FVC v Children’s Guardian [2023] NSWCATAD 129

FVC v Children’s Guardian [2023] NSWCATAD 129

The Tribunal refused the interim application because s 30(2) of the Child Protection (Working with Children) Act 2012 (NSW), as amended, no longer empowered the Tribunal to stay a determination on a s 28 application, and s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) did not apply because the enabling order application was not for review or re-examination of a decision by an external decision-maker. In any event, if jurisdiction existed, the applicant had not provided sufficient evidence to displace the statutory presumption that he posed a risk to the safety of children for the purposes of the interim order sought.

Jurisdiction
Australia
Judgment Date
31 May 2023
Procedural Posture
Application Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) for an Enabling Order, With an Application for a Stay or Other Interim Order / Interim Application Pending Final Determination of the Proceedings
Outcome
The applicant's application for a stay or other interim order was refused.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'stay or Interim Order' 'tribunal Jurisdiction']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'stay or Interim Order' 'tribunal Jurisdiction']

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Procedural Posture

Application Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) for an Enabling Order, With an Application for a Stay or Other Interim Order / Interim Application Pending Final Determination of the Proceedings

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to make interim orders declaring the applicant not to be treated as a disqualified person and granting a working with children check clearance pending final determination.' "Whether s 30(2) of the Child Protection (Working with Children) Act 2012 (NSW) empowered the Tribunal to stay the operation of a determination by the Children's Guardian on an application under s 28." 'Whether s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) empowered the Tribunal to make the interim orders sought.' 'If jurisdiction existed, whether the applicant had provided sufficient evidence to displace the presumption that he posed a risk to the safety of children for the purposes of interim relief.']

Ratio Decidendi

The Tribunal refused the interim application because s 30(2) of the Child Protection (Working with Children) Act 2012 (NSW), as amended, no longer empowered the Tribunal to stay a determination on a s 28 application, and s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) did not apply because the enabling order application was not for review or re-examination of a decision by an external decision-maker. In any event, if jurisdiction existed, the applicant had not provided sufficient evidence to displace the statutory presumption that he posed a risk to the safety of children for the purposes of the interim order sought.

Court Disposition

The applicant's application for a stay or other interim order was refused.

Orders

  • ["The applicant's application for a stay or other interim order is refused."]