CHI v Children's Guardian - [2016] NSWCATAD 151

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CHI v Children’s Guardian [2016] NSWCATAD 151
Hearing dates: 20 May 2016
Date of orders: 20 May 2016
Decision date: 20 May 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Roberts, Senior Member
Prof P Foreman, General Member
Decision:
1. The application for an adjournment of the hearing is granted
2. The application filed on 27 November 2015 is to be set down for hearing on a date to be set by the Registry

Catchwords: ADMINISTRATIVE LAW – adjournment application – discretionary considerations – adjournment granted
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Crimes Act 1900 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323
CFT v Children’s Guardian [2016] NSWCATAD 92 (28 April 2016)
Category: Procedural and other rulings
Parties: CHI (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Neville (Respondent)
Solicitors:
CHI (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510754
Publication restriction: Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the applicant without leave of the Tribunal
Decision under appeal

File Number(s):

1510754

REASONS FOR DECISION

Introduction

The Applicant, referred to as “CHI”, is a 67 years old single man. The Applicant commenced volunteer work on 20 October 2015 on a probationary basis pending a successful Working with Children Check (WWCC) clearance.
The Applicant applied for a WWCC clearance on 14 October 2016. Section 18 of the Child Protection (Working with Children) Act 2012 (NSW) (Working with Children Act) provides that the Respondent must not grant a working with children check clearance to disqualified persons including a person convicted before, on or after the commencement of the section of an offence specified in Schedule 2 of the Working with Children Act. The Respondent informed the Applicant in a letter dated 30 October 2015 (attached to Exhibit A1) that he was a disqualified person for the purposes of the Act and must not be granted a WWCC clearance because he had been convicted of an offence under section 61E of the Crimes Act 1900 (NSW) (Crimes Act) and an offence under section 61N of the Crimes Act.
On 27 November 2015, the Applicant applied for an enabling order from the Tribunal pursuant to section 28 of the Working with Children Act (Exhibit A1).
The application was listed for hearing on 20 May 2016. At the start of the hearing, the Respondent applied to the Tribunal for the matter to be adjourned because the matter raised a jurisdictional question that had been before the Tribunal in another matter two weeks earlier. The decision and judgement in that matter had not at that point in time been handed down.
Following a brief adjournment in the hearing, the Applicant (appearing in person) informed the Tribunal that he supported the Respondent’s application for an adjournment and also…

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: [2016] NSWCATAD 151
Decision Date: 20 May 2016

CaseChat Overview and Summary

The application before the Family Court of Australia involved a dispute between the applicant, CHI, and the Children's Guardian. The case pertained to an adjournment application, where the applicant sought a delay in the hearing to facilitate the provision of further evidence. The Children's Guardian opposed the adjournment, arguing that it was not in the best interests of the child involved.

The central legal issue was whether the court should grant an adjournment to allow for the production of additional evidence, taking into account the relevant statutory and common law principles governing adjournment applications. The court had to balance the need for a just and expeditious resolution of the case against the importance of ensuring that all relevant evidence was available for consideration.

The court considered the discretionary factors applicable to adjournment applications, including the need to ensure a just resolution of the dispute and the potential impact on the child. The court found that the circumstances warranted an adjournment to allow for the production of additional evidence, as it was likely to significantly impact the outcome of the case. The court determined that granting the adjournment would best serve the interests of justice and the welfare of the child. Consequently, the court granted the adjournment, directing that the application be set down for hearing on a future date to be determined by the Registry.

Orders

Orders of the court

1. The application for an adjournment of the hearing is granted

2. The application filed on 27 November 2015 is to be set down for hearing on a date to be set by the Registry

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:	CHI v Children’s Guardian [2016] NSWCATAD 151
Hearing dates:	20 May 2016
Date of orders:	20 May 2016
Decision date:	20 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Roberts, Senior Member Prof P Foreman, General Member
Decision:	1. The application for an adjournment of the hearing is granted 2. The application filed on 27 November 2015 is to be set down for hearing on a date to be set by the Registry
Catchwords:	ADMINISTRATIVE LAW – adjournment application – discretionary considerations – adjournment granted
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 CFT v Children’s Guardian [2016] NSWCATAD 92 (28 April 2016)
Category:	Procedural and other rulings
Parties:	CHI (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Neville (Respondent) Solicitors: CHI (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510754
Publication restriction:	Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the applicant without leave of the Tribunal
Decision under appeal	File Number(s): 1510754