Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FYU v Children’s Guardian [2024] NSWCATAD 112 Hearing dates: 19 December 2023 Date of orders: 30 April 2024 Decision date: 30 April 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member
R Royer, General MemberDecision: (1) The order made on 28 September 2023 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 in respect of the publication or broadcast of the name of the applicant is varied and now made in the following terms:
(i) Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.
(2) The decision of the respondent on Internal Review dated 14 July 2023 to issue FYU with an exclusion and refuse to grant FYU a NDIS Worker Check clearance is affirmed.
Catchwords: ADMINISTRATIVE LAW – NDIS Worker Checks – confidentiality - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant–– 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 – vulnerable persons
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Child Protection (Prohibited Employment) Act 1998 (repealed)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
Civil and Administrative Tribunal Rules 2014
National Disability Insurance Scheme (Worker Checks) Act 2018
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
Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 64
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
FBC v Children’s Guardian [2021] NSWCATAD 286
FMZ v Children’s Guardian [2023] NSWCATAD 86
FPV v Children’s Guardian [2023] NSWCATAD 59
Olunwabusor v Children’s Guardian [2023] NSWCATAD 199
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Saba v Children’s Guardian [2023] NSWCATAD 156
Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited: Nil
Category: Principal judgment Parties: FYU (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Solicitors:
M Whitbread (Respondent)
Spiritus Law Group…
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- AGLC
- FYU v Children's Guardian [2024] NSWCATAD 112
- Case
- [2024] NSWCATAD 112
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were whether the risk of harm that the Children's Guardian identified was real and appreciable, whether it was likely or significant, and whether the current risk of harm was such that it would have a detrimental effect on a person. Additionally, the tribunal needed to determine whether the applicant's conduct posed a risk of personal harm and whether a non-publication order should be made to prevent the disclosure of certain information.
The tribunal found that the risk of harm identified by the Children's Guardian was real and appreciable, and that the current risk of harm was likely to be significant. The tribunal gave considerable weight to the credibility of the witness evidence presented by the Children's Guardian and found that the applicant's conduct did pose a risk of personal harm. The tribunal also determined that a non-publication order was necessary to protect the privacy of vulnerable persons involved in the proceedings. Ultimately, the tribunal affirmed the decision of the Children's Guardian on internal review, issuing an exclusion and refusing FYU a NDIS Worker Check clearance.
The tribunal varied the order made on 28 September 2023, restricting the disclosure of the applicant's name, any children, victims, or evidence likely to identify them, any risk of harm reporter, or any non-expert witness. The tribunal found that this restriction served the open justice principle and protected the privacy of vulnerable persons involved in the proceedings.
Orders
Orders of the court
(1) The order made on 28 September 2023 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 in respect of the publication or broadcast of the name of the applicant is varied and now made in the following terms:
(i) Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.
(2) The decision of the respondent on Internal Review dated 14 July 2023 to issue FYU with an exclusion and refuse to grant FYU a NDIS Worker Check clearance is affirmed.
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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