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FVD v Children's Guardian

FVD v Children's Guardian

Case [2023] NSWCATAD 329 20 December 2023

Jurisdiction

Enabling Order

Child Protection

Working with Children

Risk to Children

Clearance

Administrative Law

No judgment structure available for this case.

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FVD v Children’s Guardian [2023] NSWCATAD 329
Hearing dates: On the papers
Date of orders: 20 December 2023
Decision date: 20 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Prof P J Foreman AM, General Member
Decision:
1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2015 conviction of Sexual Assault s- 352 (1) (a) Criminal Code Qld and grants an Enabling Order.
2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.

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

Legislation Cited:
Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Criminal Code (Qld)
National Disability Insurance Scheme (Worker Checks) Act 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
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
PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455
R v Commission for Children and Young People [2002] NSWIRComm 101

Texts Cited:
None cited

Category: Principal judgment
Parties: FVD (Applicant)
Children’s Guardian (Respondent)
Representation: Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s): 2023/00144680
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 may obtain a Working with Children Check Clearance (WWCCC). The applicant seeks an Enabling Order, as he is a ‘disqualified person’ under the Act.
The applicant is referred to as ‘FVD’ in these proceedings. FVD is the applicant's pseudonym used in these proceedings in…

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 FVD v Children's Guardian

Details

AGLC: FVD v Children's Guardian [2023] NSWCATAD 329
Case: [2023] NSWCATAD 329
Decision Date: 20 December 2023

CaseChat Overview and Summary

In the matter of FVD versus the Children's Guardian, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the applicant, FVD, should be deemed a disqualified person under the Child Protection (Working with Children) Act 2012. FVD had been convicted in 2015 of sexual assault and was seeking an enabling order to allow him to work with children, notwithstanding his conviction. The Children's Guardian opposed the application, arguing that FVD's conviction presented an appreciable risk to children.

The central legal issue before QCAT was whether FVD's 2015 conviction for sexual assault constituted an appreciable risk to children, thereby disqualifying him from working with them. In addressing this, QCAT examined the nature and severity of the offence, the circumstances surrounding it, and the risk it posed to children. Furthermore, the Tribunal considered the passage of time since the conviction and FVD's subsequent conduct and rehabilitation efforts. QCAT also took into account statutory provisions regarding the granting of enabling orders and the criteria that must be satisfied for such an order to be issued.

In rendering its decision, QCAT found that FVD's conviction did not present an appreciable risk to children. The Tribunal concluded that FVD had demonstrated significant rehabilitation efforts and had complied with all requirements imposed upon him post-conviction. Given the time elapsed since the offence, QCAT determined that the risk to children had diminished considerably. Consequently, QCAT granted the enabling order, allowing FVD to work with children, and directed the Children's Guardian to issue a working with children check clearance to FVD. This decision underscores the importance of considering both the nature of the offence and the individual's rehabilitation in determining eligibility to work with children.

Orders

Orders of the court

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2015 conviction of Sexual Assault s- 352 (1) (a) Criminal Code Qld and grants an Enabling Order.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.

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

Full text does not contain this section.

Citations

AGLC Citation

FVD v Children's Guardian [2023] NSWCATAD 329

Most Recent Citation

GHT v Children's Guardian [2025] NSWCATAD 16

Cases citing this decision · 1 of 1 shown

GHT v Children's Guardian
[2025] NSWCATAD 16 Para 143

…y of misconduct in comparison with other cases where there has been significant criminal misconduct, such as in the case of FVD v Children's Guardian [2023] NSWCATAD 329. In that case, the applicant was found by the Tribunal to have a “sparse criminal history” and was on his own recognisance, without conviction, despi…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

CXZ v Children's Guardian
[2020] NSWCA 338

…ple 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 PJR v Secretary to the Department of Justice (Occupational and Business Regulation)…
CYY v Children's Guardian (No 2)
[2017] NSWCATAD 262 Para 94

…We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:…
Office of the Children's Guardian v CFW
[2016] NSWSC 1406

…[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 PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Text…
CHB v Children's Guardian
[2016] NSWCATAD 214

…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…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 78

…l should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523 Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Unlike the facts in BKE , certain matt…
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading
[2014] NSWCATAD 184

…been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to th…
BFX v Children's Guardian
[2014] NSWCATAD 115 Para 34

…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 34

…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 34

…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].…
ZZ v Secretary, Department of Justice
[2013] VSC 267

…er private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors s…
ADV v Commission for Children and Young People
[2012] NSWADT 8 Para 34

…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 20

…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 33

…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

…the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Texts Cited: None cited Category: Principal judgment Parties: FVD (Applicant) Children’s Guardian (Respondent) Representation: Applicant (Self-Represented) Crown Solicitor…
PJR v Secretary to the Department of Justice
[2006] VCAT 2455 Para 100

…Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance. We note again given our finding under s 30 (1) that FVD’s level of risk is deemed to be equal to that of any memb…

Legislation cited in this decision · 9

Administrative Decisions Review Act 1997 (NSW)
1 mention
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 33)
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 34)
Crimes Act 1900 (ACT)
1 mention (from Para 46)
Criminal Records Act 1991 (NSW)
1 mention
National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW)
1 mention (from Para 9)

Medium Neutral Citation:	FVD v Children’s Guardian [2023] NSWCATAD 329
Hearing dates:	On the papers
Date of orders:	20 December 2023
Decision date:	20 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member Prof P J Foreman AM, General Member
Decision:	1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 2015 conviction of Sexual Assault s- 352 (1) (a) Criminal Code Qld and grants an Enabling Order. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order – passage of time
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Criminal Code (Qld) National Disability Insurance Scheme (Worker Checks) Act 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 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 PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101
Texts Cited:	None cited
Category:	Principal judgment
Parties:	FVD (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (Self-Represented) Crown Solicitor (Respondent)
File Number(s):	2023/00144680
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.