Important cases — Child Representatives/Independent Legal Representative (ILRs)

[3-1120] GR v Secretary, Department of Communities and Justice [2021] NSWCA 301

Last reviewed: June 2024

Three notices of motion in interlocutory proceedings — in substantive judgment, order for appointment of a guardian ad litem set aside (see GR v Secretary, Department of Communities and Justice [2021] NSWCA 157 at [3-1220]) — young person under legal incapacity not represented by either a tutor, guardian ad litem or legal representative — mother (appellant in substantive proceedings) proposed tutor be appointed — father opposed appointment — tutor selected by mother rejected as it would escalate conflict between parties — Independent Legal Representative (ILR) to be appointed — Crown Solicitor (i) to liaise with the Legal Aid Commission of NSW in order to effect ILR appointment; and (ii) to advise the parties of any proposal regarding appointment of a specific person as ILR — second and third notices of motion dismissed.

GR v Department of Communities and Justice [2020] NSWSC 1622

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.

DFaCS and the Prince Children [2019] NSWChC 2

Leave application by Independent Legal Representative (ILR) of one child to vary or rescind care orders in relation to all 5 children — Minister for Community Services in NSW exercises parental responsibility for older children — all children reside in Qld with their mother — children remain subject to final orders made by NSW court — ILR for one child has standing to bring an application pursuant to s 90 Care Act for all siblings — NSW Children’s Court has jurisdiction to hear and determine an application pursuant to s 90 for variation or rescission of the orders.

DFaCS and Leo [2019] NSWChC 3

Application pursuant to s 90 by Independent Legal Representative (ILR) for leave to vary or rescind care order — Children’s Court made a Final order of parental responsibility to the Minister and no restoration to mother — agency designated to provide permanent placement failed to do so and explored restoration contrary to court’s decision — no alternative long-term care options identified by Community Services or agency — Leave is granted to ILR to bring an application pursuant to s 90.

SL v S, DFaCS [2016] NSWCA 124

Judicial review in the supervisory jurisdiction of the Supreme Court — challenge to Children’s Court maternal grandparent parental order — whether District Court applied correct provisions of the Care Act subject to relevant amendments in 2014 — whether error of law on the face of the record or jurisdictional error — child suffered life-threatening head injuries when with mother — mother diagnosed with juvenile myoclonic epilepsy — whether injuries were non-accidental — whether child in need of care and protection — mechanism of injuries unexplained – no realistic possibility of restoration — whether there had been failure to make an appropriate contact order — whether reasons adequate for permanency planning — role of independent legal representative in care proceedings.

Re Jayden [2007] NSWCA 35

Care and protection — review of interim care responsibility orders — interim order conferring parental responsibility of children on Minister for Community Services — serious issue to be tried as to whether final order should be made — Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order — whether this amounts to an abuse of process — ss 69, 70, 70A and 72 Care Act considered — legal practitioners — parties to proceedings — whether legal practitioners appointed by the Children’s Court pursuant to s 99 Care Act to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court.