FZG v Children's Guardian - [2025] NSWCATAD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FZG V Children’s Guardian [2025] NSWCATAD 21
Hearing dates: 23 May 2024
Date of orders: 17 January 2025
Decision date: 17 January 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Mobbs, Senior Member
J Herberte, General Member
Decision:
The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (sexual touching) – insight– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
M v M (1988) 166 CLR 69,
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
None

Category: Principal judgment
Parties: FZG (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Opara and Singh Lawyers Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2023/00285426
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts the disclosure of the name of the Applicant, the victim and any witness in any criminal proceedings, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

The Applicant in these proceedings is referred to as “FZG”. FZG is the Applicant’s pseudonym used in accordance with the order made by the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)(the NCAT Act).
The Applicant was granted a working with children’s check clearance (Clearance) on 4 March 2020.
On 29 October 2022, the Applicant was charged with an offence of sexually touching another person without consent. He was subsequently convicted in relation to that offence on 22 February 2023.
On 31 October 2022, the Applicant’s Clearance was cancelled by the Children’s Guardian (the Respondent) on the basis that the Applicant was a disqualified person.
On 6 September 2023, the Applicant filed an application with the Tribunal, together with a bundle of documentary material and written submissions from Mr Opara, his legal representative. In effect, the Applicant seeks a finding by the Tribunal that he does not pose a risk to children and that he be granted an enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).
The Respondent opposes the application for an enabling order.

Non-publication order

The Tribunal made an order prohibiting the disclosure of the name of the Applicant pursuant to s 64(1)(a) of the NCAT Act. The Tribunal is satisfied that in the circumstances of this case, that it is desirable to prohibit 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 FZG v Children's Guardian

Details

AGLC: FZG v Children's Guardian [2025] NSWCATAD 21
Case: [2025] NSWCATAD 21
Decision Date: 17 January 2025

CaseChat Overview and Summary

FZG made an application for an enabling order under the Child Protection (Working with Children) Act 2012, seeking to be deemed a fit and proper person to work with children. FZG had been convicted of a disqualifying offence, specifically sexual touching of a child. The application was opposed by the Children's Guardian, who argued that FZG had not demonstrated insight into his offending, and as such, he posed an ongoing risk to children. The court was required to determine whether FZG had displaced the statutory presumption that he posed a risk to the safety of children.

The court considered FZG's evidence and submissions, including his explanation for his offending and his efforts to address his behaviours. The court found that FZG had not demonstrated sufficient insight into his offending, and therefore had not displaced the presumption that he posed a risk to children. The court was also critical of the lack of independent evidence, such as psychological reports, to support FZG's submissions. The court held that FZG had not satisfied the threshold for an enabling order under the Act.

The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 was refused.

Orders

Orders of the court

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

Background

Background to the litigation

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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:	FZG V Children’s Guardian [2025] NSWCATAD 21
Hearing dates:	23 May 2024
Date of orders:	17 January 2025
Decision date:	17 January 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Mobbs, Senior Member J Herberte, General Member
Decision:	The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (sexual touching) – insight– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 M v M (1988) 166 CLR 69, Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	None
Category:	Principal judgment
Parties:	FZG (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Opara and Singh Lawyers Pty Ltd (Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00285426
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts the disclosure of the name of the Applicant, the victim and any witness in any criminal proceedings, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.