ACC v Secretary, Department of Communities and Justice [2026] NSWSC 979

Catchwords: APPEALS — from a decision of the Children’s Court — notice of motion seeking appeal for leave out of time and appeal of the decision made in the Children's Court — notice of motion dismissed JURISDICTION — care proceedings and order from Children's Court — appeal under s 91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) — this Court does not have statutory jurisdiction to determine an appeal from orders of the Children’s Court — considered as an application for judicial review JUDICIAL REVIEW — plaintiff states there was a denial of procedural fairness as she claims the orders were made in her absence or that she had no opportunity to participate as she was overseas — guardian ad litem had been appointed to represent plaintiff's interests in the Children's Court — not satisfied that there was a realistic possibility that the orders would have been different if plaintiff was present — no procedural fairness — no basis for relief established APPLICATION FOR SUMMARY DISMISSAL — defendant seeks summary dismissal pursuant to UCPR r 13.4 — no statutory basis for the plaintiff to have commenced proceedings by appeal in this Court — no jurisdictional error or an error of law on the face of the record to support a judicial review — proceedings are bound to fail and are thus frivolous, vexatious and an abuse of process — summary dismissal granted Supreme Court New South Wales Medium Neutral Citation: ACC v Secretary, Department of Communities and Justice [2026] NSWSC 979 Hearing dates: 30 June 2026 Date of orders: 17 August 2026 Decision date: 17 August 2026 Jurisdiction: Common Law Before: Coleman J Decision: (1) The Plaintiff’s Notice of Motion filed 18 March 2026 is dismissed; (2) The Amended Summons filed 30 March 2026 is dismissed; and (3) There is no order as to costs. Catchwords: APPEALS — from a decision of the Children’s Court — notice of motion seeking appeal for leave out of time and appeal of the decision made in the Children's Court — notice of motion dismissed JURISDICTION — care proceedings and order from Children's Court — appeal under s 91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) — this Court does not have statutory jurisdiction to determine an appeal from orders of the Children’s Court — considered as an application for judicial review JUDICIAL REVIEW — plaintiff states there was a denial of procedural fairness as she claims the orders were made in her absence or that she had no opportunity to participate as she was overseas — guardian ad litem had been appointed to represent plaintiff's interests in the Children's Court — not satisfied that there was a realistic possibility that the orders would have been different if plaintiff was present — no procedural fairness — no basis for relief established APPLICATION FOR SUMMARY DISMISSAL — defendant seeks summary dismissal pursuant to UCPR r 13.4 — no statutory basis for the plaintiff to have commenced proceedings by appeal in this Court — no jurisdictional error or an error of law on the face of the record to support a judicial review — proceedings are bound to fail and are thus frivolous, vexatious and an abuse of process — summary dismissal granted Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v Secretary, Department of Communities and Justice [2021] NSWSC 937 Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 Bi v Attorney-General for the State of NSW [2021] NSWSC 106 CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 DB v Secretary, Department of Communities and Justice [2024] NSWSC 470 DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 Druett v Director-General of Community Services [2001] NSWCA 126 Fordyce v Leung [2022] NSWCA 55 Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley [1999] NSWCA 477 JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539 L v Minister for Families, Communities and Disability Services [2024] NSWCA 199 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Secretary of the Department of Communities and Justice v LM [2026] NSWSC 863 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 WS v Department of Communities and Justice [2026] NSWSC 337 X v Director-General of the Department of Community Services [2001] NSWCA 413 Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 Category: Principal judgment Parties: ACC (Plaintiff) Secretary, Department of Communities and Justice (Defendant) Representation: Counsel: ACC (Plaintiff, Self-Represented) E Lambert (Defendant) Solicitors: ACC (Plaintiff, Self-Represented) NSW Crown Solicitor’s Office (Defendant) File Number(s): 2026/00081909 Publication restriction: Nil JUDGMENT Background By an amended summons filed on 30 March 2026, the plaintiff seeks leave to appeal out of time under Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) from a decision of the Children ’ s Court dated 13 March 2024 (the Final Orders). She also seeks contact orders with her son. The Final Orders allocated the parental responsibility of the plaintiff ’ s child ( who I will refer to as AZ ) to the Minister of Families and Communities until the child reaches 18 years of age. The Final Orders were made pursuant to s 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ( the Care Act ). The amended summons alleges the plaintiff was denied procedural fairness in the Children ’ s Court as she was not present when the orders were made as she was overseas . On 18 March 2026, the plaintiff filed a notice of motion seeking the following orders (as drafted): Appeal for Leave Out of Time. Appeal from the whole of the decision of Final Orders 13 March 2024 in the Children ’ s Court NSW. Referral for Legal Advice and Pro Bono Assistance through NSW Supreme Court. On 25 March 2026, the defendant filed a notice of motion seeking that the summons be summarily dismissed on the basis that the proceedings are frivolous and vexatious and an abuse of process: UCPR r 13.4(1)(a) and (c). In support of her application , the plaintiff relies on her affidavit sworn 29 April 2026. Whilst th e re are several other affidavits on the file and in the Court Book provided before th e hearing, the plaintiff confirmed that this was the only affidavit she wished to rely on ( Tcpt, 30 June 2026, pp 7 ( 6 ) -8 ( 5 ) ). In support of its application, the defendant relies on: The affidavit of Angela Ghourizi affirmed 25 March 2026; and The affidavit of Georgia Lethbridge affirmed 9 June 2026. I will anonymise the plaintiff and other names to prevent identification of the child. Factual and Procedural History with respect to AZ The plaintiff is the mother of AZ who was born on 13 June 2022. AZ ’ s birth certificate records DS as the father based on information provided by the plaintiff, however, DNA testing has not been conducted to confirm this. DS is understood to reside in Europe and is not a party to these or the Children ’ s Court proceedings . On 15 June 2022, at the age of 5 days and whilst still in hospital, AZ was assumed into the care of the defendant due to concerns regarding the plaintiff ’ s mental health, transience, and homelessness. On 20 June 2022, the defendant filed an application initiating proceedings in the Children ’ s Court. Interim orders were made on 22 June 202 2 , placing AZ under the parental responsibility of the Minister. AZ has been under the parental care of the Minister since that date. AZ has been placed with their current carers continuously since their discharge from hospital. On 19 April 2023, the Children ’ s Court appointed a guardian ad litem, Rebecca Assaf, for the plaintiff. On 4 June 2023, the Children ’ s Court made a finding that AZ was in need of care and protection. On 4 July 2023, Stephen Stuart was appointed as guardian ad litem for the plaintiff after Ms Assaf withdrew. On 6 October 2023, the Department of Communities and Justice (DCJ) filed a Care Plan assessing that there was no realistic possibility of AZ being restored to their parents ’ care within a reasonable timeframe. It was proposed that AZ remain with their carers , with the possibility of guardianship or adoption being explored at a later date. The Care Plan did not recommend any contact between the plaintiff and AZ. On 22 November 2023, the Children ’ s Court made a finding that there was no realistic possibility of AZ being restored to their parents ’ care within a reasonable timeframe. On 13 March 2024, the Children ’ s Court made the Final Orders placing AZ under the parental responsibility of the Minister until the age of 18, as well as certain prohibition orders against the plaintiff. During the making of these orders, the Children ’ s Court noted evidence that Mr Stuart, as guardian ad litem for the plaintiff, agreed to the final orders being made and that he had been in contact with the plaintiff who was in Malta. On 22 April 2024, the plaintiff filed a summons in the District Court appealing the Final Orders. On 7 August 2024, this appeal was dismissed at the plaintiff ’ s request. Prior to the order dismissing the appeal being made, the plaintiff indicated that she wanted to go to the Supreme Court. She was advised by the presiding judge, Olsson SC DCJ, that the Supreme Court did not have jurisdiction to hear an appeal of the Final Orders from the Children ’ s Court, and that if she did appeal to the Supreme Court, she would most likely be unsuccessful . Nevertheless, the plaintiff persisted with her application that the appeal be dismissed. I will refer in more detail to this hearing below. On 27 June 2025, the plaintiff filed an application in the Children ’ s Court pursuant to s 90 of the Care Act seeking to vary the Final Orders . On 16 December 2025, the Children ’ s Court refused the plaintiff leave to bring the application. On 17 December 2025, the plaintiff filed another application in the Children ’ s Court seeking to vary the Final Orders. The plaintiff also filed applications for contact orders and a Children ’ s Court Clinic Assessment. I was advised by Ms Lambert on behalf of the defendant that on 22 June 2026, the solicitor for the plaintiff in those Children ’ s Court proceedings withdrew three out of five applications before the Children ’ s Court upon the plaintiff ’ s instructions, which included the s 90 application to rescind or vary the Final Orders. The only application that remains extant before the Children ’ s Court is an application for contact orders ( Tcpt, 30 June 2026, p 16(31)-(50)) . On 26 February 2026, the plaintiff filed a summons in this Court commencing these proceedings. On 30 March 2026, the plaintiff filed the amended summons seeking leave to appeal the Final Orders. Each of the appeal grounds relate to matters of procedural fairness. On 18 March 2026, the plaintiff filed a notice of motion seeking the orders outlined at [ 4 ]. On 25 March 2026, the defendant filed a notice of motion seeking that the summons be summarily dismissed pursuant to UCPR r 13.4 . Leave to Appeal Out of Time and Appeal of the Final Orders Legal Principles Where a child has been assumed into care, the Secretary must file an application for a care order in the Children ’ s Court: the Care Act , s 45. The Care Act is to be administered in accordance with the paramountcy principle, namely that in “ any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount ” : the Care Act , s 9(1). Care Applications are determined pursuant to Chapter 5 Part 2 of the Care Act . Specific provisions include the Children ’ s Court ’ s consideration of whether a child is in need of care and protection (s 72), the requirements for filing and consideration of care places (ss 78, 80), the considerations and requirements for permanency planning (ss 78A, 83, 83A, 84, 85A ), the allocation of parental responsibility (ss 79, 79AA, 79A), the making of contact orders (s 86), applications for recission or variation of care orders (s 90), and the appeal process (s 91). The Children ’ s Court may appoint a guardian ad litem for parents of a child the subject of a Care Application if the Court is of the opinion that the parent is incapable of giving proper instructions to their legal representative: the Care Act , s 101. It is not necessary for the parent to have legal representation before a guardian ad litem is appointed: CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 at [29]-[30] (Leeming JA, Kirk JA and Simpson AJA agreeing). A party who is dissatisfied with an order of the Children ’ s Court may appeal to the District Court against that order: the Care Act , s 91(1). The District Court assumes the functions and discretion of the Children ’ s Court for the purposes of the hearing and determination of the appeal, which is heard de novo . As discussed below, t here is no appeal from the decision of the D istrict Court on such an appeal. Regarding the time for appeal to the District Court from Children ’ s Court decisions, UCPR r 50.3 states: 50.3 Time for appeal (1) A summons commencing an appeal must be filed— (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subrule (1)(c) must be included in the summons commencing the appeal. The Plaintiff’s Submissions The plaintiff submits that the making of the Final Orders included the following errors: The Children ’ s Court proceeded in her absence without proper consideration of her circumstances. At the time of the making of the Final Orders, the plaintiff states that she was overseas in Malta, attempting to locate AZ ’ s birth father. Relevant evidence regarding the father was not before the Court. The Court made final orders without ensuring all necessary parties, including the father, were properly identified or involved. The decision relied on factors such as the plaintiff ’ s mental health and financial position in a manner that was unfair and/or not determinative of the legal issues. The plaintiff was denied a proper opportunity to be heard, which she states amounts to procedural fairness. The plaintiff also noted that she did not file her appeal in time as she was overseas dealing with urgent family matters, was attempting to locate the father, did not fully understand the legal process or her appeal rights, had limited financial resources and no legal representation, and acted as soon as reasonably practicable once she became aware of the need to appeal. In oral submissions, the plaintiff said that she did not consent to the guardian ad litem being appointed or to him supporting the making of the Final Orders (Tcpt, 30 June 2026, pp 2(23)-(24), 6(1)-(2)). Further, she said he did not consult with her before the Final Orders were made in March 2024 (Tcpt, 30 June 2026 p 15(26)-(41)). The Defendant’s Submissions The defendant submitted that it wa s unclear as to the source of power on which the plaintiff relie d when bringing this application – whether it be a statutory appeal pursuant to s 91 of the Care Act , or seeking a judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The defendant submits that there is no statutory basis for these proceedings to have been commenced in the Supreme Court in circumstances where s 91 of the Care Act provides that appeals from the Children ’ s Court are to be made to the District Court. Where a summons seeks leave to appeal and there is no appeal that lies to the Supreme Court or Court of Appeal from the relevant decision, it may be considered as an application for judicial review: see L v Minister for Families, Communities and Disability Services [2024] NSWCA 199 at [82] (White JA , Mitchelmore JA and Basten AJA agreeing ). The defendant refer red to WS v Department of Communities and Justice [2026] NSWSC 337 at [49] (Slattery J) . It submitted that authority held that the statutory appeal process available under s 91 of the Care Act is the appropriate forum for the hearing and determination of the substantive relief in relation to parental responsibility. The defendant submitted that if the Court considers the plaintiff ’ s summons should be treated as an application for judicial review, the plaintiff will need to establish jurisdictional error or an error of law on the face of the record: Supreme Court Act 1970 (NSW), s 69. In relation to the plaintiff ’ s grounds of appeal, being a denial of procedural fairness as the Final Orders were made in her absence, the defendant submits the following: A guardian ad litem was appointed for the plaintiff in the Children ’ s Court proceedings, and the Final Orders were made with the agreement of that guardian ad litem. Accordingly, it is inaccurate to say the Final Orders were made in the plaintiff ’ s absence as her interests were represented by her guardian ad litem, who was Mr Stuart at the time. An affidavit affirmed by Mr Stuart dated 13 March 2024, which is annexed to the affidavit of Georgia Lethbridge affirmed 9 June 2026, states that he had had correspondence with the plaintiff in Malta. Mr Stuart further stated that he had considered that the plaintiff had not undertaken any of the tasks outlined by DCJ on numerous occasions, and that the Court should proceed to make the final orders sought by DCJ, which he fully supported. Mr Stuart stated that he did not think the matter should be delayed for the putative fathers to engage, noting their lack of engagement and resistance to paternity testing. The defendant submits that the plaintiff has failed to establish, and there is, no jurisdictional error, or error of law on the face of the record. In relation to the delay of the plaintiff bringing the appeal, the defendant submits: Any appeal from the Final Orders (even if it could be brought in this Court) was required to have been commenced by 10 April 2024, and these proceedings have been commenced 21 months late: UCPR, r 50.3. Any application for judicial review was to be commenced within three months of the Final Orders: UCPR, r 59.10(1). The plaintiff ’ s explanations in respect of the delay is contradicted by her having commenced an appeal in the District Court, and two separate applications pursuant to s 90 of the Care Act in the Children ’ s Court. Determination I accept the defendant ’ s submission that this Court does not have statutory jurisdiction to determine an appeal from the Final Orders of the Children ’ s Court. The provision s of the Care Act I have referred to contemplate an appeal to the District Court. Rule 50.17 of the UCPR defines “ appeal ” in that Division to mean an appeal to the District Court from decisions of the Children ’ s Court under s 91 of the Care Act . There is no provision for an appeal to this Court from the Children ’ s Court in such matters. Additionally, a statutory appeal to the District Court such as that provided by s 91 of the Care Act is not an action from which an appeal to this Court lies under s 127 of the District Court Act 1973 (NSW) : X v Director-General of the Department of Community Services [2001] NSWCA 413 at [24] ( Beazley JA ) , following Druett v Director-General of Community Services [2001] NSWCA 126 ( Giles JA, Hodgson JA and Ipp AJA ) . In Druett v Director-General of Community Services [2001] NSWCA 126 Hodgson JA (Giles JA and Ipp AJA agreeing) said a t [12]-[13] in respect to the then equivalent provision in the Care Act : [12] There are several decisions of this Court which establish that a statutory appeal to the District Court, of the kind provided by s81 of the Children (Care and Protection) Act, is not an action from which an appeal to this Court lies pursuant to s127 of the District Court Act. Those decisions are Cook v Head [1976] 1 NSWLR 176, Hudson v South Sydney Municipal Council (1981) 46 LGRA 128, and Victims Compensation Fund Corp v District Court of New South Wales (1997) 92 ACrimR 224. [13] …It seems to me that such statutory appeals are not within any provision of the District Court Act: rather the jurisdiction to hear them is given by the Act providing for the appeal, in this case the Children (Care and Protection) Act. In any event, that view leads to the same result, that no appeal to this Court lies from the decision of the District Court in this case. Whilst this Court retains a parens patriae jurisdiction under s 247 of the Care Act , this jurisdiction does not assist the plaintiff as it does not enlarge the jurisdiction of the Court or confer a specific additional right of appeal: X v Director-General of the Department of Community Services [2001] NSWCA 413 at [ 33] ( Beazley JA ) . It is not appropriate for the parens patriae jurisdiction to be invoked, in the absence of a specific right of appeal, merely for the purpose of re-arguing matters determined in the Children ’ s Court. The proper course, as discussed above, is for a dissatisfied party to invoke the District Court ’ s appeal jurisdiction under s 91 of the Care Act . It would only be in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or to affect the decision of the Children ’ s Court: Re Victoria [2002] NSWSC 647 ; (2002) 29 Fam LR 157 at [31] (Palmer J). There is no basis to conclude that this is such a case. In so far as the plaintiff seeks to appeal the Final Orders in this Court, there is no jurisdiction to entertain that appeal. It is therefore not strictly necessary to determine whether leave should be granted to the plaintiff to bring any such appeal, including leave to appeal out of time. Had I been satisfied that this Court was able to hear an appeal, I would not have granted leave to appeal. The plaintiff was made aware by Olsson SC DCJ that the Supreme Court did not have jurisdiction to hear an appeal from the Children ’ s Court. Despite this, she insisted her appeal to that Court be dismissed so that she could commence an appeal in this Court. There is no substance to her complaints made on the hearing of this application that she did not receive a fair hearing in the District Court . A reading of the transcript (set out below) indicates she was afforded fairness in that C ourt and was warned of the consequences of having that appeal dismissed and commencing an appeal in this Court. Judicial Review The defendant ’ s counsel has very fairly referred to L v Minister for Families, Communities and Disability Services [2024] NSWCA 199 at [82] (White JA , Mitchelmore JA and Basten AJA agreeing ), noting that where a summons seeks leave to appeal, and no appeal lies to this Court or the Court of Appeal from the relevant decision, the proceedings may be considered as an application for judicial review. If this is so , the plaintiff would need to establish jurisdictional error or error of law on the face of the record . In Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 ( Bangura ) ( Basten JA , Ward JA , and McCallum JA ) , the Court stated that jurisdictional error arises where the decision-maker has misunderstood the limits of their authority, has acted outside the scope of that authority, or failed to exercise the powers conferred by that authority (se e Bangura at [13]) . A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power ( see Bangura at [13]). Further, procedural fairness requires that an adverse finding not be made in circumstances where the party adversely affected has not had an opportunity to address the basis upon which the finding is made (see Bangura at [14]) . In Secretary of the Department of Communities and Justice v LM [2026] NSWSC 863 ( LM ), Bennett J considered a judicial review of two Children ’ s Court decisions. Her Honour referred to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 ( LPDT ) ( Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ ) regarding the law concerning jurisdictional error and materiality. The High Court there stated in some cases, an error is jurisdictional irrespective of any effect the error might have had on the decision that was made. However, in most cases, an error is only jurisdictional if the error was material to the decision that was made, in that there is a realistic possibility the decision made could have been different if the error had not occurred. Their Honours noted that whether a denial of procedural fairness was a material error in a given case will depend on the nature of the error in the circumstances (see LPDT at [15]). The applicant must satisfy the court that the threshold of materiality is met, and that threshold is not demanding or onerous (see LPDT at [14]). It is also relevant to note that t he availability of alternative avenues of appeal provides the Court a reason to refuse to grant the relief on discretionary grounds (see Fordyce v Leung [2022] NSWCA 55 a t [105] (White JA), [112] (Beech-Jones JA) ) . In relation to the time for commencing proceedings for judicial review , UCPR r 59.10 states: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following— (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required. In seeking an extension of time, the four considerations listed in r 59.10(3) of the UCPR are merely inclusive, rather than prescriptively exhaustive: see Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA, Barrett JA and Emmett JA agreeing). Other permissibly relevant considerations include the length of the delay, the reason for the delay, and apparent substance of the applicant ’ s claim (at least in relation to its apparent arguability): see Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA, Hodgson JA and Ipp JA agreeing). When considering whether the plaintiff should be granted leave out of time in relation to an application for judicial review, noting the provisions of UCPR r 59.10(3) outlined at [5 2 ] above, I must take account of the following: The plaintiff is AZ ’ s mother, and has an undoubted interest in challenging the Final Orders; The people who may be prejudiced by an extension of time if it were to be granted include AZ, and AZ ’ s foster carers. The grant of prerogative relief (that is, relief by way of judicial review) is discretionary , and delay in seeking such relief is a relevant matter , and potentially a highly relevant matter, in deciding whether such relief should be granted or refused. Having regard to the need for stability and certainty in AZ ’ s placement with the foster carers whom they have been placed with since 22 June 2022, the delay in seeking to set aside the Final Orders is an important discretionary consideration (see DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 at [30] (White JA, Beazley P and Sackville AJA agreeing) ) . The plaintiff deposes that the delay was caused by her circumstances, being that she was overseas dealing with urgent family matters, was attempting to locate the father, did not fully understand her appeal rights, and had limited financial resources and no legal representation. Whilst I acknowledge that she was overseas, as the defendant submitted , the plaintiff was able to, and did, commence appeals in the District Court, and two s 90 applications in the Children ’ s Court, after the Final Orders were made. The delay of approximately 21 months is not an insignificant period of time. Summary Dismissal As I have noted, t he defendant seeks summary dismissal of the summons pursuant to UCPR r 13.4. It is asserted that the proceedings are bound to fail and are frivolous and vexatious. As it will be necessary to survey the releva nt facts of the matter and the relief sought in considering both the question of whether the plaintiff is entitled to judicial review and whether summary relief should be granted, I will first set out some principles for summary relief, including where a plaintiff seeks to re-agitate matters dealt with in the Children ’ s Court. Legal Principles UCPR r 13.4 states : 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings— (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). The exercise of powers to summarily dismiss proceedings must be exercised with caution: Spencer v Commonwealth of Australia (2010) 241 CLR 118 ; [2010] HCA 28 at [24] ( French CJ and Gummow J ) . Kirk JA in Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 said at [86]: The power of summary dismissal is, of course, to be exercised sparingly and with care. It requires “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]. That being said, “[a]rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69. In the context of proceedings commenced in the Supreme Court in the face of ongoing care proceedings in the Children ’ s Court, in A v Secretary, Department of Communities and Justice [2021] NSWSC 937, Garling J stated at [61]: Rule 13.4 of the UCPR exists to deal with proceedings of this kind where, upon consideration, it can be seen that a plaintiff brings the proceedings to relitigate past decisions, does not avail themselves of the appropriate avenue to seek leave to appeal, and merely seeks the opportunity of a platform to air their particular idiosyncratic views, and disenchantment with the procedures of another court. The proceedings for this reason must be dismissed. In the matter of Bi v Attorney-General for the State of NSW [2021] NSWSC 106, the plaintiff sought declarations in relation to the interpretation of the Care Act . In summarily dismissing the proceedings, Harrison J stated at [10]: [I]t is not the role of this Court to determine and especially not to re-determine in a factual vacuum arguments about the proper construction of the Act, or to evaluate unproven allegations concerning alleged improper practices or approaches in the Children’s Court. In DB v Secretary, Department of Communities and Justice [2024] NSWSC 470, Lindsay J stated at [52]: With editorial adaptation, the judgment of Sackar J in Harris v Department of Communities and Justice [2021] NSWSC 519 at [20] and [22] (approved by McCallum JA in RH v Secretary, Department of Communities and Justice [2021] NSWCA 101) provides a convenient exposition of the field of operation of UCPR rule 13.4 in a case factually different from the present one but close enough to illustrate underlying principles: [20] What is principally at stake I presume, and this is the plaintiff’s concern, is the welfare of his children. Ultimately, both here and in the Children’s Court, their interest will be of paramount concern as indeed they should be. If care arrangements, different from those which are currently in place, are to be made a specialist court in my view is the best vehicle or the best venue in which those matters can be debated and decided, especially given the fact that an appeal would be open to the plaintiff to the District Court from [the Children’s Court]. The appeal pursuant to section 91(2) [of the Care Act ] would be by way of a new hearing and fresh evidence, or any additional evidence could be called if that was thought relevant. … [22] Whether proceedings are vexatious or abuse of process does not go necessarily to the motive of the person who is seeking to bring the proceedings. Merely the duplication of proceedings, which are concurrent, is enough where the same causes of action are sought to be agitated in two places at once. There is no reason why, if impropriety is going to be asserted that it cannot be asserted in the Children's Court and reviewed, if needs be, by an experience[d] District Court judge in due course on fresh evidence for example, if appropriate. Evidence of the Plaintiff At the hearing of this matter , the plaintiff indicated that she relied on her affidavit sworn on 29 April 2026 (filed 6 M ay 2026). There were other affidavits in the Court Book, but as I have said above , she identified this affidavit as the extent of the material she sought to rely on . In this affidavit , the plaintiff notes that the Final Orders were made in her absence. She was overseas in Malta “ attempting to locate the child ’ s father for the purpose of establishment paternity and updating birth records ” . At [4] of the affidavit, beneath the heading “ G rounds -Error of Law / Procedural Unfairness ” she deposes: I sat [sic] the decision of 13 March 2024 involved errors including: A. The court proceeded in my absence without proper consideration of my circumstances, B. Relevant evidence regarding the father was not before the Court, C. The Court made final orders without ensuring all necessary parties ( including the father ) were properly identified or involved , D. The decision relied on factors such as my mental health and financial position in a manner that was unfair and / or not determinative of the legal issues. E. I was denied a proper opportunity to be heard, which amounts to procedural unfairness. The affidavit also makes assertions about the importance of AZ ’ s father in their life. I pause to note that if the father is said to be DS, he has not been confirmed as the father. DS has not taken any steps to be involved in any of the Children ’ s Court, District Court or these proceedings. At [6] of her affidavit, the plaintiff says (rather by way of submission than evidence) that her appeal has merit because key evidence is not considered, the decision was made in her absence , and there are serious questions about whether proper legal process was followed. Just what questions arise from the failure to follow legal process , and the processes allegedly not followed, are not identified. The plaintiff ’ s affidavit contains a significant number of annexures including information confirming that she was in Malta at the time of the making of the Final Orders, communications attempting to locate the supposed father of AZ, documents going to her circumstances at the time of the making of those orders , and the orders themselves. Evidence of Defendant T he defendant read t w o affidavits , as identified above. These affidavits contained matters going to the pas t order s made with respect to AZ (and relating to the plaintiff) in the Children ’ s Court and District Court proceedings . Included in the exhibits to the affidavits are the transcripts of various court hearings. The day that the Final Orders were made , the transcript of that hearing before Children ’ s Magistrate Love (at CB 422) includes the following reasons given by his Honour: T hese proceedings have been on foot since 22 June 2022. There has been an ongoing issue with the mental health of the mother and a guardian ad litem has been appointed and has been of great assistance to the Court. I have an affidavit from [the guardian ad litem] dated today and he has had contact apparently from the mother who says she is in Malta and there has been no further contact. The mother has not undertaken any of the tasks outlined in the summary of proposed plan or other documentation. We have had psychiatric evidence before the Court… The GAL’s position… is that the matter should not be delayed any further in relation to the putative fathers. The orders sought by the Secretary are also supported by the independent legal representative. I have previously made a finding there is no realistic possibility of restoration to the mother in this matter and I confirm that finding today … There has been some contact recently with the Court from two gentlemen, one who says he is Macedonia and one is in Malta. There has been no appearance of those individuals during the court proceedings. The Department has made every effort and the court staff here at Campbelltown have made every effort to assist those individuals with dialling in or being part of these proceedings. I note that there is no evidence before the Court in the form of DNA testing to indicate who [AZ’s] father is. If an individual comes forward in the future with evidence of that kind they can make any relevant application to the Court. Given that the matter has been on foot since 22 June 2022 it is appropriate to proceed to final orders today… [His Honour went on to make the Final Orders]. The defendant ’ s material also includes a copy of the summons filed by the plaintiff commencing the appeal in the District Court. That summons sought to appeal the whole of the Final Orders. The transcript of the D istrict C ourt proceedings on 7 August 2024 before Olsson SC DCJ is included in the materials. Before the C ourt that day was a notice of m otion seeking the appointment of a guardian ad litem. The plaintiff appeared by A VL . She asked for an adjournment as she said she was not ready with her evidence. She said if an adjournment was not possible, she would seek to dismiss the matter and go to the Supreme Court. The plaintiff opposed the appointment of a guardian ad litem . She said that she did not want a guardian nor need one . Her Honour indicated that she was going to proceed with the motion as she was concerned that there needed to be somebody who could speak for the plaintiff. The plaintiff reiterated that she wanted to dismiss the proceedings. Her Honour referred to a report of a Dr Cidoni which indicated that the plaintiff was mentally unwell and incapable of conducting the proceedings . S he explained to the plaintiff that the appointment of a guardian ad litem is when one of the parents is incapable of giving proper instructions. She told plaintiff that the functions of a guardian were to safeguard and represent her interests and instruct legal representatives. As to the consequences of her dismissing the summons her Honour said ( Tcpt, 7 August 2024, p 10(25)-(37)) : … But I formed a view based on the materials, including Dr Cidoni’s report, that you are… m entally unwell and incapable of conducting the proceedings. Therefore, you have two choices. Either I appoint the guardian ad litem or I dismiss the summons. But if I dismiss the summons, you won’t be able to go anywhere else. If I dismiss it because you asked me to dismiss it, you won’t be able to go up to the Supreme Court, for example. Do you understand that? The following exchange then took place ( Tcpt, 7 August 2024, p 11(4)-(40) ) : HER HONOUR: [ACC] , I’m very concerned that you don’t understand the consequences… PLAINTIFF: I do understand. I know what I want and I’m telling you I don’t need it and I would like to dismiss.… HER HONOUR: I’ll explain it as clearly as I can… if you withdraw these proceedings or asked me to dismiss them, that is the end of your appeal here - certainly, in this court - and I doubt very much that you would be able to - the Supreme Court would entertain any appeal or application you made to it with respect to these proceedings. After again informing the plaintiff that she had formed the view that the plaintiff was not mentally capable of instructing lawyers , the following exchange took place ( Tcpt, 7 August 2024, p 12(18)-(36)) : HER HONOUR: [ACC], you can either withdraw the proceedings and I will dismiss them here and now or I will appoint a guardian. So what’s your choice? PLAINTIFF: Can I still go to the Supreme Court but it’s up to them if they want to hear it? HER HONOUR No. You have no legal right to go to the Supreme Court. I suppose it doesn’t -- PLAINTIFF: At the end of the day, it’s up to them. HER HONOUR: No, yes, it is. Of course it is. It is. But obviously the Supreme Court can make its own decision and I can’t stop you from trying to file an application there. But what I’m saying to you is that it won’t succeed. PLAINTIFF: I hear you, ma’am. Just dismiss them. I’ll go Supreme Court. HER HONOUR: Al l right then. I dismiss the summons. The defendant ’ s materials also include a transcript of proceedings in the Children ’ s Court on 16 December 2025 , when an application by the plaintiff for leave to proceed under s 90 of the Care Act asserting that there had been a significant change in circumstances warranting variation of the Final Orders was refused . It is apparent that the plaintiff made submissions to the presiding judge which were properly taken into account in her reasons. The Plaintiff’s Submissions The plaintiff filed written submissions on 16 June 2026 opposing the defendant ’ s notice of motion seeking summary dismissal of the proceedings. She submits the following: The power of summary dismissal is only to be exercised where it is clear that the proceedings cannot succeed, and the defendant has not demonstrated this. The plaintiff was denied procedural fairness in connection with the making of the final orders, and those matters raise questions of fact and law which could be determined by a full hearing. The plaintiff did not instruct the guardian ad litem to consent to the Final Orders, and she was not afforded a genuine opportunity to participate in the proceedings before the Final Orders were made. In relation to the appeal, she had commenced in the District Court pursuant to s 91, this was withdrawn as she believed she had not been afforded procedural fairness and was unable to properly present her case. That she will suffer significant prejudice if her application is dismissed, including permanent loss of parental rights, and that there is minimal prejudice to the defendant if the matter is heard on its merits. Given the significance of the Final Orders and the allegations of procedural unfairness, the interests of justice favour allowing the proceedings to continue rather than being summarily dismissed. The Defendant’s Submissions The defendant submits that there is no statutory basis for these proceedings to have been commenced in the Supreme Court, and even if the plaintiff was granted leave to commence the proceedings, there is no means by which jurisdictional error or an error of law on the face of the record could be established . It submitted that i t further weighs against the grant of relief being sought by the plaintiff, on a claim of a denial of procedural fairness, that she has other statutory paths to rescind or vary the Final Orders: Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley [1999] NSWCA 477 at [164] ( Fitzgerald JA ). Ultimately, the defendant submits that running these proceedings to a final hearing would not be in the best interests of the child, whose entire life has been subject to litigation and ongoing disputes. While it may be unusual that an application for judicial review be determined by way of summary dismissal, it remains available in the Court ’ s supervisory jurisdiction in an appropriate case: JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539 at [49] (Campbell J). Determination There is no jurisdictional error or error on the face of the record In LM , Bennett J found that there was a material denial of procedural fairness as the Secretary did not have the opportunity to be heard , and that if the Secretary had been afforded a fair opportunity to respond to the proposed decision, there was a realistic possibility that the decision made could have been different (see LM at [109]) . That is not this case. I am not satisfied on the evidence before me that the plaintiff did not have the opportunity to be heard in the Children ’ s Court at the time of the making of the Final Orders. I do not consider that the plaintiff has established that the Final Orders were made in her absence, or that she had no opportunity to participate in the proceedings. A guardian ad litem had been appointed to represent her interests, and there has been no evidence put by the plaintiff to support any wrongdoing of the guardian. I have referred to the evidence led by the defendant that the guardian ad litem said he had corresponded with the plaintiff about the proceedings and that he agreed the Final Orders should be made. The guardian ad litem was properly appointed and there is no basis to find on the evidence that he was not acting in the plaintiff ’ s interests at the time of the hearing on 1 3 March 2024. It is apparent to me that the plaintiff does not understand, of simply fails to accept, that the guardian was speaking on her behalf for he r benefit, not to her detriment. In any event, I am not satisfied that if the plaintiff had been present there was a realistic possibility that the Final Orders would have been different. The chronology of orders made in the Children ’ s Court set out above include orders that there was no realistic possibility of AZ being returned to his parent ’ s care within a reasonable time. The evidence at the time of the making of the Final Orders included evidence as to the plaintiff ’ s continued mental health issues . The very fact of the appointment of the guardian reflected the finding that she was not able to speak for herself at the Children ’ s Court hearings. I am not satisfied that the making of the Final Orders in circumstances where DS had not been heard from gives rise to any procedural unfairness. The extracts I have referred to indicate that steps were taken to engage with him, but he failed to appear in any of the proceedings. This, of course, assum ing he is the father of AZ. In all of the circumstances, I am not satisfied that the plaintiff has established that she was denied procedural fairness. In LM , Bennett J considered that the availability of a right of appeal under s 91 of the Care Act meant that there may be a discretionary basis for refusing to grant relief in relation to the plaintiff ’ s application for judicial review. Her Honour ultimately decided that it would be inappropriate to refuse the relief solely on the discretionary basis referable to the fact that the plaintiff can seek an appeal somewhere else (see LM at [141]-[142]). Here, the plaintiff can still seek relief under s 90 of the Care Act to vary or rescind the Final Orders if she can satisfy the conditions of that section . She has availed herself of that right on several occasions and can, if appropriate, do so again. I consider this is an additional reason why relief by way of judicial review should be refused. Taking into account the matters in [54] above, I do not consider that there is any utility in extending the time for the plaintiff to apply for judicial review of the Final Orders. I would refuse the plaintiff leave to seek judicial review of the Final Orders out of time. Even if I did extend the time for her to seek judicial review, I consider that there is no basis for relief established and t he application for j udicial r eview would be refused . Summary Relief I have also concluded that t he defendant ’ s application for summary dismissal should be granted. I have accepted the defendant ’ s submission that there is no statutory basis for the plaintiff to have commenced proceedings in the nature of an appeal in this Court. Additionally, nothing advanced by the plaintiff demonstrates any jurisdictional error or an error of law on the face of the record to support a judicial review of the Final Orders . I consider that the proceedings are bound to fail and are thus frivolous and vexatious. I accept that an order for summary dismissal should not lightly be made. I do not consider that there is any merit in any of the plaintiff ’ s grounds. She has put before the Court a significant amount of material. There can be no doubt of her desire to have some involvement in AZ ’ s life. Her motivation may be well intentioned. But that is not the issue. She is seeking to re-agitate matters that were determined in the Children ’ s Court, and she has not demonstrated any error in the approach of the Court, including with respect to affording her (through her guardian ad litem) procedural fairness. She says she does not want AZ to be adopted , but she will be able to have voice her opposition to that should an application for adoption proceed. The plaintiff had the opportunity to proceed with an appeal in the District Court proceedings; however , she elected to have that summons dismissed . As I have state d in [21], the plaintiff also instructed her solicitor in the current Children ’ s Court proceedings to withdraw three out of five applications (which included a second s 90 application) on 22 June 2026. As noted by Slattery J in WS v Department of Communities and Justice [2026] NSWSC 337 at [49], numerous authorities have repeatedly stated that the statutory merits appeal which is available under s 91 of the Care Act is the appropriate forum for the hearing of matters such as this. I consider that this is an appropriate case whether the discretion to dismiss the proceedings should be exercised. I again observe that dismissing these proceedings does not affect the plaintiff ’ s rights to seek orders in the Children ’ s Court under the Care Act in the future, including seeking contact orders pursuant to s 86 , or to vary or rescind previous orders if there has been a significant change in circumstances under s 90 . In all of the circumstances , I regard the proceedings as frivolous and vexatious and an abuse of process . They should be dismissed. Having reached this conclusion, there is no utility in making a referral of the plaintiff to the pro bono panel pursuant to UCPR r 7.36 . Costs The defendant ’ s motion does not include a prayer for relief for costs. No submission was m a de in the written or oral submissions by counsel for the defendant that, if successful in having the proceedings dismissed, the plaintiff should bear the cost s . In the circumstances, there will be no order as to costs , with the intent that each party is to bear their own costs. ORDERS For the above reasons I order: The Plaintiff ’ s Notice of Motion filed 18 March 2026 is dismissed; The Amended Summons filed 30 March 2026 is dismissed; and The re is no order as to costs . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2026