legal Aid NSW (Applicant) Crown Solicitor (Respondent)
File Number(s):	2022/00259345
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, 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 the proceedings is prohibited.