FMZ v Children's Guardian

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMZ v Children’s Guardian [2023] NSWCATAD 86

Hearing dates:

15 February 2023

Date of orders:

11 April 2023

Decision date:

11 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
F Duffy, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cth)

National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90,
BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
FBC v Children’s Guardian [2021] NSWCATAD 286

FPV v Children’s Guardian [2023] NSWCATAD 59

Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88

Texts Cited:

None

Category:

Principal judgment

Parties:

Onismo Baivatu (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Mr R Pietriche (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2022/00264627

Publication restriction:

None

REASONS FOR DECISION

1. On 19 April 2021, FMZ (“the applicant”) applied for a clearance (Clearance) pursuant to s 6 of the National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018 (NDIS Check Act). On 4 August 2022, the Children’s Guardian (Children’s Guardian) refused the Clearance pursuant to 11(1) of the NDIS Check Act after conducting a risk assessment because the applicant’s criminal history included two dishonesty offences for which he had been charged and convicted. The Children’s Guardian concluded that the applicant poses a risk of harm to persons with a disability.

2. On 5 September 2022, the applicant filed in this Tribunal an application for administrative review of the Children’s Guardians refusing him a Clearance.

3. The Children’s Guardian opposes the application and maintains that the Tribunal should affirm the decision to refuse the grant of a Clearance to the applicant.

4. Based on all of the available evidence and having regard to the statutory provisions which we outline below, we find that the applicant continues to pose a risk of harm to persons with a disability. As a result, the Children’s Guardian’s decision is affirmed. Our reasons follow.

Background

5. At the date of hearing the applicant was 40 years of age. He works in an administrative role with a major retail employer. The applicant was working as a disability…