FTB v Children's Guardian - [2024] NSWCATAD 44

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: FTB v Children’s Guardian [2024] NSWCATAD 44
Hearing dates: 21 September 2023
(Submissions closed 14 November 2023)
Date of orders: 21 February 2024
Decision date: 21 February 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member
M Maher General Member
Decision:
1. Pursuant to s 16 (3A) and s 16 (5) of the Child Protection (Offenders Registration) Act 2000 we decline to make an order suspending FTB’s reporting period.
2. We decline to make any order under s 16 (11) of the Child Protection (Offenders Registration) Act 2000 shortening the period in which FTB may reapply to the Tribunal.

Catchwords:
ADMINISTRATIVE LAW Child Protection – Offenders Registration – Whether applicant continues to pose a risk to the safety and wellbeing of children

Legislation Cited:
Child Protection (Offender Registration) Regulation 2015
Child Protection (Offenders Registration) Act 2000
Child Protection (Prohibited Employment) Act 1998 (repealed)
Child Protection (Working with Children) Act 2012
Child Sex Offenders Registration Act 2000 (SA)
Civil and Administrative Tribunal Act 2013
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)

Cases Cited:
BQF v Children’s Guardian [2015] NSWCATAD 225
DCZ v Children’s Guardian [2018] NSWCATAD 81
DKP v Children’s Guardian [2018] NSWCATAD 303
FHV v Children’s Guardian [2023] NSWCATAD 246

Texts Cited:
Nil

Category: Principal judgment
Parties: FTB (Applicant)
Children’s Guardian (First Respondent)
Commissioner of Police NSW Police Force (Second Respondent)
Representation:
Counsel:
A Sapienza (Respondents)
Solicitors:
Applicant (self represented)
Crown Solicitor (Respondents)

File Number(s): 2023/00078912
Publication restriction: s-64 (1) (a) of the Civil and Administrative Tribunal 2013 applies to the name of the applicant and any family members of the applicant, non expert witnesses or individuals other than professionals - prohibiting or restricting the disclosure of the name of any such person

REASONS FOR DECISION

Introduction

The applicant was convicted of a number of sex based offences. As a result of those matters the applicant is a person subject to the supervision and reporting obligations of applicable legislation.
Those reporting obligations mean that the applicant must seek permission from the Commissioner of Police to do various things (such as travel outside of NSW) or provide updated information when his details (such as address - change).
By application which was filed on 9 March 2023 with the New South Wales Civil and Administrative Tribunal (the Tribunal) the applicant ‘FTB’ seeks a review under the Child Protection (Offenders Registration) Act 2000 (the CPOR Act).
The applicant is referred to as ‘FTB’ in these proceedings. FTB is the applicant's pseudonym used in these proceedings in conformity with an order made 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.
The orders sought by FTB are: an order suspending 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 FTB v Children's Guardian

Details

AGLC: FTB v Children's Guardian [2024] NSWCATAD 44
Case: [2024] NSWCATAD 44
Decision Date: 21 February 2024

CaseChat Overview and Summary

In the matter of FTB versus the Children's Guardian, the court was asked to decide whether the applicant, FTB, still posed a risk to the safety and wellbeing of children. The application was brought under the Child Protection (Offenders Registration) Act 2000, and the Children's Guardian argued that FTB should be required to continue reporting to authorities as a registered offender. The legal issues before the court included whether the applicant continued to pose a risk to the safety and wellbeing of children and whether the reporting period should be suspended or the period for reapplying to the Tribunal shortened.

The court considered evidence and submissions from both parties and concluded that there was insufficient evidence to support the contention that FTB continued to pose a risk to the safety and wellbeing of children. As such, the court declined to make an order suspending FTB's reporting period under section 16(3A) and 16(5) of the Child Protection (Offenders Registration) Act 2000. The court also declined to make any order under section 16(11) of the Act shortening the period in which FTB may reapply to the Tribunal.

In summary, the court found that there was not enough evidence to support the contention that FTB continued to pose a risk to the safety and wellbeing of children and therefore declined to make any orders that would require FTB to continue reporting to authorities as a registered offender. The court's decision was based on the evidence and submissions presented by both parties, and it is unlikely that FTB will be required to continue reporting to authorities as a registered offender in the future.

Orders

Orders of the court

1. Pursuant to s 16 (3A) and s 16 (5) of the Child Protection (Offenders Registration) Act 2000 we decline to make an order suspending FTB’s reporting period.

2. We decline to make any order under s 16 (11) of the Child Protection (Offenders Registration) Act 2000 shortening the period in which FTB may reapply to the Tribunal.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	FTB v Children’s Guardian [2024] NSWCATAD 44
Hearing dates:	21 September 2023 (Submissions closed 14 November 2023)
Date of orders:	21 February 2024
Decision date:	21 February 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member M Maher General Member
Decision:	1. Pursuant to s 16 (3A) and s 16 (5) of the Child Protection (Offenders Registration) Act 2000 we decline to make an order suspending FTB’s reporting period. 2. We decline to make any order under s 16 (11) of the Child Protection (Offenders Registration) Act 2000 shortening the period in which FTB may reapply to the Tribunal.
Catchwords:	ADMINISTRATIVE LAW Child Protection – Offenders Registration – Whether applicant continues to pose a risk to the safety and wellbeing of children
Legislation Cited:	Child Protection (Offender Registration) Regulation 2015 Child Protection (Offenders Registration) Act 2000 Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 Child Sex Offenders Registration Act 2000 (SA) Civil and Administrative Tribunal Act 2013 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth)
Cases Cited:	BQF v Children’s Guardian [2015] NSWCATAD 225 DCZ v Children’s Guardian [2018] NSWCATAD 81 DKP v Children’s Guardian [2018] NSWCATAD 303 FHV v Children’s Guardian [2023] NSWCATAD 246
Texts Cited:	Nil
Category:	Principal judgment
Parties:	FTB (Applicant) Children’s Guardian (First Respondent) Commissioner of Police NSW Police Force (Second Respondent)
Representation:	Counsel: A Sapienza (Respondents) Solicitors: Applicant (self represented) Crown Solicitor (Respondents)
File Number(s):	2023/00078912
Publication restriction:	s-64 (1) (a) of the Civil and Administrative Tribunal 2013 applies to the name of the applicant and any family members of the applicant, non expert witnesses or individuals other than professionals - prohibiting or restricting the disclosure of the name of any such person