FPV v Children's Guardian

[2023] NSWCATAD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPV v Children’s Guardian [2023] NSWCATAD 59

Hearing dates:

22 February 2023

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
Emeritus Professor P J Foreman AM, General Member (Community)

Decision:

(1) The order made on 1 December 2022, under s64(1)(a) of the Civil and Administrative Tribunal Act 2013, in respect of the publication or broadcast of the name of the applicant, is confirmed/continued.

(2) The decision of the respondent on Internal Review dated 31 October 2022 to issue FPV with an exclusion and refuse to grant FPV a clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk – credibility of witness evidence – personal harm – detrimental effect on person – whether conduct poses a risk of personal harm – non publication order – whether open justice served – whether risk to applicant

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

National Disability Insurance Scheme (Worker Checks) Act 2018

Crimes (Sentencing Procedure) Act 1999

National Disability Insurance Scheme (Practice Standards - Worker Screening) Rules 2018 – Cth

National Disability Insurance Scheme Act 2013 (Cth)

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BFC v The Children's Guardian [2014] NSWCATAD 90,

BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

FBC v Children’s Guardian [2021] NSWCATAD 286

Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FPV (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00354623

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify that person.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing to grant him a clearance under the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW), the ‘NDIS Check Act’. The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that the applicant posed a risk of harm to persons with a…