Appeal of CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 (at [3-1220]) — previously appointed GAL ceased her appointment — mother sought judicial review of appointment of GAL — unnecessary to make order that mother be legally represented before appointing GAL — ss 98, 101, 101AA Care Act and changes made by the Stronger Communities Legislation Amendment (Children) Act 2021 considered — no reason why the legislation would be construed on the basis that it was first necessary to make an order for legal representation before appointing a guardian ad litem — application dismissed.

Notices of motion concerning pending application for leave to appeal GR v Department of Communities and Justice [2021] NSWSC 1081 (see [3-1420]) — order sought by mother for tutor to be appointed and child be allowed to participate in appeal hearing directly and via his tutor — tutor may be appointed to act on behalf of a person under a legal disability who is an initiator of legal proceedings, whereas a guardian ad litem is appropriate representation for a person who is a defendant or respondent to proceedings — evidence required that proposed tutor consents to being appointed and does not have any interest in the proceeding adverse to the interests of the person under legal incapacity (UCPR r 7.18) — applicant has not identified the person she proposes to be appointed as tutor and there is no evidence of consent, nor understanding of what is involved in undertaking the role of tutor — order for the appointment of a tutor refused but the question of appointment of a legal representative or a guardian ad litem left open — see further GR v Secretary, Department of Communities and Justice [2021] NSWCA 301 at [3-1120].

Appeal — care proceedings — ss 98(2A), 100 Care Act — guardian ad litem appointed for a child and young person in separate proceedings — where a party to proceedings is incapable of giving proper instructions to a legal representative, s 98(2A) directs court to consider the discretionary factors in ss 100 or 101 before appointing a guardian ad litem — primary judge erred in adopting a mandatory construction of s 98(2A) and not addressing the discretionary considerations in s 100(1) when appointing a guardian ad litem — appeal allowed and previous orders quashed — see further GR v Secretary, Department of Communities and Justice [2021] NSWCA 301 at [3-1120].

Order sought in court’s parens patriae jurisdiction to set aside appointment of guardian ad litem (“GAL”) — ss 98(2A) and 101 Care Act — in a separate hearing a GAL appointed for the mother under s 101 Care Act to assist the mother in conducting her appeal — mother is self-represented and does not wish to be legally represented — mother not capable of adequately representing herself within s 98(2A) Care Act — incapable of giving proper instructions to legal representative within s 101 Care Act, then an appointment of a GAL can be made — two step process: court must first go through the gateway of s 98 and make a judgment about whether the person is “capable of adequately representing…herself”; then court must make a separate judgment about whether the person is “incapable of giving proper instructions” to his or her legal representative — application dismissed.

Care Act s 98(2A) — Mother sought to remove Independent Legal Representative (ILR) and proposed a Direct Legal Representative (DLR) for child — application opposed by ILR — whether a guardian ad litem ought to be appointed for child — whether ILR should be removed and whether she should continue as a party — child does not have requisite capacity to understand and give instructions in legal proceedings, and understand legal ramifications — guardian ad litem must be appointed — ILR to take instructions from guardian ad litem and can be removed as a party to these proceedings if such an order is sought.