FMO v Children’s Guardian [2023] NSWCATAD 85

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FMO v Children's Guardian [2023] NSWCATAD 85 Hearing dates: On the papers Date of orders: 06 March 2023 Decision date: 05 April 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: E Bishop SC, Senior Member Emeritus Prof. P Foreman AM, General Member Decision: (1) It is declared that the applicant is not to be treated as a disqualified person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of aggravated indecent assault contrary to section 61M of the Crimes Act 1900 (NSW) to which the applicant pleaded guilty in the Local Court on 13 June 2019 and for which a 12 month Conditional Release Order was made at Parramatta District Court on 7 August 2019 without a conviction being recorded. (2) The application for an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) dated 25 August 2022 is granted. (3) The Children's Guardian is to grant a working with children check clearance for the applicant pursuant to section 28(6) of the Child Protection (Working with Children) Act 2012 (NSW). (4) 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 these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Catchwords: CHILD WELFARE – working with children – clearance – application – disqualifying offence – enabling order – circumstances of offence – discharge of onus Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 5, 5B, 18, 23(1), 28, 30, Sch 2 Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) Crimes Act 1900 (NSW), s 61M(1) Cases Cited: BKE v Children's Guardian [2015] NSWSC 523 Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CRG v Children's Guardian [2017] NSWCATAD 295 CSW v Children's Guardian [2017] NSWCATAD 326 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 DAI v Children's Guardian [2017] NSWCATAD 308 Secretary, Department of Justice v LMB [2012] VSCA 143 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Category: Principal judgment Parties: FMO (Applicant) Office of the Children's Guardian (Respondent) Representation: Counsel: C Nowlan (Applicant)