GFO v Children's Guardian - [2024] NSWCATAD 346

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GFO v Children’s Guardian [2024] NSWCATAD 346
Hearing dates: 31 July 2024
Date of orders: 18 November 2024
Decision date: 18 November 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Mulvey, Senior Member
R Royer, General Member
Decision:
Dismiss the application.

Catchwords:
ADMINISTRATIVE LAW – Child protection – Working with children – enabling order - whether applicant poses a risk to the safety of children – teacher student relationship - where applicant has not displaced the presumption after being found guilty of a sexual offence against a child – 29 years since the date of offending

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)

Cases Cited: BKE v Office of the Children’s Guardian [2015] NSWSC 523
CXZ v Children’s Guardian [2020] NSWCA 338
CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262
Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255
Office of the Children’s Guardian v EQE (2002) NSWSC 871
VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267
Category: Principal judgment
Parties: GFO (Applicant)
Children’s Guardian (Respondent)
Representation:
Applicant (Self-Represented)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2024/00055349
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings is prohibited.

REASONS FOR DECISION

This is an application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”).
The applicant, who is referred to as GFO, is declared a “disqualified person” under the Act. A disqualified person is prohibited from being granted a working with children check clearance (“WWCCC”), unless otherwise ordered by this Tribunal. GFO is a disqualified person because, on 18 April 1996 he was convicted of two counts of sexual intercourse with person between the age of 10 and 16 years (“the disqualifying offence”) contrary to s 66C(1) (now amended) of the Crimes Act 1900 (NSW) (“Crimes Act”). He is presumed under the Act to be a risk to the safety of children.
GFO requires a WWCCC to enable him to pursue his career as a teacher.
The Children’s Guardian (the “respondent”) is responsible for administering the WWCCC regime. Before the respondent can issue GFO with a WWCCC, the Tribunal must decide whether, or not, to declare that he is not a disqualified person for the purposes of the Act, and if so, decide if he should be granted a WWCCC.

Non-publication order

The Tribunal made an order prohibiting the disclosure of the name of the applicant, his victims and of evidence given and received in the Tribunal hearing or in relation to the proceedings…

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 GFO v Children's Guardian

Details

AGLC: GFO v Children's Guardian [2024] NSWCATAD 346
Case: [2024] NSWCATAD 346
Decision Date: 18 November 2024

CaseChat Overview and Summary

In the Family Court of Australia, GFO sought an enabling order to work with children, which was opposed by the Children's Guardian. GFO had been found guilty of a sexual offence against a child 29 years prior. The central issue was whether GFO posed a risk to the safety of children, despite the significant passage of time since the offence. The court had to balance GFO's rehabilitation and the length of time since the offence against the potential risk to children if the order were granted.

The court examined the nature of the offence, the time elapsed, and GFO's conduct since the offence. It considered whether the presumption of risk had been displaced by GFO's rehabilitation efforts and the absence of any further offending. The court held that the presumption of risk had not been sufficiently displaced. It noted the gravity of the offence and the inherent vulnerability of children in a teacher-student relationship, concluding that the risk to children remained significant.

Consequently, the application was dismissed. The court found that GFO had not met the threshold required to displace the presumption that they posed a risk to children, despite the lengthy period since the offence. The potential for harm, particularly in a teaching environment, outweighed the arguments for granting the enabling order.

Orders

Orders of the court

Dismiss the application.

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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Medium Neutral Citation:	GFO v Children’s Guardian [2024] NSWCATAD 346
Hearing dates:	31 July 2024
Date of orders:	18 November 2024
Decision date:	18 November 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member R Royer, General Member
Decision:	Dismiss the application.
Catchwords:	ADMINISTRATIVE LAW – Child protection – Working with children – enabling order - whether applicant poses a risk to the safety of children – teacher student relationship - where applicant has not displaced the presumption after being found guilty of a sexual offence against a child – 29 years since the date of offending
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian [2015] NSWSC 523 CXZ v Children’s Guardian [2020] NSWCA 338 CYY v Children’s Guardian (No 2) [2017] NSW NSWCATAD 262 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 Office of the Children’s Guardian v EQE (2002) NSWSC 871 VQB v The Secretary of the Department of Justice (Review and Regulation) (2013) VCAT 789 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	GFO (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (Self-Represented) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2024/00055349
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings is prohibited.