GR v Secretary, Department of Communities and Justice

[2021] NSWCA 99

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GR v Secretary, Department of Communities and Justice [2021] NSWCA 99

Hearing dates:

17 May 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Before:

Macfarlan JA;
Gleeson JA

Decision:

Subject to the grant of leave made on 17 May 2021 in respect of Sackar J’s order of 17 November 2020 appointing a guardian ad litem for AB, the summons seeking leave to appeal is dismissed.

Catchwords:

CHILD WELFARE – care proceedings – applicant alleged Children’s Court acted without jurisdiction and Supreme Court consequently erred in dismissing judicial review application – leave to appeal refused

CHILD WELFARE – care proceedings – guardian ad litem appointed by Supreme Court – whether court required to appoint guardian ad litem if child or young person who is a party is incapable of giving proper instructions or whether court has discretion to do so – interaction between ss 98(2A) and 100 Care Act – reasonable argument and of some general importance – leave to appeal granted on limited basis

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children’s Court Act 1987 (NSW)

Children’s Court Regulation 2019 (NSW)

Supreme Court Act 1970 (NSW)

Category:

Principal judgment

Parties:

GR (a pseudonym) (Applicant)
Secretary, Department of Communities and Justice (First Respondent)
The Minister, Families, Disabilities and Community Services (Second Respondent)
BB (a pseudonym) (Third Respondent)
AB (a pseudonym) (Fourth Respondent)
William Hoyles (Fifth Respondent)

Representation:

Counsel:
M Robinson SC (Applicant)
D Kell SC / M Anderson (First and Second Respondents)
Self-represented Third Respondent
K Wooi (sol) (Fourth Respondent)

Solicitors:
Crown Solicitor’s Office (First and Second Respondents)

File Number(s):

2020/359409

Publication restriction:

Non-publication order of the names of the Applicant, Third Respondent and Fourth Respondent, with them to be referred to by their pseudonyms GR, BB and AB respectively, until the application for leave to appeal is determined, and if leave is granted, until the disposition of the appeal.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 1622; [2020] NSWSC 1901

Date of Decision:

16 November 2020

Before:

Sackar J

File Number(s):

2020/123080

Judgment

1. THE COURT:  This is an application by GR (a pseudonym) for leave to appeal against orders made by Sackar J in the Equity Division pursuant to his Honour’s judgments of 16 November and 23 December 2020 ([2020] NSWSC 1622 and [2020] NSWSC 1901). The proceedings below concern the care and protection of a young person (“AB”) whose mother is GR and whose father (“BB”) is the third respondent to the present application. The first respondent (“the Secretary”) first assumed care responsibility for AB pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) on 29 June 2018 when AB was a “child” as that word is defined in s 3 of that Act. He became a “young person” as defined in the Act when he turned 16 in October 2020.

2. After making interim care orders on 5 July 2018, Magistrate Skinner of the Children’s Court at Broadmeadow made final care orders on 28 August 2018, including that AB be placed under the supervision of the Secretary for a period of 12 months (under s 76 of the Care Act). Thereafter AB resided in the full-time care of his parents, with the first respondent again assuming care responsibility on 21 February 2019, again pursuant to s 44 of the Act. The first respondent then filed an application under s 90 of the Care Act for rescission and variation of the existing care orders.

3. After hearings in the Children’s Court occupying some 12 days, the President of that Court, Johnstone DCJ, on 27 February 2020 delivered a judgment in which he found that there was no realistic possibility of restoration of AB to his parents and that the Secretary should be directed to file an Amended Care Plan addressing the question of permanency planning. His Honour made orders accordingly on 3 April 2020.

4. GR then appealed against those orders pursuant to s 91 of the Care Act. The appeal was properly brought in the Supreme Court by reason of s 22A of the Children’s Court Act 1987 (NSW) and cl 5(1) of the Children’s Court Regulation 2019 (NSW).

5. Thereafter GR sought, by notice of motion filed in the appeal proceedings, interlocutory orders including that Ms K Wooi (AB’s “independent legal representative”) be replaced with a different “direct legal representative” (see s 99A of the Care Act). In Sackar J’s judgment of 16 November 2020, his Honour made orders in respect of the motion including dismissal of the application for Ms Wooi’s removal. His Honour also ordered the appointment of a guardian ad litem for AB, stated to be made pursuant to s 98(2A) and s 100 of the Care Act. In his judgment Sackar J concluded that s 98(2A) required the Children’s Court to appoint a guardian ad litem under s 100 if the Court was, in the words of the section, “of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative”. His Honour thus concluded that in that circumstance, which he found was applicable in respect of AB, the Court did not have any discretion as to whether it should make the appointment.

6. In this Court, the first and second respondents filed detailed submissions contesting this construction of s 98(2A) and in our view established that they have a reasonable argument as to its correctness. As the point appears to be of some general importance, we granted leave to appeal limited to the challenge to the order appointing a guardian and fixed 8 June 2021 for the hearing of that appeal. GR’s written and oral argument before this Court did not establish any basis for any broader grant of leave to appeal in respect of Sackar J’s decision and orders of 16 and 17 November 2020.

7. Separately from her statutory appeal against Johnstone DCJ’s orders of 3 April 2020, GR sought in the Equity Division orders by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) setting aside those orders. Sackar J dismissed those review proceedings by his judgment of 23 December 2020.

8. GR seeks leave to appeal from Sackar J’s 16 November and 23 December 2020 judgments on four grounds identified in GR’s draft Notice of Appeal by their headings as follows:

Ground 1: jurisdictional error
Ground 2: error of law on the face of the record
Ground 3: equitable fraud
Ground 4: no other curial process for instant relief.

Ground 1: jurisdictional error

9. GR’s first argument in this Court in relation to this proposed ground of appeal was that when final care orders were made by Magistrate Skinner of the Children’s Court on 28 August 2018, her Honour did not “establish a jurisdiction” to make them.

10. As the transcript records, her Honour however indicated that she made the orders pursuant to s 71(1)(b) (erroneously referred to in the transcript as “s 71B”) of the Care Act. This permits the Children’s Court to make a care order “if it is satisfied that the child or young person is in need of care and protection” for the reason that “the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection”.

11. By stating expressly that she found that AB was in need of care and protection and that she acted under s 71(1)(b), her Honour properly disclosed and established the basis on which she exercised jurisdiction. That her Honour stated that those interested in the proceedings were consenting to the final orders did not detract from her finding of a need for care and protection. Her Honour was entitled to take that consent into account, especially as the particular ground on which she acted involved an acknowledgment by the parents of a relevant matter. Nor did the description of the consent as being “without admission” detract from its relevance. In its context that simply indicated that the consent was not one that the parties would be held to in other contexts.

12. AB’s mother was represented at the hearing by a solicitor, Mr Mackie, who also acted as amicus for the father. Both Mr Mackie and AB’s independent legal representative, Ms K Wooi, expressed support for the orders that were made. BB, the father, was not present at court but indicated by email that he would sign undertakings that were an integral part of the orders made that day. As well, her Honour had some familiarity with the matter, having made interim orders on 5 July 2018.

13. In these circumstances GR does not in our view have any reasonable argument available to her that Magistrate Skinner acted without jurisdiction. There is no reason to doubt that her Honour was satisfied in the manner that she identified. In the circumstances described above it was certainly open to her Honour to be so satisfied.

14. Likewise, GR’s second point should be rejected. That was to the effect that subsequent orders made by Johnstone DCJ pursuant to s 90 of the Care Act for the rescission or variation of the earlier care orders of 28 August 2018 were made without jurisdiction because the earlier orders were made without jurisdiction. As we have said, the earlier orders were however not shown to have been made without jurisdiction. Nor was it necessary for Johnstone DCJ when considering rescission and variation of those orders to do more than satisfy himself, as he did, that the earlier orders were within jurisdiction and that the matters that s 90 required were established for it to be enlivened.

15. GR’s third point was that any allegations of breaches of the supervision order made by the Children’s Court and of the undertakings taken by it should have been addressed by reference to s 77 of the Care Act, rather than s 90 which was the section under which the application dealt with by Johnstone DCJ was brought. There is however no substance in this argument as the two provisions are independent. Section 77 permits the Secretary to notify the Children’s Court of an alleged breach of a supervision order but does not require the Secretary to do so. Whether or not the Secretary gives such notification, any such breach may be used as a basis for applying for leave to make an application for a rescission or variation of care order under s 90.

16. GR’s exposition in her draft Notice of Appeal of Ground 1 then proceeds to allege that Sackar J erred in determining to proceed in the statutory appeal to “the new hearing … of the first respondent’s s 90 application for rescission or variation of the care orders”, when the Children’s Court had had no jurisdiction to make the original orders. For the reasons indicated above, the premise for this argument (of absence of jurisdiction) is incorrect.

17. Finally, GR alleges that the Children’s Court had no jurisdiction because wrongful treatment of AB enlivened the Supreme Court’s parens patriae jurisdiction. Any such enlivening, if it occurred, did not however exclude the jurisdiction of the Children’s Court.

Ground 2: error of law on the face of the record

18. The exposition of this ground in the draft Notice of Appeal is again dependent upon GR establishing that the Children’s Court acted without jurisdiction on 28 August 2018, which she has not done.

Ground 3: equitable fraud

19. In relation to this ground, GR first contended in her draft Notice of Appeal that the factual position concerning AB’s condition and wishes was misrepresented to the Children’s Court, with the result that the orders of Magistrate Skinner and, subsequently, those of Johnstone DCJ were obtained by fraud. These contentions are dependent upon the correctness of disputed assertions of fact, which was not established, and which at least arguably would not in any event have established a jurisdictional error or other basis for the grant of relief by way of judicial review.

20. In the same category are allegations concerning Ms Wooi’s conduct. Sackar J rejected the allegations made before him that Ms Wooi had acted inappropriately and GR did not propound any arguable basis for a different view being taken on appeal.

21. Finally in relation to this ground of appeal, GR’s draft Notice of Appeal asserted that Sackar J’s judgments of 16 November and 23 December 2020 were “not supported by the evidence”. GR did not advance to this Court any arguable basis for concluding this to be the case.

Ground 4: “no other curial process for instant relief”

22. In exposition of this ground GR stated in her draft Notice of Appeal that she is entitled to judicial review because there is no other means for her to obtain a remedy for what she sees as an unacceptable situation. This is not however a ground upon which judicial review relief can properly be given. GR’s arguments were dealt with at length by Johnstone DCJ in his thorough judgment of 27 February 2020. To the extent that GR may have any justifiable complaints concerning that judgment, she is able to advance them in her exercise of her statutory right of appeal which is to be heard by Sackar J in July.

Conclusion

23. Apart from her challenge to the order appointing a guardian, in relation to which the Court granted leave to appeal, GR did not advance any arguable basis for the grant to her of leave to appeal in respect of either of Sackar J’s judgments of 16 November and 23 December 2020. The same is true of the submissions of the third respondent, AB’s father, who supported GR’s application.

24. As GR was partly successful on her application for leave to appeal, but only to a limited extent, it is appropriate that there be no order as to the costs of the leave application. The following order is therefore made:

Subject to the grant of leave made on 17 May 2021 in respect of Sackar J’s order of 17 November 2020 appointing a guardian ad litem for AB, the summons seeking leave to appeal is dismissed.

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Amendments

21 May 2021 - Correction of typographical error in order.

Decision last updated: 21 May 2021