Board of Studies, Teaching and Educational Standards v Vandenbovenkamp [2016] NSWCA 268

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Board of Studies, Teaching and Educational Standards v Vandenbovenkamp [2016] NSWCA 268 Hearing dates: 30 June 2016 Decision date: 22 September 2016 Before: Ward JA at [1]; Leeming JA at [119]; Payne JA at [120] Decision: (1) Leave to appeal be granted and the appeal allowed. (2) The orders of the Appeal Panel made on 4 December 2015 and 8 February 2016 be set aside and in lieu thereof order that: (a) the appeal to the Appeal Panel be allowed; (b) the order of the Tribunal made on 13 April 2015 be set aside and the application to the Tribunal be dismissed. (3) The Court notes the agreement of the applicant to pay the respondent's costs of the appeal at New South Wales Crown rates. Catchwords: ADMINISTRATIVE LAW – judicial review – application to register children for home schooling – where joint parenting order in place and one parent does not consent to application – whether decision maker required to refuse application on that ground – meaning of "joint parental responsibility" – whether joint parenting order has the effect that parents subject to order are no longer "parents" within meaning of Education Act 1990 (NSW), s 71 for lack of capacity – whether operational inconsistency between Federal order and State legislation Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Board of Studies, Teaching and Educational Standards Act 2013 (NSW), s 4(1) Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) Constitution (Cth), s 109 Corporations Act 2001 (Cth), s 125 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 16 Education Act 1990 (NSW), ss 3(1), 4, 5, 6(1)(a), 22, 22B, 22D, 23, 26, 26B(2), 26E, 26G, 26H, 26I, 26J, 26K, 33, 33A, 34, 70, 71, 72, 73(3), 107(1)(d), 108(1), 119, Pt 7 Div 6 Family Law Act 1975 (Cth), ss 35, 61B, 61C, 61D, 64B, 65DAC, 65P, 112AP, Div 13A Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Guardianship Act 1987 (NSW), s 21 Interpretation Act 1987 (NSW), s 8(b) Judiciary Act 1903 (Cth), s 78B Supreme Court Act 1970 (NSW), s 48(2)(f) Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bell Group NV (in liq) v Western Australia (2016) 90 ALJR 655; [2016] HCA 21 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 Board of Studies, Teaching and Educational Standards v Vandenbovenkamp [2015] NSWCATAP 261 Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346 In the Marriage of B (1997) 140 FLR 11; [1997] FLC 92-755 In the Marriage of Chandler (1981) 6 Fam LR 736; [1981] FLC 91-008 In the Marriage of Cullen (1981) 8 Fam LR 35; [1981] FLC 91-113 In the Marriage of McEnearney [1980] FLC 90-866 In the Marriage of Todd (No 2) (1976) 25 FLR 260; [1976] FLC 90-008 In the Marriage of Vlug and Poulos (1997) 141 FLR 244; [1997] FLC 92-778 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 P v P (1994) 181 CLR 583; [1994] HCA 20 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 Vandenbovenkamp v Board of Studies, Teaching and Educational Standards NSW [2015] NSWCATAD 68 Texts Cited: A Dickey, Family Law (6th ed, 2014, Thomson Reuters) Commonwealth Parliament, Joint Select Committee, Report by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (November 1992) L Young, G Monahan, A Sifis and R Carroll, Family Law in Australia (8th ed, 2013, LexisNexis) Category: Principal judgment Parties: Board of Studies, Teaching and Educational Standards (Applicant) Deborah Vandenbovenkamp (Respondent) Representation: Counsel: N Hutley SC and P Herzfeld (Applicant) JK Kirk SC and Ms ZCF Heger (Respondent)