CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442

Supreme Court New South Wales

Medium Neutral Citation: CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 Hearing dates: 3 & 5 November 2021 Date of orders: 9 November 2021 Decision date: 09 November 2021 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Application dismissed. Catchwords: CHILD WELFARE – Parental responsibility – Order allocating parental responsibility – where the Children's Court made orders in June 2021 allocating parental responsibility for the child to the Minister until the child turns 18 – where the applicant mother has appealed that decision in the District Court of New South Wales pursuant to Children and Young Persons (Care and Protection) Act 1998 ("Care Act"), s 91 – where a final hearing was set for November 2021 before the District Court, and Olsson SC DCJ appointed a Guardian ad litem for the applicant mother pursuant to Care Act, ss 98(2A) and 101 – where the applicant mother has sought to challenge that decision in the Supreme Court's parens patriae jurisdiction. CHILD WELFARE – Jurisdiction – Supreme Court of New South Wales – Parens patriae – where the Court has informed the applicant mother the appropriate forum to challenge Olsson SC DCJ's appointment of a Guardian ad litem would be the Court of Appeal – where the applicant mother expressed she did not want the case referred to the Court of Appeal – whether there are exceptional circumstances warranting the Court's exercise of its parens patriae jurisdiction. CHILD WELFARE – Care proceedings – Guardian ad litem – whether the Children's Court may appoint a Guardian ad litem for an applicant parent pursuant to Care Act, ss 98(2A) and 101 where that parent is self-represented and does not wish to be legally represented – observations on the construction of Care Act, ss 98(2A) and 101. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, ss 83(7), 90, 91, 98(2A), 101 Supreme Court Act 1970, ss 48, 66, 69 Uniform Civil Procedure Rules 2005, r 59.3(2) Cases Cited: Chester v Bateson [1920] KB 829 CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347 CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740 GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 Re Anna [2001] NSWSC 79 Re Frances and Benny [2005] NSWSC 1207 Re Frieda and Geoffrey (2009) 40 Fam LR 608 Re June (No. 2) [2013] NSWSC 1111 Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 Re Victoria (2002) 29 Fam LR 157 R&W Paul Ltd v Wheat Commission (1936) 55 LIL Rep 343 Category: Procedural rulings Parties: Plaintiff: CM (pseudonym) Defendant: Secretary, Department of Communities and Justice Representation: Counsel: Defendant: M. Anderson