GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym)

1. [1]

   GLEESON JA: In separate proceedings in the Children’s Court and the Supreme Court (exercising the powers of the Children’s Court), orders were made appointing a guardian ad litem for a “child” and a “young person” respectively, pursuant to s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), which, at the date of the decisions, provided:

2. [2]

   For the purposes of the Care Act, a “child” is a person under the age of 16 years and a “young person” is a person aged 16 years or above and less than 18 years: s 3.

3. [3]

   The common question raised by the two proceedings is whether the Care Act requires the Children’s Court to appoint a guardian ad litem for the child or young person in the circumstances specified in s 98(2A) (namely, if the Children’s Court is of the opinion that a child or young person as a party to the proceedings is incapable of giving proper instructions to a legal representative), or whether the Children’s Court has a discretion to appoint a guardian ad litem under s 98(2A) considering the factors under s 100 of the Care Act.

4. [4]

   There are other questions raised in each proceeding: in the proceedings concerning the child, there is a question whether a child is a “party” or a necessary party to proceedings in the Children’s Court; in the proceedings concerning the young person who was a party to proceedings in the Supreme Court, there is a factual question whether the Court’s jurisdiction to appoint a guardian ad litem was engaged in the circumstance specified in s 98(2A), namely, whether the young person is incapable of giving proper instructions to a legal representative.

Background

1. [5]

   An explanation of how each proceeding comes to this Court is necessary.

2. [6]

   These proceedings concern the care and protection of a young person (AB), whose mother is GR and father is BB. The first respondent (the Secretary) assumed care and responsibility for AB pursuant to s 44 of the Care Act on 29 June 2018 when AB was a “child”; he became a “young person” when he turned 16 in October 2020. Interim care orders were made in the Children’s Court on 5 July 2018 and final care orders made on 28 August 2018, including that AB be placed under supervision of the Secretary for a period of 12 months (under s 76 of the Care Act). Thereafter, AB resided in the full-time care of his parents, with the Secretary again assuming care and responsibility on 21 February 2019, pursuant to s 44 of the Care Act. The Secretary filed an application under s 90 of the Care Act for rescission and variation of the existing care orders.

3. [7]

   On 27 February 2020, the President of the Children’s Court, Johnstone DCJ, delivered a judgment in which he found that there was no realistic possibility of restoration of AB to his parents and that the Secretary should be directed to file an Amended Care Plan addressing the question of permanency planning. His Honour made orders accordingly on 3 April 2020.

4. [8]

   GR appealed against those orders pursuant to s 91 of the Care Act. The appeal was properly brought in the Supreme Court by s 22A of the Children’s Court Act 1987 (NSW) and cl 5(1) of the Children’s Court Regulation 2019 (NSW). The effect of those provisions is that, on an appeal from the Presidential Children’s Court, the Supreme Court has all the functions and discretions that the Children’s Court has under Chapters 5 and 6 of the Care Act. Although the child, as he was then, had not been (formally) joined as a party in the Children’s Court proceedings, the child was joined as a party to the Supreme Court proceedings by order made by Slattery J on 22 May 2020 pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 50.18(1)(b): GR v Secretary, Department of Communities and Justice [2020] NSWSC 607 at [59].

5. [9]

   In the Supreme Court proceedings, GR sought by notice of motion interlocutory orders, including that Ms K Wooi (AB’s independent legal representative) be replaced with a different “direct legal representative” (see s 99A of the Care Act). Following a judgment delivered on 16 November 2020, Sackar J made orders on 17 November 2020 in respect of the motion, including dismissal of the application for Ms Wooi’s removal. His Honour also ordered that a guardian ad litem be appointed for AB: GR v The Department of Communities & Justice [2020] NSWSC 1622 (GR).

6. [10]

   Sackar J concluded that s 98(2A) required the Children’s Court to appoint a guardian ad litem under s 100 if the Court was, in the words of the section, “of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative”. His Honour thus concluded that in that circumstance, which his Honour found was applicable in respect of AB, the Court did not have any discretion as to whether it should make the appointment. Sackar J made orders to that effect on 17 November 2020. On 27 May 2021, Sackar J made an order that Mr William Hoyles be appointed guardian ad litem for the young person, AB.

7. [11]

   On 23 December 2020, Sackar J dismissed GR’s separate application for judicial review of the Children’s Court orders of 3 April 2020: GR v Secretary, Department of Communities and Justice [2020] NSWSC 1901.

8. [12]

   GR sought leave to appeal against Sackar J’s judgment and orders of 16 and 17 November 2020, and the judgment of 23 December 2020. On 17 May 2021, this Court granted leave to appeal limited to the challenge to order 2 made on 17 November 2020 appointing a guardian ad litem for the young person, AB: GR v Secretary, Department of Communities and Justice [2021] NSWCA 99. Ground 11 of the notice of appeal filed 31 May 2021, as pressed, challenges the finding by Sackar J that AB was incapable of giving proper instructions to a legal representative.

9. [13]

   The Secretary and the second respondent, the Minister for Families, Communities and Disability Services (the Minister), filed a notice of contention seeking to uphold the decision of the primary judge to appoint a guardian ad litem for the young person, AB, on the ground that it was a proper exercise of discretion conferred by ss 98(2A) and 100 of the Care Act.

10. [14]

    These proceedings concern the care and protection of a child (Oliver, a pseudonym), whose mother is BW and father is AM. On 30 November 2020, the day following the child’s birth, the Secretary assumed care and responsibility for Oliver pursuant to s 44 of the Care Act. The child is currently placed in the care of his maternal grandmother.

11. [15]

    On 3 December 2020, the Secretary filed an application in the Children’s Court seeking an order pursuant to the Care Act allocating parental responsibility for the child to the Minister. The Children’s Court appointed Ms Dian Neligan as the independent legal representative for the child pursuant to s 99(1) of the Care Act. Ms Neligan is a solicitor employed by the Legal Commission of New South Wales (NSW Legal Aid). On 4 December 2020, the Children’s Court made an interim order pursuant to s 69 of the Care Act allocating parental responsibility for the child to the Minister until further order. On 22 January 2021, the Children’s Court (Magistrate D Williams) made orders directing the appointment of a guardian ad litem for the child: Re Oliver [2021] NSWChC 1.

12. [16]

    After stating his own view that the decision of Sackar J in GR is undoubtedly correct (at [3]), the Magistrate found that the proceedings relate to a child who is less than two months and that a child of two months is incapable of giving proper instructions to a legal representative. Thus, pursuant to the mandatory requirement in s 98(2A), if Oliver is a party to the proceedings, the Children’s Court is obliged to appoint a guardian ad litem for the child: at [4]. The Magistrate noted the submissions of the Secretary, which were supported by the independent legal representative for the child and both parents, that the mandatory obligation to appoint a guardian ad litem did not operate because the child was not a party to the proceedings: at [6]-[7]. The Magistrate rejected this submission and concluded that Oliver was a party to the proceedings because the word “party” in s 98(2A) of the Care Act includes the child or young person the subject of the proceedings: at [42]. On 21 May 2021, the Magistrate made an order appointing Ms Amelia Pace as the guardian ad litem for Oliver.

13. [17]

    By summons filed on 20 April 2021, the Secretary sought judicial review of the Children’s Court decision and order of 22 January 2021 to appoint a guardian ad litem for the child. The Secretary filed an amended summons on 24 May 2021, seeking judicial review of the order of the Children’s Court on 21 May 2021 to appoint Ms Pace as guardian ad litem for Oliver.

14. [18]

    The Secretary contends that there is an error of law on the face of the record of the Children’s Court for two essential reasons: first, the child is not a party to the proceedings in the Children’s Court, and second, s 98(2A) of the Care Act, properly construed, is directory and not mandatory. The Secretary also contends that the Magistrate’s decision is affected by jurisdictional error because the Magistrate did not consider the requirements in s 100 of the Care Act for the appointment of a guardian ad litem.

15. [19]

    On 18 May 2021, Sackar J granted leave to NSW Legal Aid to appear as amicus in the judicial review proceedings, and made an order removing the proceedings into this Court for the separate determination of three questions:

16. [20]

    Both the third defendant, the independent legal representative for Oliver, and the fourth defendant, the Children’s Court of New South Wales, filed submitting appearances. The first and second defendants, the mother BW and the father of Oliver, did not appear in the proceedings.

Outline of legislative scheme

1. [21]

   The objects of the Care Act include that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them: s 8(a).

2. [22]

   Section 10 of the Care Act states the principle of participation: the Secretary is responsible for providing the child or young person with certain information, opportunities to express his or her views, and assistance to ensure that the child or young person is able to participate in decisions made under or pursuant to the Care Act that have a significant impact on his or her life. Such decisions include, but are not limited to, Children’s Court applications concerning the child or young person: s 10(3)(c). In the application of the principle of participation, due regard must be had to the age and developmental capacity of the child or young person: s 10(2).

3. [23]

   The Care Act provides for several different kinds of proceedings to be brought before the Children’s Court (see Chapter 5), including a care application for an order for, or with respect to, the care and protection of a child or young person (s 61), which includes a contact order (s 86), an application for a guardianship order (s 79B), and an application for rescission and variation of care orders (s 90).

4. [24]

   Although there is no definition of “party” in the Care Act (other than in s 109(1) for the purposes of Pt 2 of Ch 6 dealing with the attendance of witnesses and the production of documents), Pt 2 of Ch 5 contemplates that there are “parties” to a care application, that the Secretary is entitled to be a party to certain applications, and certain rights are conferred on a “party” or “parties” to the care application or care proceedings: ss 65, 68, 79B(6), 86, 90 and 91.

5. [25]

   Chapter 6 of the Care Act provides for the procedure in proceedings before the Children’s Court under the Care Act: s 92. Proceedings before the Children’s Court are not to be conducted in an adversarial manner and are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit: s 93(1)-(2). Matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and their family: s 94. The Children’s Court must ensure that the child or young person has the fullest opportunity practicable to be heard, and to participate, in the proceedings: s 95(3).

6. [26]

   The Children’s Court may, on its own initiative, or at the request of any party to the proceedings, require the attendance at the courthouse where the proceedings are conducted of specified persons, including the child or young person and any parent of the child or young person or any other person who has, or has had, care responsibility for the child or young person: s 96(1). The Children’s Court is to take into account whether the child or young person wishes not to be present before the Children’s Court during the hearing of any proceedings: s 96(2).

7. [27]

   Section 98 of the Care Act confers a right of appearance on various persons either by right or by leave of the Children’s Court. At the time of the decisions in GR and BW, s 98 provided:

8. [28]

   The Families, Communities and Disability Services Miscellaneous Amendment Act 2021 (NSW) (2021 Amendment Act), which received Royal Assent on 23 June 2021, amended s 98(2A) by replacing the words “the Children’s Court is to” with the words “the Children’s Court may”: Item [9], Sch 3. The Explanatory Note to the Families, Communities and Disability Services Miscellaneous Amendment Bill 2021 (NSW) stated that the amendment to s 98 of the Care Act is to ensure the Children’s Court retains discretion whether to appoint a guardian ad litem for a person who is incapable of giving proper instructions in proceedings, rather than being obliged to do so.

9. [29]

   Schedule 1 to the 2021 Amendment Act provides for the making of regulations of a savings or transitional nature. While no regulations have yet been made, the effect of Item 1(4) of Sch 1 (that a savings or transitional provision for a provision of the 2021 Amendment Act may not take effect before the date of assent to the Act) is that any regulations cannot have retroactive effect for the amendment to s 98(2A) of the Care Act before the date of assent (23 June 2021).

10. [30]

    The Care Act provides for the representation of children and young persons in proceedings before the Children’s Court. A legal representative may be appointed by the Children’s Court to act for a child or young person if it appears to the Court that the child or young person needs to be represented in any proceedings before it (s 99(1)); otherwise, a legal representative for a child or young person who has not been appointed by the Children’s Court may appear only with leave (s 99(2)).

11. [31]

    The circumstances in which a legal representative for a child or young person is to act as a direct legal representative, or as an independent legal representative, are set out in s 99A:

12. [32]

    The Care Act contains a rebuttable presumption in s 99B(1) that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative. However, the Children’s Court may, on the application of a legal representative for a child who is less than 12 years of age, make a declaration that the child is capable of giving proper instructions: s 99B(2).

13. [33]

    The Care Act also contains a rebuttable presumption in s 99C(1) that a child who is not less than 12 years of age, or a young person, is capable of giving proper instructions to his or her legal representative, which is not rebutted merely because the child or young person has a disability. However, the Children’s Court may, on the application of a legal representative for a child who is not less than 12 years of age, or a young person, make a declaration that the child or young person is not capable of giving proper instructions: s 99C(2).

14. [34]

    The respective roles of a direct legal representative and an independent legal representative are set out in s 99D. Relevantly, the role of an independent legal representative includes:

15. [35]

    The Care Act makes provision for the appointment of a guardian ad litem for a child or young person in the circumstances specified in s 100:

16. [36]

    The Care Act also makes provision for the appointment of a guardian ad litem for either or both parents of a child or young person in the circumstances specified in s 101. This section is not relevant to either of the present proceedings.

THE SECRETARY v BW

1. [37]

   It is convenient first to address separate question 3.

Question 3: ss 98(2A) and 100

1. [38]

   The focus of the Secretary’s challenge to the Magistrate’s decision was the reasoning in GR, given that the Magistrate applied Sackar J’s mandatory construction of ss 98(2A).

2. [39]

   The dispositive reasoning in GR is at [57]:

3. [40]

   Sackar J reasoned that the construction of s 98(2A) advanced by the Secretary and the Minister, that s 98(2A) is not a mandatory provision, leaves no work for the words “is to appoint” and renders the test “incapable of giving proper instructions” insignificant, given that ss 100 and 101 are in discretionary terms and apply different tests for the question of when it might be appropriate to appoint a guardian ad litem for a child or young person or either or both of the parents: GR at [60].

4. [41]

   Sackar J also reasoned that the Care Act contemplates two different regimes involving a child or young person incapable of giving instructions depending on whether the child or young person is a party to the proceedings, and that this is consistent with the word “or” in s 99A(2): GR at [65]. Under the first regime, where a child or young person incapable of giving instructions is a party to the proceedings, his Honour considered that s 98(2A) directed the Court to appoint a guardian ad litem to perform the functions stipulated in s 100(3): GR at [64]. Under the other regime, where a child or young person is not a party to the proceedings, his Honour considered that the Court would have the option of appointing either a legal representative under s 99 or a guardian ad litem under s 100(1), or both: GR at [62]-[63].

Submissions

1. [42]

   The Secretary contends that the Magistrate erred in law in finding that, pursuant to the mandatory requirement in s 98(2A) of the Care Act, the Children’s Court is obliged to appoint a guardian ad litem for the child, Oliver, if he is a party to the proceedings.

2. [43]

   The Secretary submitted that s 98(2A) directs the Children’s Court to the discretionary criteria set out in s 100(1), which includes the criteria stated in s 100(1)(b), namely, that the child or young person would benefit from the appointment of a guardian ad litem. According to the submission, the Magistrate erred in treating the Care Act as not requiring the Children’s Court to consider this factor in situations where the child is a party to the proceedings.

3. [44]

   The Secretary candidly acknowledged that s 98(2A), as it then was, is ambiguous because the demand that the Children’s Court “is to appoint” a guardian ad litem does not sit easily with the requirement that the appointment be under either ss 100 or 101, “as the case may require”, given both of those sections are plainly discretionary. However, the Secretary says that s 98(2A) must be read in its statutory context, the plain text of which contemplates a scenario in which a child will be incapable of giving instructions but will be appropriately represented by an independent legal representative.

4. [45]

   The Secretary submitted that the Court should answer question 3 as follows:

5. [46]

   Senior counsel for the amicus supported the Secretary’s position for essentially four reasons.

6. [47]

   First, reading s 98(2A) as a whole, the obligation posed by the provision is not an obligation to appoint a guardian ad litem simpliciter, but an obligation to appoint a guardian ad litem under ss 100 or 101. That directs the Court to the relevant provision for the appointment of a guardian ad litem.

7. [48]

   Second, s 99A(2) contemplates that there will be circumstances where the child or young person is not capable of giving proper instructions, but no guardian ad litem has been appointed. That is consistent with a non-mandatory construction of s 98(2A).

8. [49]

   Third, a non-mandatory construction of s 98(2A) is consistent with the purpose of the Care Act in protecting the interests of children and young persons and facilitating the representation of their interests. The criterion in s 100(1)(b) recognises that the appointment of a guardian ad litem may not always be beneficial to the child or young person, depending on the circumstances of the case.

9. [50]

   Fourth, a mandatory construction of s 98(2A) would tend to be contrary to the objects of the Care Act and the structure of s 100. It would, in effect, require the mandatory appointment of a guardian ad litem in all care proceedings where the child is under 12 years of age (subject to any declaration that the child, although under 12 years of age, is capable of giving instructions: s 99B). The criterion in s 100(1)(b) would be rendered otiose in those cases, as it would require the appointment of a guardian ad litem regardless of whether the appointment was beneficial for the child. Having regard to the requirement in s 100(1)(b), the construction of s 98(2A) that is most consistent with the protection of the child’s interests is that s 98(2A) does not require the mandatory appointment of a guardian ad litem.

10. [51]

    The amicus submitted that separate question 3 should be answered as follows:

11. [52]

    In the GR appeal, senior counsel for GR neither supported nor challenged the construction of ss 98(2A) and 100 of the Care Act espoused by Sackar J in GR.

12. [53]

    Ms Wooi, the independent legal representative for AB, informed the Court that the guardian ad litem appointed by Sackar J had instructed her that he does not have a view as to the correct interpretation of ss 98 and 100 of the Care Act, but relies on the legal advice of Ms Wooi as the independent legal representative for AB. Ms Wooi supported and adopted the submissions of the Secretary that the appointment of a guardian ad litem under s 98(2A) is not mandatory.

Relevant principles

1. [54]

   The starting point for the ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].

2. [55]

   A statute is to be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals and a court must strive to give meaning to every word of the provision: Project Blue Sky at [70]-[71]. The joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky explained at [70]:

3. [56]

   Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies: SAS Trustee Corporation v Miles at [20] citing Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [66] (Gageler and Keane JJ); SZTAL v Minister at [38] (Gageler J).

Reasoning

1. [57]

   The Explanatory Note to the Children and Young Persons (Care and Protection) Bill 1998 (NSW) contains the following in relation to Ch 6 of the Care Act:

2. [58]

   Section 98(2A) was introduced by the Children and Young Persons (Care and Protection) Amendment Act 2006 (NSW). In the second reading speech on 10 May 2006, the Hon Reba Meagher, Minister for Community Services, and Minister for Youth, relevantly said:

3. [59]

   The second reading speech does not provide specific guidance in relation to the interpretation of s 98(2A), but consistent with the principle of expeditiousness provided for in s 94 of the Care Act, it appears that the amendments were aimed to provide greater clarity and simplification of the process regarding the representation of children and young persons in proceedings under the Care Act. The evident intent of s 98(2A) is to require the Court to consider the appointment of a guardian ad litem under ss 100 or 101 at the earliest possible stage of the proceedings.

4. [60]

   Turning to the text, the words “is to appoint” in s 98(2A) read literally and in isolation, appear to be a command admitting of no discretion or exception. However, that is not the correct approach to construction; the words of the provision must be read as a whole. As Leeming JA (Basten and Barrett JJA agreeing) said in 2 Elizabeth Bay Road Pty Ltd v Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [82]:

5. [61]

   When s 98(2A) is read as a whole, the obligation it imposes is not an obligation to appoint a guardian ad litem simpliciter, but an obligation to appoint a guardian ad litem “under” ss 100 or 101. The correct reading of s 98(2A) is that it directs the Children’s Court to the relevant provision for the appointment of a guardian ad litem; in the case of a child or young person, the power is in s 100.

6. [62]

   The power conferred on the Children’s Court by s 100 is a discretionary power; that is the ordinary meaning of the word “may”: Interpretation Act 1987 (NSW), s 9(1). The amicus raised a possible alternative reading of the word “may” as reposing a power which must be exercised in the circumstances stated in s 100(1): Julius v Lord Bishop of Oxford (1880) 5 App Cas 214. It seems to me unlikely that Parliament would have intended “may” to have that meaning. However, on either reading of “may” in s 100, the power to appoint a guardian ad litem arises only where the Court is of the opinion that there are special circumstances that warrant the appointment and that the child or young person will benefit from the appointment: s 100(1).

7. [63]

   Both the Secretary and the amicus correctly submitted that these aspects of s 100(1) are given no work to do if the words “is to appoint” in s 98(2A) are read in isolation and as a mandatory command; that would offend the principle that the provision of an Act “must be read, not as if it were entirely divorced from its context, but as part of the whole instrument”: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455; [1925] HCA 5 (Isaacs and Rich JJ).

8. [64]

   Three aspects of the reasoning of the primary judge in GR require further comment.

9. [65]

   First, a non-mandatory construction of s 98(2A) still leaves work to be done by the words “is to appoint”: cf GR at [60]. The words “is to appoint” in s 98(2A), directs the Children’s Court to ss 100 and 101 as the relevant provisions for the appointment of a guardian ad litem, ensuring that the appointment is considered at an early stage of the proceedings, being at the same time the Court has to consider whether the child or young person is incapable of giving instructions to a legal representative: see [58] above. That construction gives effect to the harmonious goals of ss 98(2A) and 100: Project Blue Sky at [70].

10. [66]

    In addition, as the amicus submitted, the words “is to appoint” also have some further work in the context of s 101 which provides that, if the Court is of the opinion that a parent is incapable of giving proper instructions to their legal representative, the Court may appoint a guardian ad litem for the parent pursuant to s 101(1)(a), or request the legal representative of the parent to act as amicus curiae pursuant to s 101(1)(b). Where s 98(2A) applies to a parent who is a party to Children’s Court proceedings, the option to request the legal representative of the parent to act as amicus curiae is displaced.

11. [67]

    Second, a non-mandatory construction does not render the test of “incapable of giving proper instructions” in s 98(2A) insignificant: cf GR at [60]. This test still has significance in the context of s 98(2A); it provides the circumstance which directs the Children’s Court to consider the exercise of its powers under ss 100 or 101.

12. [68]

    Third, a mandatory construction is not justified by the view that the Care Act contemplates two regimes for the appointment of a guardian ad litem – one for parties and one for non-parties – and that s 98(2A) only applies to parties to proceedings: GR at [65]. Although s 98(2A), unlike ss 100 and 101, only applies to parties to proceedings, the operation of s 99A does not turn on the status of the child or young person as a party, but on whether the child or young person is capable of giving proper instructions and whether a guardian ad litem has been appointed for the child or young person.

13. [69]

    The effect of s 99A is that a legal representative is to act as a direct legal representative where a child or young person is capable of giving proper instructions “and” a guardian ad litem has not been appointed (s 99A(1)). Where either of those requirements is not met, a legal representative is to act as an independent legal representative (s 99A(2)). The natural reading of s 99A is that the words “and” and “or” in sub-ss (1) and (2) respectively are used in their ordinary conjunctive and disjunctive sense. I do not consider that the use of the word “or” in sub-s (2) is a mistake. Nor does the context indicate that the word “or” has the effect of “and”. Thus, s 99A(2) expressly contemplates that there will be circumstances where the child or young person is not capable of giving proper instructions, but no guardian ad litem has been appointed.

14. [70]

    A non-mandatory construction of s 98(2A) is also consistent with s 99D(b)(i) which expressly contemplates, consistent with s 99A(2), that an independent legal representative may be appointed without there also being a guardian ad litem appointed. That is plain from the use of the conditional conjunction “if” in s 99D(b)(i).

15. [71]

    Although the Care Act contemplates that there may be cases in which a child or young person will have both a guardian ad litem and a legal representative appointed by the Court (see ss 99A(2)(b), 99D(1)(b)(i) and 100(4)), the criterion in s 100(1)(b) (that the Court must also be of the opinion that the child or young person will benefit from the appointment) recognises that the appointment of a guardian ad litem may not always be beneficial to the child or young person.

16. [72]

    For example, the amicus identified two types of cases where the appointment of a guardian ad litem may be less likely to be beneficial to the child or young person: (a) where the child is an infant, incapable of holding or conveying any views, and (b) where the child or young person, although incapable of giving proper instructions, can convey their views to their legal representative.

17. [73]

    In the first type of case, adding another layer of representation for the child is apt to result in unnecessary duplication without any benefit to the child represented. Without intending to intrude on any future consideration by the Children’s Court of the s 100(1) criterion, the proceedings concerning the child, Oliver, is likely to be such a case.

18. [74]

    In the latter type of case, the appointment of a guardian ad litem would add a layer of communication that may make it more difficult for the child or young person’s legal representative to respond quickly to evolving circumstances and to assist the Court in conveying the child or young person’s views and make submissions about what is in the child or young person’s best interests. The appointment in such a case may be productive of delays, which is contrary to the emphasis of the Care Act on the expeditious progress of proceedings: s 94. In Re Kara (No 6) [2020] NSWSC 1857 at [79], a case involving the Supreme Court’s exercise of its parens patriae jurisdiction, Williams J made a similar point about the disadvantages of adding an additional layer of communication when declining to appoint a tutor for a young person aged 16 years whose interests were already represented by the appointment of an independent legal representative.

19. [75]

    Conversely, other types of cases can be envisaged where the appointment of a guardian ad litem is more likely to be beneficial for the child or young person. The amicus identified, by way of example, complex cases, or cases involving a child with complex needs, where the appointment of a guardian ad litem, particularly one having relevant specialised training or experience, may better facilitate the ascertainment of the child or young person’s views and the interests of the child or young person in the proceeding, notwithstanding that it would add a layer of communication between the child or young person and his or her legal representative.

20. [76]

    The scenarios referred to above serve to highlight that a non-mandatory construction of s 98(2A) is more consistent with the scheme of the Care Act and the identified object of s 98(2A) when read with s 100(1), that the appointment of a guardian ad litem for a child or young person is subject to the criterion in s 100(1), specifically that the appointment would be beneficial for the child.

21. [77]

    In my view, separate question 3 should be answered substantially in the terms proposed by the amicus (see [51] above) but taking into account the recent amendment to s 98(2A) effective 23 June 2021.

22. [78]

    Given that the Magistrate erred in adopting a mandatory construction of s 98(2A) of the Care Act and did not address the discretionary considerations in s 100(1) when appointing a guardian ad litem for the child, Oliver, there is an error of law on the face of the record of the Children’s Court decision and orders of 22 January 2021 and the further order made on 21 May 2021 appointing Ms Pace as the guardian ad litem for the child. These orders should be quashed.

23. [79]

    For completeness, it should be noted that the conclusion on question 3 is consistent with the recent amendment made by the 2021 Amendment Act to clarify the non-mandatory operation of s 98(2A) of the Care Act: see [28] above.

Questions 1 and 2: whether a child or young person is a “party” to Children’s Court proceedings?

1. [80]

   Both the Secretary and the amicus provided detailed written submissions on the meaning of “party” in the Care Act, specifically in s 98(2) and (2A). As indicated, the word “party” is not generally defined in the Care Act.

2. [81]

   The Secretary submitted that a child or young person is not automatically a “party” to proceedings as referred to in s 98(2) and (2A) of the Care Act, nor a necessary party to proceedings. It was submitted that the concept of a “party” in Children’s Court proceedings is functional in the sense that it identifies the range of persons who can exercise the opportunity to participate in the proceedings as of right (s 98(1)). The Secretary submitted that separate questions 1 and 2 should be answered:

3. [82]

   The amicus submitted that in any proceedings with respect to a child or young person, a person with the right of appearance pursuant to s 98(1) (or who has been granted leave to appear pursuant to s 98(3)) is a “party” to those proceedings for the purposes of the Care Act. The amicus submitted that separate questions 1 and 2 should be answered:

4. [83]

   Having regard to the answer to separate question 3, it is not necessary to answer separate questions 1 and 2. Whatever the correct meaning of the word “party” in s 98(2) and (2A) of the Care Act, the Secretary has established an error of law on the face of the record of the Children’s Court decision and orders: see [78] above.

5. [84]

   There is a further reason why it is not necessary to answer separate questions 1 and 2. As appears from the reasons of the Magistrate at [6], Ms Neligan, the independent legal representative for the child, appeared before the Children’s Court on 4 December 2020 and argued against the appointment of a guardian ad litem on the ground that the child was not a party to the proceedings. Even on the Secretary’s view that the concept of “party” is not automatic but functional in the sense of a listed person exercising the opportunity to appear in the proceedings as of right (s 98(1)), in this case the child exercised the opportunity to appear in the proceedings through his legal representative, Ms Neligan, and therefore was a party to the proceedings in the Children’s Court.

6. [85]

   The correct meaning of the word “party” in the Care Act, should be left to a case where the answer is dispositive.

7. [86]

   Neither the Secretary nor NSW Legal Aid sought any costs order. The other parties to the judicial review proceedings either filed submitting appearances or did not appear. No order for costs should be made.

GR v THE SECRETARY

1. [87]

   The sole ground of appeal is the challenge by GR to the finding of the primary judge that the young person, AB, was incapable of giving instructions to a legal representative: at [91]. Senior counsel for GR submitted that this finding was not supported by the evidence and, in order for the Court to appoint a guardian ad litem, AB must be certified by a psychiatrist as mentally unfit to instruct a lawyer, and he has not been. It was submitted that the primary judge’s decision thereby miscarried. As indicated, GR did not make submissions on the proper construction of s 98(2A).

2. [88]

   BB supported GR’s submission that the appointment of the guardian ad litem should be set aside. He submitted that the guardian did not add any value to the representation of AB.

3. [89]

   The Secretary and the Minister submitted that the primary judge’s construction of s 98(2A) was wrong for the reasons advanced in the BW proceedings with respect to question 3.

4. [90]

   Although the Secretary and the Minister initially sought to uphold the finding that AB was incapable of giving proper instructions to a legal representative, ultimately they did not press their notice of contention that the decision of the primary judge should be upheld on the ground that the appointment of the guardian ad litem for AB was a proper exercise of the discretion conferred by ss 98(2A) and 100 of the Care Act.

5. [91]

   That was not surprising given the different position taken by the Secretary and the Minister below that such an appointment would not benefit AB because he was already represented by Ms Wooi, the independent legal representative. In addition, the primary judge had not addressed the discretionary considerations in s 100(1), specifically, whether such an appointment would benefit AB (s 100(1)(b)), because his Honour considered that s 98(2A) required the mandatory appointment of a guardian ad litem in the circumstances specified. Thus, it is not necessary to address the notice of contention.

Disposition of the appeal

1. [92]

   For the reasons given above in answer to separate question 3 in the BW proceedings, the primary judge erred in adopting a mandatory construction of s 98(2A) of the Care Act and thereby not addressing the discretionary considerations in s 100(1) when appointing a guardian ad litem for AB.

2. [93]

   Accordingly, order 2 made on 17 November 2020 and the further order made on 27 May 2021 appointing Mr Hoyles as the guardian ad litem for AB should both be set aside. No party sought an order for remittal of the proceedings to the Court below for further consideration of whether the Court should appoint a guardian ad litem for AB under ss 98(2A) and 100.

3. [94]

   In the circumstances, it is not necessary to determine the factual challenge by GR based on the “no evidence” submission. However, I will briefly indicate my views, were it necessary to decide this ground.

4. [95]

   First, I would reject GR’s submission that in order for the Court to appoint a guardian ad litem, the child or young person must be certified by a psychiatrist as mentally unfit to instruct a lawyer. Whilst the Court may be assisted in its assessment by medical evidence, the question of capacity to give proper instructions to a legal representative is a question of fact for the Court: see by analogy, in the context of testamentary capacity, The Estate of Genevieve Bryan [2021] NSWSC 567 at [95], citing Croft v Sanders [2019] NSWCA 303 at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing).

5. [96]

   Second, I would accept the Secretary’s submission that the finding that AB was incapable of giving proper instructions to a legal representative was open to his Honour given the following matters:

   1. (1)

      AB had significant difficulty communicating verbally and he could only provide brief written answers;

   2. (2)

      AB is at a very early stage of adolescent development and would still probably have at least six or seven years of adolescent development to continue once he reaches the age of 18;

   3. (3)

      AB’s choices were biased towards keeping things the same or returning to how they were. AB’s thinking was slow and concrete and he was clearer about what he does not want than what he wants; and

   4. (4)

      AB did not have an appreciation of the consequences of potential outcomes and an understanding of the legal ramifications of giving instructions.

6. [97]

   Although GR sought an order for costs in her notice of appeal (par [16]) that the Secretary, the Minister and Ms Wooi pay the costs of both GR and BB, the parties did not address the Court on the question of costs. Nevertheless, the appropriate order is that there be no order as to costs of the appeal because GR has only succeeded on a basis which was not argued by her, and it has not been necessary to determine the only ground of appeal pressed by GR.

Conclusion and Orders

1. [98]

   Separate question 3 should be answered in the manner consistent with the submissions of the Secretary and the amicus. The terms of the answer should be substantially as proposed by the amicus but limited to the terms of s 98(2A) of the Care Act prior to the amendment by the 2021 Amendment Act effective 23 June 2021. It is not necessary to answer separate questions 1 and 2.

2. [99]

   Since the Secretary has succeeded in establishing error of law on the face of the record of the Magistrate’s decision, the decision and orders of the Children’s Court on 22 January 2021 and the order made on 21 May 2021 should be quashed.

3. [100]

   Accordingly, I propose the following orders:

   1. (1)

      The separate questions ordered on 18 May 2021 be answered as follows:

   2. (2)

      That the decision and order of the Children’s Court on 22 January 2021 and the order made on 21 May 2021 appointing Ms Amelia Pace as guardian ad litem for the child, Oliver, be quashed.

   3. (3)

      Make no order as to the costs of the proceedings in the Supreme Court or in this Court.

4. [101]

   The appeal by GR has succeeded, but on a basis which was not argued by GR. Given that no party sought a remittal, the appropriate relief is to set aside order 2 made by Sackar J on 17 November 2021 and the further order made on 27 May 2021. There should be no order as to costs in this Court.

5. [102]

   Accordingly, I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside both order 2 made on 17 November 2020 and the order made on 27 May 2021 appointing Mr William Hoyles as the guardian ad litem of the young person AB.

   3. (3)

      Make no order as to costs in this Court.

6. [103]

   WHITE JA: I agree with Gleeson JA.

7. [104]

   EMMETT AJA: I have had the considerable advantage of reading in draft form the reasons of Gleeson JA, with which I agree. I also agree with the orders that his Honour proposes.