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

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

There is no requirement under the relevant statutory provisions that an order for legal representation must be made before a guardian ad litem may be appointed for a parent in care proceedings; the power to appoint a guardian ad litem may be exercised if the court is satisfied of incapacity to instruct, even without a prior order for legal representation. Therefore, the District Court did not err in law, nor was there jurisdictional error, in appointing a guardian ad litem for the applicant.

Jurisdiction
Australia
Judgment Date
07 July 2022
Procedural Posture
Appeal—judicial Review (application for Review of District Court Order) / Determination of Amended Summons in Court of Appeal
Outcome
Amended summons dismissed.
Legal Topics
['care and Protection of Children' 'judicial Review' 'guardians Ad Litem' 'legal Representation in Proceedings']
['child Welfare' 'administrative Law'] ['care and Protection of Children' 'judicial Review' 'guardians Ad Litem' 'legal Representation in Proceedings']

Case Brief

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Procedural Posture

Appeal—judicial Review (application for Review of District Court Order) / Determination of Amended Summons in Court of Appeal

Legal Issues

  1. 1 ['Whether error of law on the face of the record occurred in the appointment of a guardian ad litem for the applicant mother' 'Whether it was necessary to make an order that the mother be legally represented before appointing a guardian ad litem' 'Whether there was jurisdictional error in the decision of the District Court']

Ratio Decidendi

There is no requirement under the relevant statutory provisions that an order for legal representation must be made before a guardian ad litem may be appointed for a parent in care proceedings; the power to appoint a guardian ad litem may be exercised if the court is satisfied of incapacity to instruct, even without a prior order for legal representation. Therefore, the District Court did not err in law, nor was there jurisdictional error, in appointing a guardian ad litem for the applicant.

Court Disposition

Amended summons dismissed.

Orders

  • ['Amended summons dismissed.' 'No order as to costs, subject to application within time specified by UCPR r 36.16.']