GO v Secretary, Department of Family and Community Services [2017] NSWDC 198

District Court New South Wales

Medium Neutral Citation: GO v Secretary, Department of Family and Community Services [2017] NSWDC 198 Hearing dates: 31 July 2017 Decision date: 04 August 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Grant leave to appeal; uphold the appeal; For orders see [39] Catchwords: Joinder of person with genuine concern for the welfare of a child to care proceedings Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 98(3) Cases Cited: Bell-Collins v Secretary, Department of Family and Community Services [2015] NSWSC 701 EL v WL and Director of Department of Human Services [2010] NSWDC 248 House v The King (1936) 55 CLR 499 Category: Procedural and other rulings Parties: GO (Plaintiff) Secretary, Department of Family and Community Services (Defendant) Representation: Counsel: No appearance (Plaintiff) P Davies (Department of FACS) B Kelly (Independent Legal Representative

Solicitors: File Number(s): 17/127311 Publication restriction: Non-Publication of Names of Appellant, Mother and Child

Judgment 1. By Summons filed on 13 April 2017, the appellant seeks leave to appeal a decision of the Children's Court at Woy Woy on 17 March 2017, refusing an application by her to be joined as a party to proceedings in the Children's Court. 2. Those proceedings are child protection, or care proceedings in respect of NRJ, the great-granddaughter of the appellant. NRJ was born on 3 August 2016 and assumed into care shortly after her birth. Her mother, TG, was brought up by the appellant from about 3 years of age when she was placed in the appellant's care. TG has been, and is, legally represented in the Children's Court proceedings, which are listed for final hearing on 12 and 13 September 2017. 3. The appellant's application in the Children's Court was brought pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"), which provides as follows: "98 Right of Appearance (1) In any proceedings with respect to a child or young person: (a) The child or young person and each person having parental responsibility for the child or young person and, (b) The Secretary, and, (c) The Minister, may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. (2) However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented. (2A) If the Children's Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children's Court is to appoint a guardian ad litem for the person under s 100 or 101 (as the case may require). (3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and wellbeing of the child or young person, may, by leave of the Children's Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross‑examine witnesses on matters relevant to the proceedings." 1. The appellant's application in the Children's Court was opposed by both the Secretary and the Independent Legal Representative of NRJ. However, it was common ground that the appellant was a person who "has a genuine concern for the safety, welfare and wellbeing of the child" NRJ. The learned Children's Court Magistrate made a finding to that effect. 2. However, the learned Children's Court Magistrate refused to exercise her discretion to grant leave to the appellant. It is from that refusal that the appellant now seeks leave to appeal. If leave is granted, the appellant seeks orders that the appeal be allowed and that she be joined as a party to the care proceedings.