Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FZI v Children’s Guardian [2024] NSWCATAD 124 Hearing dates: 4 April 2024 Date of orders: 4 April 2024 Decision date: 14 May 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member
Prof P Foreman, General MemberDecision: (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 conviction for “sexually touch a person without consent”, in contravention of s 61KC(a) of the Crimes Act 1900.
(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 — application under section 28 Child Protection (Working with Children) Act 2012 — refusal by Children’s Guardian in relation to a disqualified person — where paramount concern is protecting children from child abuse — onus of proof in an enabling order application under section 28 — whether a real and appreciable risk is posed by the applicant to the safety of children— the provisions of section 30(1A) satisfied.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW).
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Cases Cited: AHV v NSW Commission for Children and Young People [2012] NSWADT 263
ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKV v Children’s Guardian [2015] NSWCATAD 65
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Browne v Dunn (1894) 6 R 67
BYR v Children's Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CFW [2016] NSWSC 1406
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CXZ v The Children’s Guardian [2020] NSWCA 338
Deiter & Deiter [2011] FamCAFC 82
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Isles & Nelissen [2022] FedCFamC1A 97
Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344
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- AGLC
- FZI v Children's Guardian [2024] NSWCATAD 124
- Case
- [2024] NSWCATAD 124
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the determination of the onus of proof in an enabling order application under section 28 of the Act, and whether the provisions of section 30(1A) were satisfied. Specifically, the court needed to decide whether a real and appreciable risk was posed by FZI to the safety of children, thereby justifying the refusal of an enabling order. The applicant argued that he had demonstrated a substantial change in circumstances since his conviction, and that he had taken appropriate steps to mitigate the risk of reoffending.
The court found that the onus of proof in an enabling order application under section 28 of the Act lay on the applicant to demonstrate that a real and appreciable risk was not posed to the safety of children. The court emphasised the paramount concern of protecting children from child abuse and the importance of ensuring that individuals working with children do not pose a risk to their safety. In this instance, the court was satisfied that the provisions of section 30(1A) were met, as the Children’s Guardian had provided evidence to support the refusal of the enabling order. The court found that FZI had not demonstrated a sufficient change in circumstances to warrant an enabling order being granted.
Accordingly, the Tribunal dismissed the application for judicial review, and made orders declaring that FZI is not to be treated as a disqualified person for the purposes of the Act in respect of his conviction. The Tribunal also ordered that the Children’s Guardian is to grant the applicant a Working with Children Check Clearance, pursuant to subsection 28(6) of the Act.
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 conviction for “sexually touch a person without consent”, in contravention of s 61KC(a) of the Crimes Act 1900.
(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
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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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