HP v The Secretary, Department of Communities & Justice

[2024] NSWDC 474

District Court

New South Wales

Medium Neutral Citation:

HP v The Secretary, Department of Communities & Justice [2024] NSWDC 474

Hearing dates:

12-13 August 2024, 30 September 2024, 10 October 2024

Date of orders:

10 October 2024

Decision date:

10 October 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [88]

Catchwords:

CHILD WELFARE – appeals from decision of Children’s Court – appointment of guardian ad litem for Mother during the hearing – subsequent adjournment of proceeding – Guardian subsequently applies for discontinuance of appeal proceeding – whether proceeding could be discontinued – whether discontinuance requires leave – if discontinuance requires the Court’s leave – whether leave should be granted

Legislation Cited:

Children & Young Persons (Care and Protection) Act 1998 (NSW), ss, 7-9A, 83(7), 90, 94(1),(4), 98(2)-(2A), 100, 101

Civil Procedure Act 2005 (NSW), ss 56-60

Uniform Civil Procedure Rules 2005 (NSW), rr 7.18, 12.1

Cases Cited:

Brown v Weatherhead (1844) 4 Hare [122]

CM v Secretary, Dept of Communities and Justice [2022] NSWCA 120

Jones v Wrotham Park Settled Estates [1980] AC 74

R v Young (1999) 46 NSWLR 681

Taylor v Owners of SP No. 11564 [2013] NSWCA 55

Texts Cited:

Nil

Category:

Principal judgment

Parties:

HP (Plaintiff)
Mr T Tran (Guardian Ad Litem)
Department of Communities and Justice (First Defendant)
NP (Second Defendant)
DP (Third Defendant)
EP (Fourth Defendant)
KP (Fifth Defendant)
LP (Sixth Defendant)

Representation:

Counsel:
HP (Self-represented)
Ms S Popovski (Solicitor Advocate for the Guardian Ad Litem)
Ms H Fordham (Solicitor Advocate for the First Defendant)
Mr S Nasti (Solicitor Advocate, Direct Legal Representative for the Second Defendant)
Mr P Ryan (Solicitor Advocate, Direct Legal Representative for the Third Defendant)
Ms S Harrod (Solicitor Advocate, Independent Legal Representative for the Fourth and Fifth Defendants)
Mr J McCaffrey (Solicitor Advocate, Direct Legal Representative for the Sixth Defendant)

Solicitors:
Western Sydney Solicitors (Guardian Ad Litem)
NSW Crown Solicitor’s Office (First Defendant)
S P Nasti & Co (Second Defendant)
P Ryan Solicitors (Third Defendant)
Harrods & Associates (Fourth and Fifrth Defendant)
James McCaffrey & Associates (Sixth Defendant)

File Number(s):

2023/00063076

Publication restriction:

Non-publication order pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents' and relatives' names are also anonymised.

reasons for JUDGMENT ^[1]

Background

1. As indicated to the parties on 10 October 2024, this is an enlarged version of oral reasons given that day.

1. This proceeding concerns an appeal from a decision of the Children’s Court of New South Wales on 27 October 2022. The plaintiff is the mother of 5 children who are subject of orders from that Court. There is another child (TP), but he is now over 18 years of age and beyond the remit of the Children’s Court. The family are of Maori heritage. The father has not participated in the proceedings.

2. The five children, their respective ages and dates of birth are:

• NP, 15, (9/5/09)

• DP, 14, (22/5/11)

• LP, 13 (5/8/11)

• EP, 9, (1/9/14)

• KP, 8 (23/8/15)

3. On 27 October 2022, the Children’s Court allocated all aspects of ‘Parental Responsibility’ upon to the Minister for Families and Communities (the sixth defendant). The Children’s Court’s orders were made on that day after the Mother, who had been legally represented in the Children’s Court, conceded (after three days of hearing) that there was no realistic possibility of restoration.

4. On 24 February 2023, the Mother filed a Summons seeking leave to appeal the Children’s Court orders. Leave to appeal out of time was subsequently granted (in May 2023).

Developments prior to the hearing in the Children’s Court

5. By way of an initial outline, which is uncontroversial and succinctly summarised in the Secretary’s outline of opening written submissions (MFI 2) and a joint chronology prepared by the respective direct legal representatives for the Children (MFI 6), the Mother was born on 17 December 1987. The Children’s Father was born on 20 March 1990.

6. The Secretary has known the family since 2009. Between 10 July 2010 and 3 January 2017, the Department of Communities & Justice (‘DCJ’) received 16 Risk of Significant Harm (‘ROSH’) reports with respect to the family, with the primary reported concerns pertaining to excessive physical discipline, neglect, exposure to domestic violence and alcohol use by the parents. Owing to the above concerns, the Mother agreed for the children (including, at that stage the son now over 18) to be placed with family members and agreed to work with DCJ to address identified concerns.

7. On 24 January 2017, the children were assumed into care. This was because of concerns relating to the Mother’s abuse of alcohol, the Father’s violence towards her and concerns relating to both parents’ mental health and extensive use of physical discipline and homelessness. The children were initially placed in a single placement with carers before NP and LP were placed with their maternal aunt. The child TP, who is now over 18, had been placed with his grandparents.

8. On 4 December 2017, final orders were made for the children; allocating ‘Parental Responsibility’ for the Minister until they attained 18 years of age. Lifestyle Solutions had case management responsibility.

9. In 2019, the Mother filed an application (under s 90 of the Children & Young Persons (Care and Protection) Act 1998 (NSW) (‘the Care Act’) seeking restoration of the children to her.

10. She was supported in that endeavour by the opinion of Ms Crawford, who in February 2020, performed a Children’s Court Clinic assessment. The gist of this was a recommendation of a staged but conditional restoration to the mother. Following that assessment, the Secretary proposed a transition plan. The Secretary’s Care plans included certain minimum outcomes to be achieved before full restoration, including:

1. The Mother’s drug and alcohol abstinence and testing over the course of the transition period and thereafter to ensure her ongoing sobriety;

2. The Mother to engage consistently with her mental health clinician and utilise stress management strategies delivered to her on an ‘as needed’ basis.

11. In December 2000, upon undertakings given by the Mother, orders were made restoring the children to her care. Lifestyles Solutions proposed a family action plan, but this was halted on Christmas Day 2020, after the Mother expressed (to Lifestyle Solutions) that she felt ‘overwhelmed’ by the children and their behaviours.

12. After that, Lifestyle Solutions devised a family action plan, featuring referrals to a parenting support program for the Mother to assist with her transition; but the Mother did not accept it. Multiple ‘helpline’ reports were received and the transition plan did not proceed.

13. On 28 June 2021, the initiating application was filed in the Children’s Court, in which final orders were sought allocating parental responsibility to the Minister for 12 months; with it being shared thereafter between the Minister and the Mother (to the Father’s exclusion) for a period and then for the Mother to be allocated parental responsibility until the children reached 18.

14. On 6 July 2021, the Children’s Court made an interim order allocating parental responsibility of the children to the Minister until further order.

15. On 11 July 2021, a report was received that the Mother had physically assaulted DP during a contact visit.

16. On 23 August 2021, the Mother filed an affidavit in response to the s 90 application.

17. In a second clinician assessment report of Ms Audsley on 1 September 2022, the clinician recommended the restoration of the children to the Mother. Ms Audsley did not adhere to that recommendation once apprised of the information that the service she had recommended was not available to the Mother until January 2023. (With the Carers’ relocation to Queensland, to be referred to below, the recommended restoration could not occur in any event).

18. On 11 February 2022, Amended Care Plans for NP, DP, LP and EP were filed. The details of these plans was referred to below.

19. On 1 September 2022, a clinical assessment of the Mother was performed by Ms Danielle Audsley. Materially, the authorised clinician recommended that the children be restored to the Mother, subject to a one-year order with a further supervision order for another year. Other recommendations were made about the order for restoration of the children; the nature of contact, that functional family therapy be engaged in and the children receiving therapeutic intervention. (The children’s Direct Legal Representatives noted that the clinician’s opinion altered through the hearing).

20. Statements and Wishes of NP, LP, KP, DP as expressed in May 2022 and October 2022 were also before the Children’s Court.

The hearing in the Children’s Court

21. The hearing in the Children’s Court commenced on 25 October 2022 before Viney LCM. As indicated, the Mother was represented by Counsel, and after three days of hearing and after an opportunity for her to confer with her Counsel on the matter, she made concession adverted to; following which the final orders allocating Parental Responsibility of the children to the Minister (until each child reached the age of 18) which are now the subject of appeal were made on 27 October 2022.

Subsequent developments to the hearing in the Children’s Court

22. In December 2022, the children located to Gladstone with their kinship carers, Ms Janei Leota and Ms Chauntae Rio.

23. In February 2023, the carers’ relationship broke down, albeit amicably, with Ms Rio relocating to Western Australia. Ms Rio has her own daughter. For a period of time, the children relocated to Perth to live with Ms Rio.

The commencement of this proceeding

24. By summons filed on 24 February 2023, the Mother challenged CM Viney’s finding that there was no realistic possibility of restoration of the Child to the Mother’s care. She sought an order, pursuant to s 83(7) of the Care Act that there was a realistic possibility of restoration to her.

25. On 27 July 2023, Ms Dominque Weynen, a DCJ casework manager, completed a Restoration Assessment and did not recommend restoration of the children to the Mother’s care.

26. The Children lived with Ms Rio in Perth until December 2023, when Ms Rio returned to Sydney. Upon their return to Sydney, the children lived with their maternal aunt; although (subject to a qualification) they remained in Ms Rio’s care. The qualification was the youngest two children; who were placed with foster carers owing to the aunt’s space constraints.

27. In late January 2024, Ms Rio returned to Perth to live and in March, she secured a four-year rental for a 4 bedroom house. The decision was taken that the children would all return to her care in Perth.

28. On 12 April 2024, Ms Briget Gurton, a forensic psychologist with 25 years’ experience, produced a report in respect to her cognitive functioning and adaptive skills. The report was based, amongst other things, on an interview with the Mother on 22 March 2024. Ms Gurton pointed out a limitation in her report (which assumed particular significance upon the Mother’s application to have a guardian appointed for her). This was that the Mother had not had a comprehensive Mental Health Assessment. After specifying the results of testing, Ms Gurton concluded that the Mother did not experience significant difficulties in her cognitive or adaptive functioning. Taken in isolation, Ms Gurton recorded, the Mother was able to learn and retain new information; especially if provided with visual information which she could later review. But, Ms Gurton noted the possibility that the Mother’s history of trauma might impact her capacity to work with services to support her care of the children, rather than any cognitive issues.

29. The children moved to Perth in early June 2024, placed with Ms Rio, and they have been there ever since.

The hearing on 12-13 August 2024

30. In her former Counsel’s outline of opening submissions, he indicated that the Mother seeks a variation of the orders so that parental responsibility should be shared by her and the Minister and that the children are returned to reside with her.

31. In August 2024, shortly before the commencement of the hearing, the Court received statements of the views and wishes of some of the children. The reasoning to the respective statements will be adverted to later in these remarks, but the positions of the children as indicated by these documents, are that:

• LP wishes to stay where she is with her sisters and brothers (Exhibit 1);

• Although he wants to maintain regular contact with the Mother, DP does not wish to return to the Mother’s care (Exhibit 3)

• KP wants to remain living with his sibling and ‘Aunty’ (Exhibit 2);

• EP indicated that although he wants to have a visit with his Mother, he wanted to remain living where he was and did not want to move (Exhibit 2)

• In response to the specific question (from her Direct Legal Representative) whether she wishes to be restored to her mother’s care, NP said that she preferred remaining in her current care with Ms Rio and her siblings. She did, however, indicate she had no objection to seeing her mother or having frequent phone calls or Facetime contact with her mother (such forms of contact being unsupervised) (Exhibit 4).

32. After the conclusion of the second day of the hearing on 13 August 2024, the hearing was adjourned. The adjournment was caused by the Court directing that a person be appointed as the Mother’s Guardian.

The application to discontinue the appeal by the Guardian ad Litem

33. On 16 August 2024, Tri Tran (Gee) was appointed as Guardian ad Litem (‘GAL’) for the Mother.

34. On 23 September 2024, the GAL affirmed an affidavit (Exhibit 6) explaining his request to withdraw the matter, in light of the circumstance that the Mother did not accept the GAL’s withdrawal. The GAL essentially explained that in his view there was no realistic possibility of restoration of the children to the Mother. Particular reasons for that opinion included the GAL’s concern about the Mother’s background and personal circumstances and ability to accommodate the children. In terms of personal circumstances, they included the Mother’s current unemployment, her desire to return to New Zealand to care for her father and the Mother’s failure to complete a mental health assessment.

35. In the face of that affidavit, the Mother affirmed her own affidavit on 24 September 2024. By that affidavit, the Mother relevantly indicated her wish to amend the bases for appeal, her desire to receive more legal advice and further opportunity to serve evidence.

36. After this evidence from the GAL and Mother were served, there was a mention of the proceeding on 30 September 2024. The legal representatives for all of the defendants universally submitted that in light of the position expressed by the GAL, this proceeding could no longer proceed. The Mother indicated that she was entitled to continue the proceeding.

37. In light of the indication of the parties, I directed that there be an exchange of evidence and submissions on the limited question of the status of the proceeding in view of the GAL’s position.

38. On 3 October 2024, the solicitor for the GAL attempted to file a Notice of Discontinuance. It was however rejected by the Registry since it had not been signed by all active parties.

39. The solicitor for the Secretary indicated that the Secretary had informally consented to the filing of the notice, but had not had the opportunity to sign it before it had been filed.

Submissions for the defendants

The Secretary’s submissions

40. The Secretary noted the principles and objects of the Care Act.

41. The Secretary then referred the Court to the decision of CM v Secretary, Dept of Communities and Justice [2022] NSWCA 120 (‘CM’) and particularly the observations of Leeming JA at [8]-[14].

42. The Secretary referred to the terms of s 101 of the Care Act and emphasised a further passage from Leeming JA in CM, relevantly:

“… an act of a guardian is taken to be the act of the person for whom the guardian has been appointed, as if that person had capacity to perform that act..”

43. The Secretary submitted that the GAL stands in the shoes of the person for whom they have been appointed. That particular submission was not based on statutory provision or judicial authority; but rather a handbook of the Department. The Secretary submitted that the Department considers that GALs have obligations ‘to act honesty and fairly and, specifically, not to undertake and pursue appeals unless there is a reasonable prospect of success of the appeal or is otherwise justified in the public interest’.

44. After referring to provisions in the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), the Secretary addressed the significance of the GAL’s indication of its wish to withdraw.

45. The Secretary alluded to the stated reasons of the GAL for wishing to withdraw. The Secretary further submitted that it is in the best interests of the children for the proceeding to be finalised as soon as possible so as to minimise the effect of the proceedings and to avoid unnecessarily disrupting their current placement.

46. The Secretary then submitted that, in substance, an application had been brought on the plaintiff’s behalf and, consistent with:

1. the objects and principles of the Care Act;

2. s 94 of the Care Act;

3. ss 100 and 101(3) of the Care Act; and

4. the case management objectives in ss 56-60 of the Civil Procedure Act

the application for discontinuance should be acceded to.

47. If necessary, the Secretary consented to the discontinuance as an active party.

The Third Defendant’s submissions

48. The Third Defendant agreed with the Secretary that once appointed, the GAL steps into the shows of the party on whose behalf they are appointed. The GAL is not bound by the party’s wishes.

49. In this case, former Counsel for the Mother had opined that she was unable to understand the relevant issues and was incapable of giving Counsel instructions. The appointment of the GAL was justified at the time and remains justified. The GAL’s application to discontinue the appeal should be granted.

The Sixth Defendant’s submissions

50. The Direct Legal Representative, Sixth Defendant, pointed out that when the matter was before the Court on 13 August 2024, the mother was represented by her solicitor, Ms Susane Popovski and Mr Deone Provera of Counsel.

51. The Direct Legal Representative reminded me that the mother was in the course of giving evidence and, in response to a question I raised of her, she said she did not understand the legal advice that she had received. In response to a question from the Direct Legal Representative for another child, Mr Nasti, the Mother said she would need a month to read all the material that had been filed and further, that she wanted the opportunity to put on more evidence.

52. After a break in proceeding, Mr Provera indicated that he had difficulties in the sense that he could not receive proper instructions.

53. After receiving some evidence from Ms Gurton, the forensic psychologist, it was suggested that there should be an adjournment. This was the context of my appointment of the GAL.

54. The Direct legal representative for the Sixth Defendant submitted that the appointment of the GAL was appropriate at the time.

55. The Sixth Defendant noted the problem that the mother sought to continue the appeal as a plaintiff whilst, at the same time, being represented by a GAL whose position was ‘diametrically’ opposed to the mother’s wish.

56. The Sixth Defendant submitted that the mother had not applied for, let alone produced any evidence supporting, the revocation of the GAL’s appointment. Nor did she serve evidence which would support any proposition that she was now capable of giving proper instructions and being able to proceed with her appeal by herself or with alternative representation.

50. Accordingly, the Court should grant the GAL’s application to withdraw the appeal.

The Second Defendant’s submissions

58. The Second Defendant agreed with the other defendants’ submissions.

59. In addition, the Second Defendant submitted that the solicitor for a parent for whom a GAL has been appointed must act on the instructions of the GAL (Care Act, s 101(iv)).

60. Given that the GAL was properly appointed and has not been discharged (nor sought to be discharged), the Mother has no standing to oppose the application.

The Fourth and Fifth Defendants’ submissions

61. No submissions were received from these parties nor were they represented at the hearing on 10 October 2024.

The Mother’s submissions

62. The Mother affirmed an affidavit on 8 October 2024 (Exhibit 5).

63. This affidavit did not address the status of the proceeding in light of the GAL’s application to discontinue the proceeding. The affidavit did not refer to the GAL at all.

64. Instead, the Mother gave evidence about a visit to ‘other children’ recently between 25 and 28 September 2024. This was, the Mother indicated, the first time she had seen those children since June 2024. She was disturbed at what she saw. Amongst other things, she criticised one of the carers, indicated that she has lost faith in the Department and is concerned about the welfare of the children.

65. At the hearing, the Mother sought to rely upon further documents. She had not shown them to the GAL, or the parties in advance. I briefly adjourned the hearing to enable the GAL a very brief opportunity to look at them. Upon resumption, he indicated that there was nothing in them which altered the conclusions he expressed in his affidavit of 23 September 2024. However, given the earlier direction that, by 8 October 2024, she serve all evidence she relied upon for the discontinuance application to be considered on 10 October 2024 (which she availed herself of to serve one affidavit of 8 October 2024), I refused her application to tender the additional documents she sought to rely upon.

Consideration

66. In substance, what is now before the Court is a contested application by the GAL to discontinue the Mother’s appeal. That application is singularly contested by the Mother, who not only seeks to continue the appeal, but also the opportunity to furnish further evidence.

67. Procedure in the Children’s Court, and therefore procedures on appeal to the District Court, is governed by Chapter 6 of the Care Act.

68. Pertinent provisions are as follows.

69. In any application which this Court considers, it must be mindful of the provisions in ss 7 – 9A of Act which, in paraphrase, deal with the objects and principles of the Act, the ‘paramountcy’ principle and ‘active efforts’ principle (noting that there may be some tension or pulling of considerations in different directions).

70. Section 94(1) signifies the importance of expedition of proceedings in the Children’s Court and, by extension, on appeal from that Court’s decisions. That is explained on two bases: to minimise the effect of proceedings on the affected child or children and the child’s or children’s family; and secondly to finalise decisions concerning the final placement of the child (or children). Section 94(4) expressly commands the Children’s Court (and this Court on appeal) to ‘avoid’ the grant of adjournments to the maximum extent possible and conditions the grant of adjournments on satisfaction by the Court of the opinion that the adjournment will be in the best interests of the child or children or ‘some other cogent or substantial reason for doing so’.

71. Section 98 concerns appearances. As I understand the case, many of the adjournments in this proceeding that have occurred to date concern the Mother’s change of legal representation. Section 98(2) is a relatively unique provision to other forms of civil proceeding. It is, in effect, very protective of the interests of a parent. The statutory purpose is to curtail the right of a party (including a parent) to represent themselves, albeit only on the basis of subjective satisfaction that the person is “not capable of adequately representing himself or herself”. Implicitly, arguably, it casts a deal of scepticism on a party adequately representing himself or herself.

72. However, s 98(2A) indicates a limit: if the Children’s Court opines that a party is “incapable of giving proper instructions” to the legal representative, the Court may appoint a guardian ad litem.

73. Section 98(2A) is replicated in s 101(1)(a).

74. It was the power in s 101(1)(a) that the Court exercised on 13 August 2024.

75. Two further provisions relating to guardians are in point. The first is the description of the functions of a GAL of a parent, being “to safeguard and represent the interests of the parent” and “to instruct the legal representative of the parent” (s 101(3)).

76. The other is the obligation of the legal representative for the parent, for whom the GAL had been appointed, to “act on the instructions of the guardian ad litem”.

77. I accept the submission of the defendants, supported by the authority of CM, that when a GAL has been appointed, an act of a guardian is taken to be the act of the person for whom the guardian has been appointed, as if that person had capacity to perform that act. This, in substance, is another way of saying that the GAL stands in the shoes of the person (in this case the Mother).

78. There is no express provision for the removal of a GAL in Chapter 6, but, uninstructed by authority, it strikes me that the position is that the Children’s Court (and by extension this Court on appeal) has an implied power^[2] to revoke the appointment, and further, that it may do so upon prove that the parent was no longer “incapable of giving proper instructions”; being the basis upon which the appointment was originally made. I consider some analogy could be drawn from the circumstance when a tutor could be removed under r 7.18(1)(b) of the UCPR, for example, when the plaintiff turns 18 years of age. In that circumstance, the very condition giving rise to the requirement for a tutor has been spent: Brown v Weatherhead (1844) 4 Hare [122]. I am satisfied that the ‘conditions’ for the implication of those words are satisfied. In particular, I find that the draftsperson overlooked and hence omitted to deal with the scenario when the need for a GAL has gone away.

    2. Jones v Wrotham Park Settled Estates [1980] AC 74 per Lord Diplock at 105-106; R v Young (1999) 46 NSWLR 681 at [8]-[9]; Taylor v Owners of SP No. 11564 [2013] NSWCA 55 at [38]-[40]

79. Not unexpectedly, given that it was only about 2 months ago that the appointment of the GAL was made based upon the view of her then Counsel that she was incapable of providing instructions to him, the Mother made no attempt to try to persuade the Court that since 13 August 2024, she was no longer incapable of giving instructions to Ms Popovski.

80. There is no basis therefore for the Court to exercise what I regard as its implied power to revoke the GAL’s appointment.

81. That being so, the act of the GAL, effectively standing in the Mother’s shoes, in seeking to discontinue this proceeding which is treated as the act of the Mother. I accept the defendants’ common submissions that the Mother is not an “active party” for the purpose of r 12.1(1)(a) of the UCPR, and that she therefore has no standing to oppose the discontinuance; and further that given all the active parties consent, the GAL may discontinue this appeal as of right. However, for the purpose of r 12.1(1)(a), technically, the Court has not received the consent of the fourth and fifth defendants. Technically, the GAL requires leave.

82. It would be remarkable if the position was otherwise. The Court would be left with a conflict between the positions of the GAL and the Mother. If the GAL appointment ceased, then the legal representative, hitherto obliged to act on the instructions of the GAL, would also be required to cease representation. But then that consequence would likely bring about the position that s 98(2) was designed to prevent: the Mother representing herself. As indicated, nothing has been shown to have changed since the position as it pertained on 13 August 2024, when it was determined that the Mother was incapable of adequately representing herself. With no disrespect but with sympathy for her, it would be intolerable for the litigants in the proceeding, as well as inimical to ordinary civil case management principles, if the Mother was permitted to represent herself given the difficulties in processing information that were exposed on 13 August 2024. The flow on consequence that a court would likely require the Mother to be again legally represented. But then, by s 98(2A), she would need another appointment of a GAL.

83. To embark upon this course, even if it was permissible, would further disrupt the proceeding. More ominously, the Mother also seeks opportunity to put on further evidence. This, to recall, this is an appeal from a decision of the Children’s Court made just short of 2 years ago (27 October 2022). That so much time has passed is already a matter for some regret; whatever be the causes.

84. The Mother’s affidavit (of 8 October 2024), although it provides a hint of further evidence she would like to put on, was not responsive to the GAL’s affidavit of 23 September 2024. Nor did she verbally articulate reasonable opposition to what the GAL deposed in his affidavit. Further, when I asked her why the proceeding should not be discontinued because of the GAL’s discontinuance, her response (consistent with her approach) was to urge adjournment to enable her to put on further fresh evidence to deal with the merits of the case.

85. Procedural steps taken now to provide yet further opportunity for further evidence would be antithetical to s 94 of the Care Act and, incidentally, also the case management objectives in ss 56-60 of the Civil Procedure Act.

86. I accept the Secretary’s submission that it is in the best interests of the children for the proceeding to be finalised as soon as possible so as to minimise the effect of the proceedings and to avoid unnecessarily disrupting their current placement.

87. Acting on the basis that the GAL must obtain the Court’s leave to discontinue, for the above reasons leave should be granted under r 12.1(1)(b) of the UCPR. Since there may be some doubt about the GAL’s right to discontinue, out of abundant caution, I will make that order.

Summary & Orders

88. The Court orders that:

1. Pursuant to r 12.1(b) of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the Guardian Ad Litem to discontinue the plaintiff’s appeal to this Court, commenced by Summons dated 24 February 2023.

2. There is no order as to costs.

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Endnotes

Decision last updated: 11 October 2024