FVC v Children's Guardian - [2023] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FVC v Children’s Guardian [2023] NSWCATAD 129
Hearing dates: 25 May 2023
Date of orders: 25 May 2023
Decision date: 31 May 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
(1) The applicant’s application for a stay or other interim order is refused.

Catchwords:
ADMINISTRATIVE REVIEW – Working with children check clearance – Where applicant is a disqualified person – Application for stay – Whether Tribunal has jurisdiction to grant a stay - Stay refused

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW), ss 18, 28, 30(2)
Child Protection (Working with Children) Amendment Act 2022 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 43, 64(1)(a)

Category: Consequential orders
Parties: FVC (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s): 2023/00144284
Publication restriction: With the exception of expert witnesses and officers of government agencies, the disclosure, by way of publication, 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.

REASONS FOR DECISION

The applicant is a disqualified person within the Child Protection (Working with Children) Act 2012 (NSW) (the Act). He has applied to the Tribunal, under s 28 of the Act, for an order declaring that he is not to be treated as a disqualified person for the purposes of the Act in respect of an offence he committed over 30 years ago. That type of application is referred to in s 28 of the Act as an application for an enabling order.
The applicant also applied for an interim order declaring that he is not to be treated as a disqualified person and an interim order granting him a working with children check clearance, pending the final determination of the proceedings.
On 25 May 2023, following a short hearing, I refused his application for an interim order. These are my reasons for doing so.

Does the Tribunal have jurisdiction to make the order sought?

The Children’s Guardian submitted that the Tribunal does not have jurisdiction to make the interim orders sought by the applicant.
The Children’s Guardian points out that, before the Child Protection (Working with Children) Amendment Act 2022 (NSW) (the Amendment Act) was assented to on 1 July 2022, s 30(2) of the Act provided:

30 Determination of applications and other matters
…
(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

The effect of the Amendment Act was to remove the…

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.

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Details

Case: [2023] NSWCATAD 129
Decision Date: 31 May 2023

CaseChat Overview and Summary

The parties involved in this case were the applicant, referred to as FVC, and the Children's Guardian. The dispute centred on the applicant's application for a working with children check clearance. FVC, who is a disqualified person, sought a stay of the decision to refuse the clearance. The case was heard by the Tribunal, which was tasked with determining whether it had the jurisdiction to grant such a stay. The primary legal issue the court needed to resolve was whether the Tribunal possessed the authority to issue a stay in this context. This question was critical, as it directly impacted the applicant's ability to secure a working with children check clearance despite being a disqualified person.

The Tribunal commenced its analysis by examining the statutory framework governing working with children checks, alongside the relevant administrative laws that pertain to the Tribunal's powers. The court determined that the statutory provisions did not explicitly grant the Tribunal the authority to issue a stay in this scenario. Furthermore, the court held that the legislative intent did not support such a power being vested in the Tribunal. The court's reasoning was grounded in the statutory language and the broader legislative objectives, which were aimed at protecting children and ensuring that individuals who are disqualified do not obtain clearances. Given this analysis, the Tribunal concluded that it did not have the jurisdiction to grant a stay.

In light of the above findings, the Tribunal ruled that the applicant's application for a stay or other interim order must be refused. The decision was unequivocal in affirming that the Tribunal lacked the requisite jurisdiction to intervene in this manner. The court's decision underscored the importance of adhering to statutory mandates and legislative intent when exercising judicial powers. The final order of the Tribunal was to deny the applicant's request for a stay, thereby upholding the original decision to refuse the working with children check clearance.

Orders

Orders of the court

(1) The applicant’s application for a stay or other interim order is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FVC v Children’s Guardian [2023] NSWCATAD 129
Hearing dates:	25 May 2023
Date of orders:	25 May 2023
Decision date:	31 May 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) The applicant’s application for a stay or other interim order is refused.
Catchwords:	ADMINISTRATIVE REVIEW – Working with children check clearance – Where applicant is a disqualified person – Application for stay – Whether Tribunal has jurisdiction to grant a stay - Stay refused
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW), ss 18, 28, 30(2) Child Protection (Working with Children) Amendment Act 2022 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 43, 64(1)(a)
Category:	Consequential orders
Parties:	FVC (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Applicant (self-represented) Crown Solicitor (Respondent)
File Number(s):	2023/00144284
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the disclosure, by way of publication, 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.