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

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

Because AB has been joined as a party to the proceedings and is, in the Court's opinion, incapable of giving proper instructions to a legal representative, s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires the appointment of a guardian ad litem for AB. Ms Wooi's appointment as ILR was valid, and there is no basis for her removal as legal representative on the evidence. However, Ms Wooi should be removed as a party to the proceedings if sought, in line with appellate authority.

Jurisdiction
Australia
Judgment Date
16 November 2020
Procedural Posture
Statutory Appeal and Judicial Review (children's Care Proceedings) / Interlocutory/procedural Ruling on Appointment of Guardian Ad Litem and Legal Representative
Outcome
Guardian ad litem ordered; Ms Wooi to remain as legal representative (ILR); Ms Wooi may be removed as party if order sought; no removal of representative ordered.
Legal Topics
['care Proceedings' 'independent Legal Representative' 'guardian Ad Litem' 'capacity to Instruct' 'party to Proceedings']
['child Welfare' 'equity' 'civil Procedure'] ['care Proceedings' 'independent Legal Representative' 'guardian Ad Litem' 'capacity to Instruct' 'party to Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Statutory Appeal and Judicial Review (children's Care Proceedings) / Interlocutory/procedural Ruling on Appointment of Guardian Ad Litem and Legal Representative

Legal Issues

  1. 1 ['Whether a guardian ad litem must be appointed for AB under s 98(2A) Children and Young Persons (Care and Protection) Act 1998 (NSW)' 'Whether the Independent Legal Representative (ILR) Ms Wooi should be removed or replaced as representative for AB' 'Whether Ms Wooi should remain a party to the proceedings']

Ratio Decidendi

Because AB has been joined as a party to the proceedings and is, in the Court's opinion, incapable of giving proper instructions to a legal representative, s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires the appointment of a guardian ad litem for AB. Ms Wooi's appointment as ILR was valid, and there is no basis for her removal as legal representative on the evidence. However, Ms Wooi should be removed as a party to the proceedings if sought, in line with appellate authority.

Court Disposition

Guardian ad litem ordered; Ms Wooi to remain as legal representative (ILR); Ms Wooi may be removed as party if order sought; no removal of representative ordered.

Orders

  • ['Appointment of a guardian ad litem for AB pursuant to s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).' 'Ms Wooi to continue as legal representative for AB, now taking instructions from the guardian ad litem.' 'Ms Wooi may be removed as party to the proceedings if sought.']