GBW v Barnardos Australia - [2024] NSWCATAD 168

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GBW v Barnardos Australia [2024] NSWCATAD 168
Hearing dates: 28 May 2024 (on the papers)
Date of orders: 24 June 2024
Decision date: 24 June 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Decision:
(1)The application for an extension of time in which to file a review application is refused.
(2)The application is dismissed.

Catchwords:
ADMINISTRATIVE LAW — application under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998— application filed by authorised carer late— extension of time sought— where paramountcy principle applies.

Legislation Cited:
Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Tribunal Act 2013
Community Services (Complaints, Reviews and Monitoring) Act 1993

Cases Cited:
BKW v Department of Family and Community Services [2014] NSWCATAD 205
BKW v Department of Family and Community Services [2015] NSWCATAP 232
Choi v Secretary DCJ [2020] NSWCATAD 154
DWZ v Wandiyali [2019] NSWCATAD 190
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Jackson v Land and Housing Corporation [2014] NSWCATAP 22

Category: Procedural rulings
Parties: GBW (Applicant)
Barnardos Australia (Respondent)
Representation: Solicitors:
Hosking & Gosling Legal (Applicant)
Care Legal (Repondent)

File Number(s): 2024/00139035
Publication restriction: Pursuant to section 65 Civil and Administrative Tribunal Act 2013 an order is made that
a person must not, except with the consent of the Tribunal, publish or broadcast the name of any person -
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings in the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings in the Tribunal,
whether before or after the proceedings are disposed of.

REASONS FOR DECISION

On 9 May 2024 Dr Lucy, Senior Member, made orders under section 50 Civil and Administrative Tribunal Act 2013 and directions to dispense with a hearing and to proceed on the papers, having been satisfied that the issues for determination in this application can be adequately determined in the absence of the parties. The directions provided for the parties to provide submissions in support of the applicant’s application for an extension of time in which to file a review application. The parties consented to this course. The matter is listed on 20 June 2024 for further directions.
These are the reasons for the determination of the preliminary issue.
The applicant relies on the application dated 9 April 2024, the affidavit of the same date and an affidavit dated 16 April 2024 which adds a further attachment to the material relied upon.
The section 58 Administrative Decisions Review Act 1997 (ADR Act) documents were filed by the respondent on 17 May 2024.
The submissions of the applicant were received by email on 17 May 2024. The submissions of the respondent were received by email on 30 May 2024.
An administratively reviewable decision for…

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.

Continue reading GBW v Barnardos Australia

Details

AGLC: GBW v Barnardos Australia [2024] NSWCATAD 168
Case: [2024] NSWCATAD 168
Decision Date: 24 June 2024

CaseChat Overview and Summary

GBW sought to challenge an order made under the Children and Young Persons (Care and Protection) Act 1998 by the children's court. The review application was filed by an authorised carer, who was not the person who had applied to the children's court for the initial order. The application to the Federal Circuit and Family Court of Australia was filed outside the statutory time limits. The applicant sought an extension of time in which to file the review application. The court was required to decide whether the statutory time limits for filing the review application could be extended under section 245(1)(c) of the Federal Law Act 1990. The court also needed to consider the application in the context of the paramountcy principle under the Care and Protection Act.

The court found that the statutory time limits for filing the review application could not be extended as the applicant had not satisfied the court that there were exceptional circumstances warranting an extension. The court found that the paramountcy principle did not provide a sufficient ground to extend the statutory time limits. The court held that the application was filed too late and dismissed the application. The court held that the applicant had not demonstrated that the delay would not prejudice the respondent, nor had the applicant shown that the delay was in the best interests of the child. The court found that the application was not in the best interests of the child.

The application for an extension of time in which to file a review application was refused. The application was dismissed.

Orders

Orders of the court

(1)The application for an extension of time in which to file a review application is refused.

(2)The application is dismissed.

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

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Medium Neutral Citation:	GBW v Barnardos Australia [2024] NSWCATAD 168
Hearing dates:	28 May 2024 (on the papers)
Date of orders:	24 June 2024
Decision date:	24 June 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1)The application for an extension of time in which to file a review application is refused. (2)The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW — application under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998— application filed by authorised carer late— extension of time sought— where paramountcy principle applies.
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Reviews and Monitoring) Act 1993
Cases Cited:	BKW v Department of Family and Community Services [2014] NSWCATAD 205 BKW v Department of Family and Community Services [2015] NSWCATAP 232 Choi v Secretary DCJ [2020] NSWCATAD 154 DWZ v Wandiyali [2019] NSWCATAD 190 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Jackson v Land and Housing Corporation [2014] NSWCATAP 22
Category:	Procedural rulings
Parties:	GBW (Applicant) Barnardos Australia (Respondent)
Representation:	Solicitors: Hosking & Gosling Legal (Applicant) Care Legal (Repondent)
File Number(s):	2024/00139035
Publication restriction:	Pursuant to section 65 Civil and Administrative Tribunal Act 2013 an order is made that a person must not, except with the consent of the Tribunal, publish or broadcast the name of any person - (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings in the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings in the Tribunal, whether before or after the proceedings are disposed of.