FVO v Children's Guardian [2023] NSWCATAD 323

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FVO v Children's Guardian [2023] NSWCATAD 323 Hearing dates: 5 October 2023 Date of orders: 14 December 2023 Decision date: 14 December 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member K Stubbs, General Member Decision: 1. Order pursuant to section 28(1) of the Child Protection (Working with Children) Act 2012 declaring that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act in respect of the offence of Sexual Assaults contrary to Schedule 1, cl 352(1)(a) of the Criminal Code Act 1899 (Queensland). 2. The application for an enabling order is granted. 3. Order pursuant to section 28(6) of the Child Protection (Working with Children) Act that the Children's Guardian is to grant the applicant a Working with Children Check Clearance. 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: 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 finding on the balance of probabilities is able to be made - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1899 (Queensland) Evidence Act 1995 (NSW) Penalties and Sentences Act 1992 (Queensland) Cases Cited: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children's Guardian [2014] NSWCATAD 115 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 (1893) 6 R 67 (HL) BYR v Children's Guardian [2013] NSWADT 310 BZU v Children's Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 CGR v Office of Children's Guardian [2018] NSWSC 26 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BQJ [2016] NSWSC 869 Children's Guardian v CFW [2016] NSWSC 1406 Children's Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children's Guardian [2016] NSWSC 738 CLK v Children's Guardian [2016] NSWCATAD 183 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 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 Commissioner for Children and Young People v VR [2012] NSWSC 1385 CSZ v Children's Guardian [2017] NSWCATAD 57 CXZ v Children's Guardian [2020] NSWCA 338 Isles & Nelissen [2022] FedCFamC1A 97. Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590. Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re A Solicitor's Clerk [1957] 1 WLR 1219 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 ZZ v Secretary, Department of Justice [2013] VSC 267 Texts Cited: None cited Category: Principal judgment Parties: FVO (Applicant) Children's Guardian (Respondent) Representation: Applicant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2023/00168352 Publication restriction: 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.