GR v Department of Communities & Justice

[2020] NSWSC 1622

Supreme Court

New South Wales

Medium Neutral Citation:

GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622

Hearing dates:

6, 10 November 2020
Further submissions received from first and second and third defendants on 11 November and from the plaintiff on 12 November 2020

Decision date:

16 November 2020

Jurisdiction:

Equity

Before:

Sackar J

Decision:

See [91], [107]-[109]

Catchwords:

CHILD WELFARE — Care proceedings — Independent Legal Representative for the child or young person — Whether Independent Legal Representative for the child should be removed or replaced

CHILD WELFARE — Care proceedings — Guardian ad litem — Whether s 98(2A) of the Children and Young Persons (Care and Protection) Act1998 (NSW) requires the Court to appoint a guardian ad litem where child or young person is a party to the proceedings and the Court is of the opinion that they are incapable of giving proper instructions to a legal representative — Interaction between ss 98(2A), 100 and 101 of the Children and Young Persons (Care and Protection) Act1998 (NSW)

CHILD WELFARE — Care proceedings — Parties to care proceedings — Whether Independent Legal Representative for the child or young person should be a party to proceedings — Whether child or young person should be a party to care proceedings

Legislation Cited:

Children and Young Persons (Care and Protection) Act1998 (NSW) ss 10, 91, 93, 98, 98(2A), 99, 99A, 99C, 99D, 100, 101

Children’s Court Act 1987 (NSW) s 22A

Children’s Court Regulation 2019 (NSW) cl 5(1)

Civil Procedure Act2005 (NSW) s 3

Evidence Act 1995 (NSW)

Interpretation Act 1987 (NSW) s 21

Cases Cited:

A v A [2015] NSWSC 1778

Bobolas v Waverley Council [2012] NSWCA 126

Briginshaw v Briginshaw (1938) 60 CLR 336

City of Swan [2010] WASC 204

Dalle-Molle v Manos (2004) 88 SASR 193

David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749

FaCS v Davidson and Simpson Children [2012] NSWChC 10

Gibbons v Wright (1954) 91 CLR 423

Goddard Elliot v Fritsch [2012] VSC 87

Gurtner v Circuit [1968] 2 QB 587

Levy v Victoria (1997) 189 CLR 579

Masterman-Lister [2003] 1 WLR 1511

News Ltd And Others v Australian Rugby Football League Ltd And Others (1996) 139 ALR 193

Owners of Strata Plan No 23007 (2006) 153 FCR 398

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Re Jayden [2007] NSWCA 35

Re Sally [2011] NSWSC 1696

Secretary of Dept of Health and Community Services v JWB and SMB (1990) 175 CLR 218

SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

Trop Nominees Pty Ltd v Liquor Licensing Cmr (1987) 46 SASR 255

White v Fell (Unreported, Queen’s Bench of the High Court of Justice, 12 November 1987)

Texts Cited:

A V Dicey, A Treatise on the Rules for the Selection of the Parties to an Action (William Maxwell & Son, 1870)

Category:

Procedural and other rulings

Parties:

GR (mother) (plaintiff)
Secretary, Department of Communities and Justice (first defendant)
Minister for Families, Communities and Disability Services (second defendant)
The father (third defendant)
Ms K Wooi (Independent Legal Representative for AB and fourth defendant)
The young person, AB (fifth defendant)

Representation:

Counsel:
GR (self represented)
M Anderson (first & second defendants)
The father (self represented)
Mrs E Stolier (for Independent Legal Representative, fourth defendant)

Solicitors:
GR (self represented)
NSW Crown Solicitor (first & second defendants)
The father (self represented)
Ms K Wooi (Independent Legal Representative for AB)

File Number(s):

2020/123080

Publication restriction:

Restriction on publication of anything that might identify the child

Judgment

1. In her most recent application GR moves the Court for the removal of the Independent Legal Representative (ILR), Ms Wooi, and in lieu a regime whereby AB is able to instruct his own lawyers. GR proposes the appointment of Mr Mark Whelan as Direct Legal Representative (DLR) for the child.

2. However in an email dated 10 November 2020 which was provided to the Court Mr Whelan informed GR that “assignment of a rep for a child is entirely a matter for Legal Aid NSW. You should be communicating with them not me.” In a subsequent email of the same date which was also provided to the Court Mr Whelan told Ms Wooi and Ms Mooney of the Crown Solicitor’s Office that “I confirm I am not seeking appointment as DLR in this matter and indeed it would be inappropriate for me to do so as such assignments are made by Legal Aid based on their own criteria.”

3. The child’s father supports GR’s application he says “with qualification”.

4. The application is opposed by Ms Wooi.

5. I note that before me commencing on 18 November 2020 at the present date for a number of days are two applications brought by GR, namely a statutory appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Care Act’) from final orders made by Judge Johnstone, President of the Children’s Court on 3 April 2020 and a judicial review application in relation to those same orders.

6. On 22 May 2020 Slattery J made AB a party to the proceedings, noting that Uniform Civil Procedure Rule 2005 (NSW) (UCPR) r 50.18(b) “requires that the defendants in an appeal against the decision in respect of the care of the child should include the child if the child is above the age of ten years and is not the plaintiff” (GR v Secretary, Department of Communities and Justice & Ors [2020] NSWSC 607 at [8]). It was not raised with his Honour at the time it seems that it may not have been necessary to join AB as a party and that UCPR r 50.18 might have been dispensed with. Although it is not entirely clear how AB came to be joined as a party, whether following argument or otherwise, it seems Slattery J felt it was the appropriate procedural step to take.

7. When GR’s application for the removal of Ms Wooi came before me on 6 November 2020 I raised the question of whether a guardian ad litem ought to be appointed pursuant to s 98(2A) of the Children and Young Persons (Care and Protection) Act1998 (NSW) (the ‘Care Act’) due to AB having been joined as a party.

8. I also referred the parties to the comments of the Court of Appeal in Re Jayden [2007] NSWCA 35 at [100]-[103] (Ipp JA, Beazley and Hodgson JJA agreeing) and SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [52] (Basten JA) and [91] (Simpson JA) concerning the anomalous practice of a child or young person’s legal representative being joined as a party to care proceedings. Ms Wooi is a party to these proceedings and Slattery J noted that at least in his Honour’s view she was properly joined (GR v Secretary, Department of Communities and Justice & Ors [2020] NSWSC 607 at [8]).

9. The other parties agreed that they would benefit from an opportunity to put on further submissions and the hearing was adjourned to 10 November 2020 to allow that to occur.

10. During the hearing on 10 November there was debate concerning the proper construction of s 98(2A) and its interaction with the regime provided for in s 100 of the Care Act. Mr Anderson, counsel for the first and second defendants, sought an opportunity to put on further submissions. Those were provided on 11 November 2020. AB’s father also provided further written submissions on 11 November 2020 and GR provided further submissions on 12 November 2020.

11. Therefore the issues dealt with in this judgment are first whether a guardian ad litem ought to be appointed for AB and second whether the ILR Ms Wooi ought to be removed or replaced and also whether she should remain a party to the proceedings.

Submissions

GR

12. GR raises three complaints in relation to Ms Wooi. First that she was never validly appointed as an ILR. She submits that Ms Wooi was appointed as a DLR but commenced to act as an ILR without being appointed to do so by the Court. She also states that on 9 September 2019 Judge Johnstone made an arbitrary decision to grant Ms Wooi ILR status because he prefers legal representatives to act as ILRs rather than DLRs.

13. Second GR submits Ms Wooi has not discharged her duties as an ILR or DLR. In particular, GR submits that AB has been consistently told that there is no legal proceedings concerning him and the judge won’t change his mind and he cannot return home for nine years. She says that Ms Wooi failed to ensure that all relevant evidence was placed before the Children’s Court and tested during the s 61 and s 90 proceedings. She also submits that she has colluded with FACS rather than acting independently.

14. And finally GR submits that AB is able to instruct a lawyer. She submits that Ms Wooi’s statements to the Court that AB is not capable of instructing a lawyer were unsupported by medical evidence. She further submits that it is not open to the Court on the basis of the current medical evidence to find that AB is not capable of instructing a lawyer and therefore to appoint a guardian ad litem.

15. GR also opposes the appointment of a guardian ad litem because it would introduce another intermediary which risks error in the transmission of messages from AB to the Court. She suggests AB be provided with a list of questions in a form to which he could respond in writing preceded by an explanation of the current proceedings in a language AB can understand (s 95 of the Care Act).

16. GR submits that Ms Wooi should not be joined as a defendant whilst she also acts as the legal representative for another defendant. She further submits that Mrs Stolier cannot represent both Ms Wooi and AB. She suggests an agent should be appointed to assist AB to appear and who can report directly to the Court.

AB’s father

17. AB’s father also submits that Ms Wooi failed to discharge her duty to ensure all relevant evidence was adduced and tested in the Children’s Court and that there does not appear to be any clear decision appointing her as an ILR.

18. However his main concern is Mrs Stolier’s agreement with the submissions of the Secretary in the Children’s Court proceedings in January of this year.

19. He also submits that it is inconceivable that AB would not be capable of giving direct instructions to his legal representative following 20 months in care and the inference is that AB’s condition has worsened whilst he has been in care.

20. AB’s father also provided written submissions on the apparent inconsistency between UCPR r 50.18 and the amended text of s 99. He submits that Slattery J should have joined AB as the fourth defendant and appointed Ms Wooi his DLR rather than an ILR and a defendant.

The Independent Legal Representative

21. Ms Wooi submits that she was appointed as an ILR in the original s 61 proceedings before the Children’s Court and in the s 90 proceedings in the Children’s Court. She provides numerous transcript references and paragraph references for Judge Johnstone’s 27 February 2020 and 3 April 2020 judgments which she says support that position. She also directed the Court to extracts from medical reports she provided throughout the Children’s Court proceedings which she submits supported her position that AB was incapable of giving proper instructions.

22. She submits she has met with AB on numerous occasions and participated in all substantive proceedings involving AB in the Children’s Court, the Supreme Court and the Court of Appeal. She says that she submitted to each of those Courts that AB wishes to go home.

23. She submits that she has obtained relevant updates regarding AB’s health and progress throughout the proceedings and relies upon the report of Dr Michael Fairley dated 2 November in opposition to GR’s application she be discharged.

24. Ms Wooi submits that AB is correctly joined as a party pursuant to UCPR r 50.18. She also submits that she is properly joined because if a DLR is appointed pursuant to s 99C(1) then it would be appropriate to nominate the DLR as a party and not the child. This she says is similar to the position in the Family Court of Australia where the Independent Children’s Lawyer is appointed as a party to proceedings rather than the child (s 68I Family Law Act 1975 (Cth)).

25. She submits that AB would meet the test of a “person under legal incapacity” in s 3 of the Civil Procedure Act 2005 (NSW) and due to noted cognitive impairments has been represented by an ILR rather than a DLR.

26. In her written submissions dated 8 November 2020 Mrs Stolier submitted on behalf of Ms Wooi that the question whether a guardian ad litem should be appointed is governed by s 100. However, during the hearing on 10 November 2020 Mrs Stolier agreed that s 98(2A) applied.

27. Ms Wooi submits that in the event a guardian ad litem is appointed it would be appropriate for her to continue acting as the legal representative for the guardian ad litem and AB.

First and second defendants

28. The first and second defendants submit that there is no definition of “party” in the Care Act. They submit that the effect of s 98(1) is that a child would have the same status (either as a party or not) to other persons named in s 98(1).

29. In relation to the proper construction of s 98(2A) of the Care Act the first and second defendants submit that the function of s 98(2A) is to direct the Court to consider the provisions set out in s 100 of the Act in the event the Court determines a child incapable of giving proper instructions to a legal representative. They submit that it would be open to the Court, when having regard to s 98(2A), to not appoint a guardian ad litem if the Court was not of the opinion that (a) there are special circumstances that warrant the appointment and (b) the child would benefit from the appointment.

30. They submit that interpreting s 98(2A) as a mandatory provision would render the reference to “under section 100” insignificant and having no work to do (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]).

31. They refer to paragraph [93] of Project Blue Sky where McHugh, Gummow, Kirby and Hayne JJ said that the distinction between “directory” and “mandatory” requirements has outlived its usefulness and “the real issue… is whether an act done in breach of the legislative provision is invalid.”

32. However they submit that if the function of s 98(2A) is mandatory rather than directory a consequence would be that in every matter where a child was a party to proceedings and required an ILR a guardian ad litem would also have to be appointed. This is not consistent they say with s 99A(2) of the Care Act which states that a legal representative for a child or young person is to act as an ILR if “(a) the child or young person is not capable of giving proper instructions, or (b) a guardian ad litem has been appointed for the child or young person.” They submit that if the intention of the legislature was to have both a guardian ad litem and an ILR appointed for a child who is incapable of giving proper instructions, s 99A(2) would have included the word “and” rather than “or”.

33. The first and second defendants submit that in the event that a child or young person is not considered to be a party to the proceedings, an anomaly would arise in respect of appeals pursuant to s 91 of the Care Act, whereby a child over the age of 10 would have an ILR appointed in the Children’s Court proceedings but would be required to have an ILR and a guardian appointed in an appeal. They submit that such an interpretation would appear to not be wholly consistent with the objects of the Care Act, which draw upon a child’s right to participate in court proceedings (s 10). They submit that a mandatory interpretation of 98(2A) would result in more instances in which both a guardian ad litem and ILR were appointed for a child which would lessen the child’s involvement in decision making and would not necessarily benefit the child.

34. The first and second defendants also refer to the Explanatory Memorandum and Second Reading Speech for the bill which introduced s 98(2A). It did not specifically refer to s 98(2A).

35. They further submit that the failure to appoint a guardian ad litem does not invalidate the appointment of the ILR, that failure to join or misjoinder does not invalidate or defeat proceedings (which appears apt to the process of appointment of a guardian ad litem), and that proceedings should be conducted with as little formality and legal technicality as possible (s 93 of the Care Act).

36. In relation to Ms Wooi’s current status as a party the first and second defendants submit that she is not a guardian ad litem and she should not have been named as a party in the proceedings as she is the ILR (SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [52] and [91]).

37. Finally they submit that the prior determinations as to the role undertaken by Ms Wooi as an ILR continue until varied by declaration of the Court.

The Statutory Framework

Powers and functions of the Court generally

38. An appeal brought pursuant to s 91 of the Care Act from a decision of the President of the Children’s Court is brought in this Court rather than the District Court pursuant to s 22A of the Children’s Court Act 1987 (NSW) and cl 5(1) of the Children’s Court Regulation 2019 (NSW).

39. Relevantly, s 91(4) of the Care Act provides that:

In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

40. Clause 5 of the Children’s Court Regulation provides:

5 Appeals etc under Children and Young Persons (Care and Protection) Act 1998

(1) An appeal or review under any of the following sections of the Children and Young Persons (Care and Protection) Act 1998 is, if the appeal or review relates to a decision of the Presidential Children’s Court, taken to be an appeal to (or a review by) the Supreme Court and is subject to any relevant rules of court applying to appeals to (or reviews by) the Supreme Court—

(a) section 91 (Appeals),

(b) section 91I (Right of appeal),

(c) section 109V (Powers of District Court and Children’s Court to hear fresh bail application),

(d) section 231K (Appeals),

(e) section 231O (Appeals).

(2) For the purposes of subclause (1), a reference to the District Court in section 91, 91I, 109V, 231C (1) (b), 231G (b), 231K or 231O of the Children and Young Persons (Care and Protection) Act 1998 is to be construed as including a reference to the Supreme Court.

41. Therefore in addition to any functions and discretions the Supreme Court otherwise has for the purposes of appeals it also has all the functions and discretions the Children’s Court has under Chapters 5 and 6 of the Care Act for the purposes of hearing and disposing with an appeal pursuant to s 91.

Appointment of a legal representative for the child

42. The Children’s Court (and the Supreme Court in these proceedings) has power to appoint a legal representative for the child pursuant to s 99(1) of the Care Act. Section 99 relevantly provides:

99 Appointment of legal representative by Children’s Court

(1) The Children’s Court may appoint a legal representative to act for a child or young person if it appears to the Children’s Court that the child or young person needs to be represented in any proceedings before it.

(2) A legal representative for a child or young person who has not been appointed by the Children’s Court may appear only with its leave.

(3) The Children’s Court may withdraw its leave at any time and for any reason (including the child or young person informing the Children’s Court that he or she does not wish to be represented by the legal representative).

43. Section 99A sets out the circumstances in which the legal representative is to act as a DLR or an ILR:

99A Legal representative to act as independent legal representative or direct legal representative

(1) A legal representative for a child or young person is to act as a direct legal representative if—

(a) the child or young person is capable of giving proper instructions, and

(b) a guardian ad litem has not been appointed for the child or young person.

(2) A legal representative for a child or young person is to act as an independent legal representative if—

(a) the child or young person is not capable of giving proper instructions, or

(b) a guardian ad litem has been appointed for the child or young person.

44. There is a presumption that a child of 12 years or older is capable of giving proper instructions which is not rebutted merely because they have a disability (s 99C).

45. The role of a legal representative for a child is set out in s 99D and notably the role of a DLR differs from that of an ILR:

99D Role of a legal representative

Without limiting the role of a legal representative for a child or young person in proceedings before the Children’s Court—

(a) the role of a direct legal representative includes the following—

(i) ensuring that the views of the child or young person are placed before the Children’s Court,

(ii) ensuring that all relevant evidence is adduced and, where necessary, tested,

(iii) acting on the instructions of the child or young person, and

(b) the role of an independent legal representative includes the following—

(i) if a guardian ad litem has been appointed for the child or young person—acting on the instructions of the guardian ad litem,

(ii) interviewing the child or young person after becoming the independent legal representative,

(iii) explaining to the child or young person the role of an independent legal representative,

(iv) presenting direct evidence to the Children’s Court about the child or young person and matters relevant to his or her safety, welfare and well-being,

(v) presenting evidence of the child’s or young person’s wishes (and in doing so the independent legal representative is not bound by the child’s or young person’s instructions),

(vi) ensuring that all relevant evidence is adduced and, where necessary, tested,

(vii) cross-examining the parties and their witnesses,

(viii) making applications and submissions to the Children’s Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,

(ix) lodging an appeal against an order of the Children’s Court if considered appropriate.

46. In Re Sally [2011] NSWSC 1696 (a decision concerning whether a legal representative for a child appointed pursuant to the Court’s parens patriae jurisdiction should act as an independent or direct legal representative) Slattery J stated at [12] and [16]:

12 … the critical difference between the two roles thus is that the Direct Legal Representative acts on instructions of the child but the Independent Legal Representative exercises a degree of independent judgment about what is in the child's or young person's best interests in setting the course on behalf of the child before the Court.

…

16 In Children’s Court proceedings Care Act, s 99 (sic) requires a legal representative to act as a Direct Legal Representative if the child or young person is capable of giving proper instructions. Care Act, s 99B expresses the statutory presumption that a child under 12 is incapable of giving proper instructions. Care Act, s 99C expresses a statutory presumption that a child over the age of 12 is capable of giving proper instructions. These provisions express the important standard that a child should have the benefit of a Direct Legal Representative so soon as he or she is capable of giving proper instructions.

Removal of the legal representative for the child

47. While s 99(1) of the Care Act clearly provides for the appointment of a legal representative for a child there is no provision that explicitly deals with replacement or removal.

48. Notably FaCS v Davidson and Simpson Children [2012] NSWChC 10 concerned a dispute that arose in relation to a decision by Legal Aid to reassign a grant of aid to the Aboriginal Legal Service without making application to the Children’s Court to have the appointment of the child’s legal representative, Mr Shirley (who was funded by Legal Aid) revoked. Mr Shirley submitted that Legal Aid had no right to replace him as the Court appointed legal representative “without an order from a Superior Court, on proper grounds being established, justifying his replacement” ([24]). He submitted that once the Children’s Court makes an appointment pursuant to s 99(1) it is functus officio and cannot then make an order appointing another representative ([26]). He submitted s 99(3) of the Act (which is set out above) applies only to situations covered by s 99(2) (also set out above) and does not apply to appointments under s 99(1) ([36]).

49. Magistrate Graham Blewitt AM accepted Mr Shirley’s submission that s 99(3) of the Act did not allow the Children’s Court to remove legal representatives appointed pursuant to s 99(1) (at [37]):

I find, in accepting Mr Shirley's submission in this regard, that section 99(3) only applies to the circumstances covered by section 99(2) and not section 99(1).

50. In conclusion his Honour commented (at [54):

In the absence of any such power under the Legal Aid Commission Act 1979, it was not proper, in my view, for Legal Aid NSW to make the decision to reassign the grant of legal aid to the Aboriginal Legal Service without making an application to the Children's Court, or a superior court, to have Mr Shirley's appointment as the legal representative for the children revoked, if such a power exists.

51. However in my view even if the Act does not explicitly or implicitly confer power upon the Court to remove a legal representative appointed to represent a child the Supreme Court would have inherent power to remove the legal representative under its parens patriae jurisdiction.

52. As the High Court explained in Secretary of Dept of Health and Community Services v JWB and SMB (1990) 175 CLR 218 (‘Marion’s Case’) there is no limitation on this jurisdiction; “it springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind” (258-259). It has been held clearly to extend to the “supervision of the appointment, and conduct, of tutors” (A v A [2015] NSWSC 1778 at [54]; see also Bobolas v Waverley Council [2012] NSWCA 126 at [60]).

53. I should note that neither the first and second defendants nor Ms Wooi objected to GR’s application on the basis that she or the father lacked standing to bring the application or on the basis that the Court lacks power to remove Ms Wooi (see also my previous decision in David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749 as to standing to bring an application to remove a tutor appointed under the UCPR regime).

Appointment of a guardian ad litem

54. Section 98 of the Care Act provides:

98 Right of appearance

(1) In any proceedings with respect to a child or young person—

(a) the child or young person and each person having parental responsibility for the child or young person, and

(b) the Secretary, and

(c) the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A) If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(my emphasis)

55. Sections 100 and 101 also relevantly provide:

100 Guardian ad litem—child or young person

(1) The Children’s Court may appoint a guardian ad litem for a child or young person if it is of the opinion that—

(a) there are special circumstances that warrant the appointment, and

(b) the child or young person will benefit from the appointment.

(2) Special circumstances that warrant the appointment of a guardian ad litem may include that the child or young person has special needs because of age, disability or illness or that the child or young person is, for any reason, not capable of giving proper instructions to a legal representative.

(3) The functions of a guardian ad litem of a child or young person are—

(a) to safeguard and represent the interests of the child or young person, and

(b) to instruct the legal representative of the child or young person.

(4) A legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.

101 Guardian ad litem and amicus curiae—parents of child or young person

(1) The Children’s Court may—

(a) appoint a guardian ad litem for either or both of the parents of a child or young person, or

(b) request the legal representative of a parent or the parents of a child or young person to act as amicus curiae,

if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.

(2) Circumstances that warrant the appointment of a guardian ad litem or a request for a legal representative to act as amicus curiae may include that the parent of a child or young person has an intellectual disability or is mentally ill.

(3) The functions of a guardian ad litem of a parent of a child or young person are—

(a) to safeguard and represent the interests of the parent, and

(b) to instruct the legal representative of the parent.

(4) A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.

56. As I have already set out above, the Supreme Court is placed in the position of the Children’s Court for the purposes of an appeal made to the Supreme Court from a decision of the President of the Children’s Court.

57. In my view the words “is to appoint a guardian ad litem” in s 98(2A) clearly direct that the Court must appoint a guardian ad litem for a person when it is of the opinion that the person is “a party to the proceedings” and is “incapable of giving proper instructions to a legal representative”.

58. This appears to conform with Basten J’s interpretation of the subsection in SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [48] and [53] where his Honour stated:

48 There is no doubt that the child has a right of appearance and a right to legal representation. [36] Indeed, where a person is unable to represent himself or herself adequately, the court may require that party to be legally represented [37] and, if satisfied that the party is incapable of giving proper instructions (as was the case with M), the Children’s Court “is to appoint a guardian ad litem”. [38]

…

53 In circumstances where a child can give no instructions, there may be doubt as to the value in joining the child as a party to the proceedings. In any event, that could only be done by the appointment of a guardian. Each party who has legal representation will either incur expense or will be a recipient from what is widely understood to be under-resourced legal aid. Apart from helpful submissions with respect to his own role, counsel for the independent legal representative in this Court had little of substance to add in respect of the grounds on which judicial review was sought. The time for re-evaluation of the practices and procedures with respect to both the role and representation of children of no capacity would appear to be long overdue.

(my emphasis)

59. Footnote 38 of his Honour’s decision referred to s 98(2A) of the Care Act.

60. The first and second defendants submit that interpreting s 98(2A) as a mandatory provision leaves the reference to “under section 100” insignificant and having no work to do. However the defendants’ construction leaves no work for the words “is to appoint” and renders the test “incapable of giving proper instructions” insignificant, given that ss 100 and 101 are in discretionary terms and apply different tests for the question of when it might be appropriate to appoint a guardian ad litem for a child or young person or either or both of their parents. In my view the reference to ss 100 and 101 is important because a guardian ad litem appointed under those sections will have the functions set out in either s 100(3) or 101(3).

61. Sections 100 and 101 also do not apply exclusively to parties to the proceedings like s 98(2A) does. The first and second defendants submit that s 98(2A) should not be construed as mandatory because that would mean that in every matter where a child or young person was a party and an ILR was appointed because the child or young person was incapable of giving proper instructions a guardian ad litem would also have to be appointed. However that is in my view exactly what the Act contemplates.

62. Section 100(1) provides that the Court may appoint a guardian ad litem for a child or young person (who is not necessarily a party) if there are special circumstances that warrant the appointment (which include but are not limited to incapacity to give proper legal instructions: s 100(2)) and the child or young person would benefit from the appointment. Section 99(1) allows the Court to appoint a legal representative to act for a child or young person (whether or not they are a party) “if it appears… that the child or young person needs to be represented”.

63. If the child is not a party to the proceedings and a legal representative is appointed the legal representative is to act as an ILR if the child or young person is not capable of giving proper instructions or a guardian ad litem has been appointed (s 99A(2)).

64. However if the child is a party to the proceedings and they are incapable of giving proper instructions the Court is to appoint a guardian ad litem and any legal representative appointed to represent the child is directed to act as an ILR and take instructions from the guardian ad litem (ss 99A(2)(b), 99D(b)(ii), 100(4)).

65. That construction which contemplates a different regime depending upon whether the child or young person is or is not a party to the proceedings is consistent with the use of the “or” in s 99A(2).

66. In SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [49] Basten JA noted:

The apparent inconsistency between the obligation of the court to appoint a guardian ad litem for a child who is not capable of giving proper instructions and the possibility envisaged by s 99A(2) that that may not have happened may be explained by the fact that the child may not be a party to the proceedings, although, in that case, it is difficult to see why the court would appoint a legal representative to act for the child.

67. It is clear that there is no definition of “party” in the Care Act and s 21 of the Interpretation Act 1987 (NSW) merely defines “party” to include “an individual, a corporation and a body corporate or politic”.

68. The first and second defendants submit a child would have the same status (either a party or not) as others named in s 98(1). Section 98(1) ensures that in any proceedings with respect to a child or young person, the child or young person, each person who has parental responsibility for them, and the Secretary and the Minister are able to appear or be legally represented. It is true that parties have a right to appear and be heard. In fact matters are not “effectively and completely ‘adjudicated upon’ unless… all those who would be liable to satisfy the judgment are given an opportunity to be heard” and such persons should ordinarily be joined as necessary parties to proceedings (Gurtner v Circuit [1968] 2 QB 587 at 602-603 (Diplock LJ); see also Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-6 (Diplock LJ)).

69. In News Ltd And Others v Australian Rugby Football League Ltd And Others (1996) 139 ALR 193 Lockhart, von Doussa and Sackville JJ held that the correct test to apply in determining whether a person ought to be joined as party to proceedings is whether their rights against or liabilities to any party in the action in respect of the subject matter of the action will be directly affected by any order which may be made in the action (at 298, following Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; see also A V Dicey, A Treatise on the Rules for the Selection of the Parties to an Action (William Maxwell & Son, 1870) pp 73, 76).

70. However the right to be heard is not exclusive to parties. For example courts have the power to allow submissions from amici curiae who are not parties but assist the court in relation to questions of law or fact (see, e.g. Levy v Victoria (1997) 189 CLR 579 at 604). Interveners who have a sufficient interest in proceedings are joined as parties (Trop Nominees Pty Ltd v Liquor Licensing Cmr (1987) 46 SASR 255).

71. And there are other consequences of being joined as a party to legal proceedings. For example parties are bound by the judgment (Gurtner v Circuit [1968] 2 QB 587 at 602-603 (Diplock LJ)). They are therefore subject to doctrines such as res judicata and Anshun estoppel (see e.g. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597-598). They may also have rights to appeal.

72. While I accept that an anomaly has arisen in this case because AB was not joined as a party to the proceedings in the Children’s Court that anomaly is due to Slattery J having formed the view that UCPR r 50.18 requires him to be joined as a party to the appeal. The need to consider s 98(2A) of the Care Act arises due to AB being joined as a party, albeit at this late stage.

73. Further as the first and second defendants point out there is no provision in the Care Act which specifies necessary parties to care proceedings in the Children’s Court. It has been noted that the procedures set out in the Care Act are somewhat ambivalent as to whether the child the subject of care proceedings should be a party to the proceedings but that the test in s 99 (“needs to be represented”) seems to imply that the child is not a necessary party (SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [47], [49]).

74. I see no reason why the usual considerations which focus upon the impact of curial proceedings on the legal rights of parties should not apply to the determination of proper parties in Children’s Court proceedings, in relation to the child or young person, their parents, the Secretary and the Minister for example, as well as an ILR for the child (in addition to the comments expressed in Re Jayden [2007] NSWCA 35 at [100]-[103] in that case). Although it has been said that “where a child can give no instructions, there may be doubt as to the value in joining the child as a party to the proceedings” (SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [53]). Yet there may be value in joining them otherwise and where the child or young person is joined as a party to the first instance Children’s Court proceedings anomalies such as that which has arisen in the present case would not arise.

75. Finally I do not accept that a “mandatory” construction of s 98(2A) is wholly inconsistent with the objects of the Care Act. It is concerned with circumstances in which the Court is of the opinion that the child or young person is incapable of providing proper instructions. The appointment of a guardian ad litem and/or a legal representative for a child or young person does not prevent the child or young person expressing their views, which the guardian ad litem and/or legal representative can put before the Court. However neither the guardian ad litem nor the legal representative, nor the Court, would be bound by those views. Section 10(2) of the Care Act also provides that in the application of the principle in that section “due regard must be had to the age and developmental capacity of the child or young person.”

Whether a guardian ad litem ought to be appointed

76. Confronted with the situation of AB having been joined as a party, and the question of his capability to give proper instructions having being raised in the course of GR’s application to have Ms Wooi removed, I am of the view that it is necessary to consider whether a guardian ad litem ought to be appointed pursuant to s 98(2A).

77. Given the view I have taken in relation to the construction of s 98(2A) the relevant question is whether I am of the opinion that AB is incapable of giving proper legal instructions to a legal representative.

78. In his Honour’s February 2020 judgment Judge Johnstone noted that AB had been declared to be not capable of giving proper instructions pursuant to s 99C(2) of the Care Act. However the date on which that declaration was made is unclear.

79. The Court was provided with a number of recent medical reports regarding AB. These included a Psychological Assessment Report by Ellis Hartland, DCJ Psychologist, dated 5 November 2020; a Psychiatric Report by Dr Michael Fairley dated 2 November 2020; a letter from Dr Madden dated 6 November 2020; a letter from Professor Stewart Einfeld dated 6 November 2020; and a report of Professor Einfeld dated 9 November 2020.

80. The question of whether a person is capable of giving proper legal instructions is not the same as asking whether they are capable of consenting to medical treatment or should have a financial manager appointed for example. As Dixon CJ, Kitto and Taylor JJ stated in Gibbons v Wright (1954) 91 CLR 423 at 437:

The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable

81. In Masterman-Lister [2003] 1 WLR 1511 at 1521 [18] Kennedy LJ applied the approach adopted by Boreham J in White v Fell (Unreported, Queen’s Bench of the High Court of Justice, 12 November 1987) to the issue of mental capacity to participate in legal proceedings and enter legal transactions:

To have that capacity [he or she] requires first the insight and understanding of the fact that [he or she] has a problem in respect of which [he or she] needs advice … Secondly, having identified the problem, it will be necessary for [him or her] to seek an appropriate adviser and to instruct [him or her] with sufficient clarity to enable [him or her] to understand the problem and to advise [him or her] appropriately … Finally, [he or she] needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as [he or she] may receive.

82. This approach has been favoured in Australia (see, e.g., Goddard Elliot v Fritsch [2012] VSC 87 at [557]; City of Swan [2010] WASC 204 (16 August 2010) [72] (Murphy JA); Owners of Strata Plan No 23007 (2006) 153 FCR 398 at 412 [58] (Edmonds J).

83. In Dalle-Molle v Manos (2004) 88 SASR 193 at [26] the requisite capacity in relation to the conduct of particular legal proceedings was said to involve capacity “to understand the nature of the litigation, its purpose, its possible outcomes and the risks in costs which is… one of its possible outcomes.”

84. That such considerations were intended to apply in the context of the Care Act seems clear from the Second Reading Speech for the Children and Young Persons (Care And Protection) Miscellaneous Amendments Bill 2006 (NSW):

The bill also raises the age at which a child is presumed capable of giving proper legal instructions to his or her legal representative from 10 to 12 years.

It is accepted that children of any age are capable of holding and expressing strong views as to the outcome they desire in care proceedings.

However, there is clear evidence based on child development that most 10 and 11 year olds are incapable of understanding the legal ramifications of their instructions, the intricacies of legal procedure in care matters and the various legal, procedural and jurisdictional issues that may arise.

These children are unable to provide adequate instructions on these issues, placing legal representatives acting on direct instructions from a child in a difficult position.

(my emphasis)

85. None of the medical experts addressed specifically whether AB now has capacity to give proper legal instructions.

86. In his short letter to the Court dated 6 November 2020 Professor Einfeld stated that AB does not have an intellectual disability and (while largely non verbal) he is capable of communicating his thoughts and wishes “in an unconventional manner by writing instead of speaking and his answers are mostly rather black and white”. Professor Einfeld expressed the view that AB made his wishes clear to him (but did not state what they were) and said that if AB “were required to understand other aspects of court process I have no doubt he could do so with proper explanation”.

87. In his report of 9 November 2020, which appears to have been written for the purpose of the appeal proceedings, Professor Einfeld stated that in his view AB has the requisite capacity to consent to medical treatment. However as I have stated that is not the relevant test.

88. He further stated that AB remains steadfast in his wish to go home, which he believes to be the result of an attachment to place and certain people and “perhaps most important … access to privacy and some control over his life.” He also stated that adolescent development typically continues longer in people with autism than the general population and therefore “if [AB] goes home at the age of 18, there are still probably at least 6 or 7 years of adolescent development to continue”. He said that during an interview with AB on 2 November 2020 AB communicated via nods and in writing although his written answers were given in one or two words.

89. In his report Dr Fairley said that during the interview he attended AB did not speak but wrote his answers, used gestures, head movements, facial expressions and some grunts. When speaking about topics that interested him he gave much fuller answers and used a large vocabulary. He speaks to some staff sometimes in Japanese.

90. However Dr Fairley concluded that “[a]utism affects AB’s decision making” in that “[h]is choices are biased towards keeping things exactly the same or returning this to how they were”. He noted that AB’s thinking is slow and concrete and AB is clearer about what he does not want than what he wants. This is also reflected in Mr Hartland’s report.

91. On the basis of the material provided by the experts I am of the opinion that AB is incapable of giving proper instructions, to the standard that is required. While he may have a firm view as to where he would like to live and may on Professor Einfeld’s view be capable of consenting or not to medical procedures, I am of the opinion that he does not have the requisite capacity to understand and give instructions in these legal proceedings; to fully consider the issues, appreciate the consequences of the potential outcomes, and understand the legal ramifications of his instructions. Therefore in my view a guardian ad litem must be appointed.

Ms Wooi’s status

92. As has been noted there are essentially three complaints raised against Ms Wooi. The first is with respect to the validity of her appointment as an ILR. GR and AB’s father contend that having been appointed as a DLR Ms Wooi on her own volition commenced to act as an ILR without being appointed an ILR by the Court. It is also asserted that her statements to the Court that AB was not capable of instructing a lawyer were unsupported by medical evidence.

93. Various transcripts from the s 61 proceedings and the s 90 proceedings in the Children’s Court demonstrate that Ms Wooi was either appointed as a legal representative for AB pursuant to s 99(1) of the Care Act or at least appeared with leave pursuant to s 99(2). For example the transcript of 16 August 2018 for the s 61 proceedings before Magistrate Skinner records her Honour as stating “I am going to appoint Ms Wooi as the ILR”. The transcript of 14 March 2019 for the s 90 proceedings before Magistrate Skinner records her Honour making an “interim decision” to appoint Ms Wooi as an ILR and noting that it might be “appropriate to put on some material about his current capacity and then have a determination made.” On 13 June 2019 her Honour stated “I don’t intend to change the arrangements with respect to [AB]’s legal representation.” On 9 September 2019 during a mention before Judge Johnstone in the s 90 proceedings his Honour “confirm[ed]" Ms Wooi’s “appointment as an ILR”. Although it is not clear whether any orders were entered to this effect.

94. I also note that Children’s Court Practice Note 5 relevantly states:

10. Representation of children and young persons in care proceedings

10.1 The appointment of a legal representative to act for a child or young person under section 99(1) of the Care Act shall be deemed to have been made to a solicitor or barrister employed or engaged by Legal Aid NSW on the filing of a care application.

10.2 When a legal practitioner has appeared on the record as the legal representative of a child or young person in an application for an emergency care and protection order (ECPO) that legal practitioner is taken to be the child’s or young person’s representative for all future proceedings and must be notified by the applicant of any subsequent care applications regarding that child or young person.

10.3 When a legal practitioner has filed a Notice of acting as a child’s or young person’s legal representative in any proceedings concerning or relating to a care application, that legal practitioner is taken to be the child’s or young person’s representative for all future proceedings and must be notified by the applicant of any subsequent care applications regarding the child or young person.

95. Judge Johnstone noted Ms Wooi’s appointment as a legal representative for AB in both his February and April 2020 judgments.

96. Mrs Stolier of counsel, instructed by Ms Wooi, has also appeared in these proceedings in this Court (see, e.g., GR v Secretary, Department of Communities and Justice [2020] NSWSC 645; GR v Secretary, Department of Communities and Justice [2020] NSWSC 645) pursuant to a continuing appointment under s 99(1) or at least, implicitly with leave. She was joined as a party to the proceedings by GR’s summons commencing the appeal.

97. Further having been appointed or given leave to act as a legal representative for AB I am not convinced that a subsequent “appointment” would have been necessary for Ms Wooi to act as an ILR rather than a DLR given the terms of the legislation. As noted above, s 99(1) allows the Children’s Court to appoint “a legal representative to act for a child”. Section 99(2) permits a “legal representative” for the child to appear with leave. Section 99A then directs the legal representative to act as either a DLR or an ILR depending upon whether the child is capable of giving proper instructions and whether a guardian ad litem has been appointed. If in doubt the child’s legal representative may apply to the Children’s Court for a declaration that the child or young person is not capable of giving proper instructions (s 99C(2)).

98. However Ms Wooi stated that her appointment as ILR was approved by the Children’s Court. In addition to the “appointments” recorded in the transcripts (noted above) it seems that this occurred by way of the declaration being made pursuant to s 99C(2). As is already noted above in his Honour’s February 2020 judgment Judge Johnstone, President of the Children’s Court, stated (at [9]) that:

9 The child was represented by Mrs Stolier of Counsel, instructed by Ms Wooi, a solicitor who was appointed by the Court as his Independent Legal Representative (IRL), due to him having been declared to be not capable of giving proper instructions: s 99C(2) of the Care Act.

99. Ms Wooi also provided relevant updates by way of position statements and medical reports regarding AB’s medical condition and her inability to obtain instructions throughout the Children’s Court proceedings. Initially her inability to obtain instructions was due to her not being able to meet with AB. At other times it was due to AB being heavily medicated or sedated or what is described as “rigid and circular thinking” (see e.g. medical report produced by Dr Katherine Thomson-Bowe in March 2019).

100. It is clear from his Honour’s judgments that Judge Johnstone held the view that AB was incapable of “form[ing] a relevant view” in relation to his care right up to the conclusion of the Children’s Court proceedings at the beginning of this year (see his Honour’s 27 February 2020 judgment at [463]).

101. I am satisfied that up to and including the date on which AB was added as a party to the proceedings in this Court and since then Ms Wooi has appeared under a valid appointment.

102. The other complaint raised by GR and AB’s father is that Ms Wooi failed to discharge her duties as an ILR and that she and Mrs Stolier have failed to act independently from the first and second defendants.

103. Both Ms Wooi and Mrs Stolier are practitioners who are officers of and owe paramount duties to the Court. Allegations that they are prejudiced in favour of the Department are serious and would need to be proved on a Briganshaw v Briganshaw standard (see also s 140 of the Evidence Act 1995 (NSW)).

104. I have not been directed to any evidence that would establish that Ms Wooi and/or Mrs Stolier have failed in their duties or acted in a biased manner. The mere fact that they have not sided with GR or AB’s father but rather determined that the submissions made on behalf of the first and second defendants were appropriate and therefore supported them is not a logical basis for finding bias.

105. No complaint appears to have been raised by any judicial officer. Ms Wooi was commended by Judge Johnstone for acting in an “exemplary fashion”. Judge Johnstone also noted that the Court had been made well aware of AB’s fervent desire to go home. There is in my view simply no ground objectively to sustain any allegation that they have brought anything but an independent mind to bear in relation to these proceedings and therefore I would not order their removal.

106. However I have formed the view that a guardian ad litem should be appointed. I should note that the absence of a guardian ad litem up until now does not render void or invalid any orders that were made before AB was joined as a party to these proceedings (see UCPR r 6.23) or since AB was joined and up to this point. GR’s application to remove Ms Wooi clearly provoked consideration of the issue of whether AB is incapable of providing proper instructions. The Court at no time since 22 May explicitly expressed the opinion that AB is incapable of giving proper instructions, which would have required appointment of a guardian ad litem under s 98(2A), although that view was expressed in the proceedings before the Children’s Court, and was at least implicit in Ms Wooi’s participation in the proceedings in this Court.

107. Ms Wooi and Mrs Stolier may continue to act for AB. However once a guardian ad litem is appointed Ms Wooi will be required to take instructions from him or her and it would be open to the guardian ad litem to seek an appointment of alternate legal representatives for AB if he/she thought it necessary or desirable to do so.

108. Finally, on the basis of the comments in Re Jayden [2007] NSWCA 35 at [100]-[103] and SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [52] and [91], as well as News Ltd And Others v Australian Rugby Football League Ltd And Others (1996) 139 ALR 193, I would order the removal of Ms Wooi as a party to these proceedings if such an order was sought.

109. I invite the parties to bring in short minutes reflecting these reasons. However in the light of these reasons the further conduct of the matter requires urgent discussion.

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Decision last updated: 16 November 2020