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FND v Children's Guardian

FND v Children's Guardian

Case [2024] NSWCATAD 125 15 May 2024

Risk to Children

Enabling Order

Obligation to Disclose

Insight

Candour

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FND v Children’s Guardian [2024] NSWCATAD 125
Hearing dates: 26 October 2023, 8 December 2023
(Submissions closed 15 January 2024)
Date of orders: 15 May 2024
Decision date: 15 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
E Hayes, General Member
Decision:
FND’s application for an enabling order under s 28 (1) of the Child Protection (Working with Children) Act 2012 is dismissed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order – passage of time – continued risk – insight – candour – obligation to disclose

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes Act 1900 (ACT)

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
BKE v Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101

Category: Principal judgment
Parties: FND (Applicant)
Children’s Guardian (Respondent)
Representation: Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s): 2022/00260525
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

REASONS FOR decision

Introduction

This applicant seeks an Enabling Order under s 28 of the Child Protection (Working with Children) Act 2012 (‘the Act’) so that he can obtain a Working with Children Check Clearance (WWCCC). The applicant seeks an Enabling Order, as they are a ‘disqualified person’ under the Act.
The applicant is referred to as ‘FND’ in these proceedings. FND is the applicant's pseudonym used in these proceedings in conformity with an order made on 15 August 2022 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, non-expert witnesses, any other persons or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
On…

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 FND v Children's Guardian

Details

AGLC: FND v Children's Guardian [2024] NSWCATAD 125
Case: [2024] NSWCATAD 125
Decision Date: 15 May 2024

CaseChat Overview and Summary

The case involved FND, a prospective foster parent, and the Children’s Guardian. The dispute centred around FND's eligibility for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012. The Guardian opposed FND’s application due to concerns about the risk FND posed to children in their care. The matter was determined in the Supreme Court of New South Wales.

The legal issues revolved around whether the risk posed by FND was real and appreciable, and if FND had demonstrated sufficient insight and candour to warrant an enabling order. The court had to consider the statutory criteria, including the necessity of disclosure, the passage of time since the initial concerns, and whether FND had shown sufficient insight and candour to warrant a reconsideration of the risk assessment.

The court found that the risk FND posed to children remained real and appreciable. The Guardian had demonstrated that FND had failed to disclose relevant information, which was crucial in assessing the risk. Despite the passage of time, FND had not shown the requisite insight and candour. The court concluded that FND had not met the threshold for an enabling order, as they had not adequately addressed the concerns raised. Consequently, the application was dismissed.

The court ordered that FND’s application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 be dismissed. This decision underscores the importance of full disclosure and insight in child protection matters.

Orders

Orders of the court

FND’s application for an enabling order under s 28 (1) of the Child Protection (Working with Children) Act 2012 is dismissed.

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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Citations

AGLC Citation

FND v Children's Guardian [2024] NSWCATAD 125

Most Recent Citation

GFL v Children's Guardian [2024] NSWCATAD 345

Cases citing this decision · 1 of 1 shown

GFL v Children's Guardian
[2024] NSWCATAD 345 Para 86

…021] NSWCATAD 51; DGZ v Children’s Guardian [2022] NSWCATAD 250, FLE v Children’s Guardian [2023] NSWCATAD 89 and FND v Children’s Guardian [2024] NSWCATAD 125.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

CXZ v Children's Guardian
[2020] NSWCA 338

…[2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Category: Principal judgme…
Office of the Children's Guardian v CFW
[2016] NSWSC 1406

…NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Category: Principal judgment Parties: FND (Applicant) Children’s Guardian (Respondent) Representation: Applicant…
CHB v Children's Guardian
[2016] NSWCATAD 214

…fice of the Children's Guardian (No 2) 2014 NSWCAT 164 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] N…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 110

…al should discharge its statutory functions on the evidence we note the guidance from the Superior Courts. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. Like the current matter BKE dealt with an enabling order application. Unlike the fac…
BFX v Children's Guardian
[2014] NSWCATAD 115 Para 33

…roval in 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 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
BFC v The Children's Guardian
[2014] NSWCATAD 90 Para 33

…The remarks have also been cited with approval in 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 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 33

…The remarks have also been cited with approval in 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 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
ADV v Commission for Children and Young People
[2012] NSWADT 8 Para 32

…ared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998 : see ADV v Commission for Children and Young People [2012] NSWADT 8.…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 18

…t is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.…
Commission for Young People v V
[2002] NSWSC 949 Para 31

…The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42],…
Briginshaw v Briginshaw
[1938] HCA 34

…e v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs…
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott
[1933] HCA 30

…d a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).…
R v Commission for Children and Young People
[2002] NSWIRCOMM 101

…8) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Category: Principal judgment Parties: FND (Applicant) Children’s Guardian (Respondent) Representation: Applicant (self-represented) Crown Solicitor (Respondent) File Number(s): 20…

Legislation cited in this decision · 6

Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 31)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 1)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 2)
Commission for Children and Young People Act 1998 (NSW)
1 mention (from Para 32)
Crimes Act 1900 (ACT)
1 mention (from Para 16)

Medium Neutral Citation:	FND v Children’s Guardian [2024] NSWCATAD 125
Hearing dates:	26 October 2023, 8 December 2023 (Submissions closed 15 January 2024)
Date of orders:	15 May 2024
Decision date:	15 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member E Hayes, General Member
Decision:	FND’s application for an enabling order under s 28 (1) of the Child Protection (Working with Children) Act 2012 is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order – passage of time – continued risk – insight – candour – obligation to disclose
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes Act 1900 (ACT)
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 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	FND (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (self-represented) Crown Solicitor (Respondent)
File Number(s):	2022/00260525
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.