FYK v Children’s Guardian [2024] NSWCATAD 235

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FYK v Children's Guardian [2024] NSWCATAD 235 Hearing dates: 22 February 2024 Date of orders: 13 August 2024 Decision date: 13 August 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: A Starke, Senior Member P Foreman, General Member Decision: (1) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of sexual intercourse without consent contrary to s 61D(1) (repealed) of the Crimes Act 1900 of which he was convicted on 24 October 1990. (2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal orders the Children's Guardian to grant the applicant a clearance forthwith. Catchwords: ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a "disqualified person" – subsequent criminal history indicating a tendency to be verbally and physically abusive – whether the applicant has rehabilitated such that he does not pose a risk to the safety of children Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW) (repealed) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 CHB v Children's Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949 CRG v Children's Guardian [2017] NSWCATAD 295 CTE v Children's Guardian [2018] NSWCATAD 28 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 CXZ v Children's Guardian [2020] NSWCA 338 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Office of the Children's Guardian [2015] NSWSC 523 DAI v Children's Guardian [2017] NSWCATAD 308 Director of Public Prosecutions v Smith [1991] 1 VR 63 EOL v Children's Guardian [2021] NSWCATAD 146 Hogan v Hinch (2011) 243 CLR 506 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 Smith v Commissioner of Police [2014] NSWCATAD 184 PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 ZZ v Secretary Department of Justice [2013] VSC 267 Category: Principal judgment Parties: FYK (Applicant) Children's Guardian (Respondent) Representation: Counsel: C Chiam (Respondent)