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

[2021] NSWCA 157

NSW Court of Appeal

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Interrogate

Catchwords

1. Child Welfare
2. › Care proceedings
3. › Guardian ad litem
4. › Appointment under Children and Young Persons (Care and Protection) Act 1998 (NSW)
5. › Interaction between ss 98(2A) and 100
6. › Whether appointment mandatory or discretionary where court of opinion party incapable of giving proper instructions
7. › Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 98(2A), 100
1. Statutes
2. › Construction
3. › Mandatory and directory provisions
4. › Words 'is to appoint'
5. › Whether imposing mandatory obligation or directing consideration of discretionary power
6. › Reading provision as a whole
7. › Harmonious construction of competing provisions
8. › Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 98(2A), 100

Quick Take

Section 98(2A) of the Care Act (as it was before the 2021 amendment, and consistently with the 2021 amendment) directs the Court to consider the discretionary criteria in s 100(1) — including whether the child or young person will benefit from the appointment — before appointing a guardian ad litem, rather than mandating appointment upon a finding of incapacity.