Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: GKD v Director-General, Attorney General's Department; GKD v Director-General, Department of Family and Community Services [2012] NSWCA 219
• Hearing dates: 13 July 2012
• Decision date: 13 July 2012
• Before: Campbell JA at [1], [13]; Meagher JA at [12], [17]

Decision

(1) Strike out as incompetent the notice of appeal filed 14 February 2012.

(2) Dismiss the application for leave to appeal filed 24 April 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADOPTION - adoption with consent of adoptee - appeal against - appeal against adoption of teenage daughter by foster family brought by her natural father - no appeal as of right against an adoption order - leave must be sought; APPEAL - leave to appeal - where no error of primary judge identified in documents or submissions - leave refused
• Legislation Cited: Supreme Court Act 1970
• Cases Cited: Director General, Department of Family and Community Services v GKD [2012] NSWSC 14; Re DG and the Adoption Act (2007) 244 ALR 195
• Category: Principal judgment
• Parties: GKD (Applicant in both matters); Director-General, Attorney General's Department (Respondent in 2012/130120); Director-General, Department of Family and Community Services (Respondent in 2012/48605)
• Representation: Counsel: Self-represented (Applicant); M Neville (Respondents); Solicitors: Self-represented (Applicant); Crown Solicitor's Office (Respondents)
• File Number(s): 2012/130120; 2012/48605

Decision under appeal

• Jurisdiction: 9111
• Citation: Director-General, Department of Family & Community Services v GKD [2012] NSWSC 14; Director-General Department of Family and Community Services v GKD [2011] NSWSC 1637
• Date of Decision: 2012-01-16 00:00:00
• Before: Brereton J
• File Number(s): A143/2011

Judgment

1 CAMPBELL JA: On 16 January 2012, Brereton J made an order for the adoption of a child known in the proceedings as N: Director General, Department of Family and Community Services v GKD [2012] NSWSC 14. An order was made that the forenames of the child continue to be the same forenames as she had always had but for her surname to become that of the adoptive parents.

2 At the time of those orders, N's age was seventeen years and eight months. The adoption order was in favour of people with whom the child had resided for the previous twelve years. N consented to the orders that were made. The orders were made even though her natural father, GKD, opposed the making of the orders. At the time of the hearing, N had not had contact with GKD for ten years.

3 On 14 February 2012, GKD filed a notice of appeal that, from its identification of the file number and the year of the judgment appealed against, can be seen to be an appeal against the decision of Brereton J that I earlier mentioned. The Director General of the Department of Family and Community Services has filed a notice of motion seeking to have that appeal dismissed as incompetent.

4 Section 101(2)(r) of the Supreme Court Act 1970 provides:

"An appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal from:

...

(r) a final judgment or order in proceedings of the Court otherwise than an appeal:

(i) that involves a matter at issue amounting to or of the value of $100,000 or more or

(ii) that involves (directly or indirectly) any claim demand or question to or to respecting any property or civil right amounting to or of the value of $100,000 or more."

5 Contrary to the requirement of Uniform Civil Procedures Rules 51.22, no affidavit has been filed showing why the limitation that s 102(2)(r) imposes has been overcome in the present case. With a litigant in person, the court might sometimes take steps to permit such a procedural deficiency to be overcome. However, in the present case, it would be futile to do so, because the decision below concerned the adoption of a child. The rights at issue in such litigation are in principle incapable of being valued in money and so it would be impossible for any such affidavit to be filed. The consequence of this is that any appeal against an adoption order can only be brought by leave: Re DG and the Adoption Act (2007) 244 ALR 195 at [18]-[22]. Therefore the appeal must be dismissed as incompetent.

6 GKD has also filed on 24 April 2012, a summons seeking leave to appeal from the decision of Brereton J. Certain of the parties that were named in that application for leave to appeal were removed by a court order made on 30 April 2012, leaving the Director General of Community Services, as apparently the relevant officer has become, as the sole respondent. The summons seeking leave to appeal was filed out of time but the Department has taken no point concerning that and its submissions dealt solely with the merits of the application.

7 The summons seeking leave to appeal, and the summary of argument filed in support, are in many places rambling and confused to the point of being unintelligible. Other parts of them are irrelevant. Some parts of them talk as though the application related to an appeal against a criminal sentence. Some parts of them complain about matters that appear to have happened through the actions of government officials and in court decisions in the 1990s. Some of those complaints relate to how the welfare of a different child of GKD to N was dealt with by the courts and government agencies. Some parts of them talk about the functions and purposes of the Family Court of Australia and whether witness immunity is available in disciplinary proceedings before a disciplinary board or tribunal "representing" the Family Court. Other parts talk about that standard by which one assesses whether words are insulting. Some parts of the document set out in detail what read like submissions that would be made on an appeal to the Full Family Court concerning a custody order that had been made in the Family Court. These are examples of the topics that the documents cover and are by no means an exhaustive list.

8 The applicant made some additional oral submissions today. They included a submission that he did not have the blood contaminations that the Army was concerned about. He submitted that he had no idea that "we" were "placed there for insurance purposes". He submitted that if "we", had a valid lease he would like to decide "who comes under the property and who does not". He submitted that the dispute was publicly funded, and that that was a matter of concern to him. He pointed out that in some previous litigation, the District Court had decided to consider whether certiorari was available. He also submitted that at a previous time, the New South Wales Labor Party was establishing itself and needed the money, and that it had more money than he had. These are examples of the topics that were covered in the oral submissions and, again, are by no means an exhaustive list.

9 What the documents that were filed do not do is identify any alleged error in the judgment of Brereton J. There were some oral submissions today that expanded upon the written submissions. They included a submission that GKD did not believe that Brereton J was a "guardian", a submission that he wanted to be consulted and be relevant to N, and a submission that the whole case - which I took to be the case relating to the circumstances in which N ceased to be under his care - was established by consent because his wife gave consent to the removal of the children. He also submitted that he had never been represented and that that was a worry. The oral submissions do not identify any alleged error in the judgment either.

10 While it is by no means the only factor that enters into a decision whether to grant leave to appeal, an essential prerequisite of a grant of leave to appeal is that the Court be persuaded that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. The submissions that have been made both in writing and orally, do not make that out and for that reason the application for leave to appeal should be dismissed.

11 The orders that I therefore propose are to strike out as incompetent the notice of appeal filed 14 February 2012 and to dismiss the application for leave to appeal filed 24 April 2012.

12 MEAGHER JA: For the reasons which Campbell JA has given, I agree with the orders that he proposes.

13 CAMPBELL JA: Those are the orders of the Court.

[further argument]

14 CAMPBELL JA: At the conclusion of the judgment concerning the substance of the matter, Ms Neville, appearing for the Director General, made no application that the Director General receive any costs. However GKD made an application that he be paid some costs. He put that application on the basis that he was a concerned father who had been summoned to attend the Children's Court in 1998 and should have been paid costs for his time and that he didn't ask to have his children removed from him.

15 Any order that the Court makes for costs is always an order that relates to the costs that are involved in dealing with the application that the Court is in the process of considering. Here, those applications were the notice of motion seeking to strike out the notice of appeal filed as of right and the application for leave to appeal.

16 GKD has been totally unsuccessful concerning those applications. In those circumstances, there is no occasion to make an order for costs in his favour.

17 MEAGHER JA: I agree.

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Decision last updated: 24 July 2012