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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 Hearing dates: 30 June 2022 Decision date: 07 July 2022 Before: Leeming JA at [1]; Kirk JA at [35]; Simpson AJA at [36]. Decision: Amended summons dismissed. Catchwords: CHILD WELFARE – care and protection of children – appeal from Children's Court – mother seeks judicial review of appointment of guardian ad litem for mother – whether error of law on face of record – whether record included reasons for appointing previous guardian ad litem – whether necessary to make order that mother be legally represented before appointing guardian ad litem – whether jurisdictional error – ss 98 and 101 of Children and Young Persons (Care and Protection) Act 1998 (NSW) considered Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9(1), 3, 34(1), 91, 92, 94, 95, 98, 99A, 99B, 99C, 99D, 100, 101, 101AA, 105 Civil and Administrative Tribunal Act 2013 (NSW), s 45 Consolidated Equity Rules 1902 (NSW), r 55 Families, Communities and Disability Services Miscellaneous Amendment Act 2021 (NSW), Sch 3, item 9 Guardianship Act 1987 (NSW), ss 21C, 58 Judicature Rules 1875 (UK), O XIII r 1 Matrimonial Causes Act 1959 (Cth) Matrimonial Causes Rules 1960 (Cth), rr 118, 126 Stronger Communities Legislation Amendment (Children) Act 2021 (NSW) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 Clay v Clay (2001) 202 CLR 410; [2001] HCA 9 CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157 Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 Texts Cited: A Cairns, Eversley's Law of the Domestic Relations (5th ed, 1937, Sweet & Maxwell) Category: Principal judgment Parties: CM (a pseudonym) (Applicant) Secretary, Department of Communities and Justice (First Respondent) District Court of New South Wales (Second Respondent) RM (a pseudonym) (Third Respondent) Graeme Fordham (Fourth Respondent) Representation: Counsel: P Glissan (Applicant) M Anderson (First Respondent)