FVJ v Children's Guardian

Case [2023] NSWCATAD 327


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FVJ v Children's Guardian [2023] NSWCATAD 327
Hearing dates: 21 September 2023
Date of orders: 19 December 2023
Decision date: 19 December 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:

1. Order that the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 18 May 2023 be dismissed.

2. 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

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AGLC
FVJ v Children's Guardian [2023] NSWCATAD 327
Case
[2023] NSWCATAD 327
Decision Date

CaseChat Overview and Summary

In the case of FVJ v Children's Guardian, the applicant sought an enabling order under section 28 of the Child Protection (Working with Children) Act 2012. The applicant, who had previously been disqualified from working with children, aimed to gain permission to engage in such activities. The Children’s Guardian opposed the application, asserting that the paramount concern was to protect children from potential abuse. The dispute was brought before the court to determine the legal standards and burden of proof required in such applications, as well as the level of risk that would warrant refusal of the enabling order.

The primary legal issues the court addressed were the criteria for granting an enabling order under section 28 of the Act and the burden of proof required to substantiate the refusal. Specifically, the court examined whether the finding of an unacceptable risk of harm could be established on the balance of probabilities and whether this risk needed to be more than a mere possibility. The court also considered the extent to which the risk posed by the applicant had to be real and appreciable to justify the Guardian's refusal.

The court concluded that the Guardian had met the necessary burden of proof to justify the refusal of the enabling order. The court found that there was a real and appreciable risk that the applicant would cause harm to children, which was sufficient to meet the standard of proof on the balance of probabilities. The applicant's history and the potential for harm to children weighed heavily in the decision. Consequently, the application for an enabling order was dismissed, and the court upheld the Children's Guardian's refusal to permit the applicant to work with children.

Additionally, the court issued an order prohibiting the publication or broadcast of the names of individuals involved in the proceedings, except for expert witnesses and officers of government agencies, to protect the privacy of those involved, in line with section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Orders

Orders of the court

1. Order that the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 18 May 2023 be dismissed.

2. 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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