Agambar & Agambar

[2021] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

Agambar & Agambar [2021] FCCA 1113

File number(s):

BRC 8532 of 2019

Judgment of:

JUDGE VASTA

Date of judgment:

4 May 2021

Catchwords:

FAMILY LAW –  where Final Consent Orders were made in 2019 - where an issue arose in the exercise of parental responsibility upon which the parents could not agree and thus requires judicial determination– where a child has launched action for compensation against his mother from a motor vehicle accident that is subject to a compulsory third party claim  - where the child sustained serious and ongoing medical issues – where the mother is a defendant – where the mother is precluded from exercising equal parental responsibility – where it is not in the best interest of the child for the father to exercise default sole parental responsibility – whether an independent person should be in charge of the management of the claim – where a litigation guardian cannot be involved in preliminary matters prior to litigation officially commencing - whether it is appropriate to grant the independent person sole parental responsibility for this very narrow aspect

Legislation:

 Family Law Act 1975 (Cth) ss 64C, 65P

Motor Accident Insurance Act1994 s 52

Uniform Civil Procedures Rules 1999 r 94

Number of paragraphs:

55

Date of last submission/s:

4 May 2021

Date of hearing:

4 May 2021

Place:

Brisbane

Counsel for the Applicant:

Ms Firth

Counsel for the Respondent:

Mr Arnold

ORDERS

BRC 8532 of 2019

BETWEEN:

MS AGAMBAR

Applicant

AND:

MR AGAMBAR

Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS:

1.That Mr B be joined to these proceedings.

2.That pursuant to section 64C of the Family Law Act 1975, Mr B has sole parental responsibility in relation to commencing and managing personal injury claims on behalf of X born in 2008 and Y born in 2013 ("the children"), as a result of the motor vehicle accident which occurred on 24 March 2019, including the following decisions:

(a)Authority to engage Lawyers on behalf of the children to act in all aspects of the matter and provide continuing instructions on behalf of the children in the place of the parents;

(b)Authority to sign all documents and directions and authorities including authorities to medical practitioners that would otherwise be signed jointly by the parents;

(c)Authority to act as the litigation guardian on behalf of the children in any proceedings commenced in a State Court;

(d)Authority to undertake necessary pre-action procedures on behalf of the children, prior to filing the claims;

(e)Authority to make decisions on behalf of the children in relation to the personal injury claims, such as making proposals or accepting settlement offers;

3.That in relation to his exercise of sole parental responsibility, Mr B will:

(a)Advise the parents of any decision to be made in exercise of his sole parental responsibility in advance of the decision being made;

(b)Consider the parents' views in relation to the decision to be made;

(c)Advise the parents of the decision ultimately made as soon as practicable and within seven (7) days of making the decision.

IT IS NOTED:

A.That the Court cannot make an Order about the payment of Mr B's costs incurred.

B. That at settlement of the claim, Mr B will present to the Trustee of The Public Trustee of Queensland and/or the trustee of The Perpetual Trustee a schedule of his fees and the Trustee will pay Mr B's fees if the trustee thinks it is proper for Mr B's fees to be paid.

C. That fees incurred by Mr B as a result of Mr B's exercise of parental responsibility, are considered by the Court to be reasonable fees incurred on behalf of the children, for the children's benefit.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Agambar & Agambar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE VASTA

1. On 19 December 2019 the Mother, Mr Agambar, and the Father, Mr Agambar, consented to the making final parenting orders by His Honour Judge Middleton.  Those Orders were for the parties to have equal shared parental responsibility. 

2. The parties have not been able to agree upon an aspect of their parental responsibility.  The parties engaged in mediation, which was unsuccessful. The mother brought this application to the Court and the Court is hearing it as a discrete hearing.

3. The background to the matter is that the Father was born in 1976 and the Mother was born in 1978.  The parties commenced their relationship in 2004 and were cohabitating from 2005 onwards in City C.  In 2006 the parties married.

4. The parties had three children, X was born in 2008, Z was born in 2010 and Y was born in 2013.  The parties separated in February 2019. The children lived with the Mother. 

5. About six weeks after separation the Mother was in her motor vehicle with the three children when a terrible motor vehicle accident occurred.

6. In short, on 24 March 2019, the Mother was driving west along D Street, coming up to the intersection at E Street.  E Street is part of the highway.  The Mother was supposed to give way at this intersection; however, it seemed that she proceeded straight through this intersection to continue west along F Street.  Another vehicle was travelling along the highway at about the speed limit of 100 kilometres an hour.  The two vehicles collided and the Mother and X suffered minor injuries.

7. Tragically, Z was killed in this accident and Y suffered serious injuries including an acquired brain injury.  Y was transported to Brisbane. His mother travelled to Brisbane with him.  X also travelled with the Mother and they lived at Ronald McDonald House until Y was discharged.

8. Y was hospitalised from 24 March 2019 to 17 May 2019 and was discharged from daily rehabilitation on 7 June 2019.  The Mother, Y and X then moved into the maternal grandparent's house at Suburb G in Brisbane.  The Mother has been involved in caring for Y since that time and has attended all of his appointments with his treating medical and rehabilitation practitioners.

9. The Mother now needed to stay in Brisbane because of Y's medical needs.  She filed an application in this Court for parenting orders in July 2019.  The material was served on the Father on 26 July 2019.  His reaction was to publish a photo of the correspondence and court documents received from the mother's lawyer on Facebook.  He then commented that the application was “something to wipe my ass with”.

10. Notwithstanding this puerile behaviour, the Father was able to negotiate with the mother so that the orders that I have mentioned were consented to on 19 December 2019.

11. There is no doubt that Y will need ongoing care and that this care will cost quite a deal of money.  For Y to be able to receive such money he must, in effect, sue his Mother.  This is not an unknown occurrence because children have had no reticence in suing their parents for tortious claims of negligence since compulsory third-party insurance took the emotion out of making such claims.

12. From what has been said to me from the Bar table today, it would seem that the current regime is now fairly uncontroversial.  If a child has to sue a parent, a litigation guardian is appointed and this is often the other parent.  The reason for this is fairly obvious.  Notwithstanding that the Mother is insured and that the insurance company will be running the litigation with minimal input from her, the Mother is still a litigant in the litigation that would be launched by the child.

13. As Counsel for the Father correctly points out, s.52(1) of the Motor Accident Insurance Act1994 (Qld) (“MAIA”) states:

    If an action is brought in a court for damages for personal injuries arising out of a motor vehicle accident, the action must be brought against the insured person and the insurer as joint defendants. 

14. Because the Mother is the other litigant in such a proceeding, she is therefore barred from being the litigation guardian, pursuant to r.94 of the Uniform Civil Procedures Rules 1999 (“UCPR”).

15. Under the MAIA, no proceedings can be commenced for damages until a series of pre-court procedures are complete. All of these pre-court procedures are designed to enable settlement of the prospective claims without the assistance of the adversarial court process. A claim must be made within a certain period of time. The Father has, to his great credit, made claims for both X and Y and has done so within the statutory period.

16. There must now be a series of pre-action procedures.  If those procedures do end up leading to both parties coming to an agreement, such a settlement must still be sanctioned by the Court.  If those procedures do not end up leading to an agreement, then litigation will ensue and the litigation guardian will come into play for the children.

17. Because of the position the Mother is in, she cannot play any part in guiding the manner in which the claims of the children will be presented during the pre-action procedures. 

18. This is what has led to the present matter before the Court.  In the exercise of the equal shared parental responsibility the parents cannot agree upon a litigation guardian.  But more importantly, the Mother is precluded from exercising her equal shared parental responsibility in regards to the pre-action procedures.

19. The Mother, quite frankly, does not trust the Father to act in the best interests of the children because she claims that he does not understand what has occurred to the children, and how their medical issues impact their daily living. The Mother is asking the Court to give a third person sole parental responsibility for a very narrow aspect; that is, to direct the claims that Y and X have under the MAIA.

20. To say that there is an undercurrent of mistrust between the Mother and the Father is an understatement.  The Mother points to the Father launching a public plea for donations in the wake of the tragic accident. A flier was distributed in the City C area for a "Purple Charity Event".  The flier clearly stated that:

    The Agambar family were deeply impacted as the result of a car accident on E Street on Sunday morning.  Monies raised will go towards ongoing medical costs for little Y.

21. The mother has calculated that there was approximately $38,000 donated to this cause.  None of that money was used for any of Y's medical expenses.

22. Because Y was going to be spending time with his Father in City C, a building audit was completed by an occupational therapist.  The report made a number of recommendations so that the house could be modified for Y's needs. Those modifications did not take place.  It would seem, from what has been said to me from the Bar table by the Counsel for the Father, that the donated money was actually used to prop up the Father's business.

23. On 16 May 2020, the Father wrote an email to the Mother.  In that email he told the Mother that he could not trust her and that he did not want to communicate with her any longer, other than in accordance with the Orders made by Judge Middleton.  In written submissions, the Mother said to me that the Father wanted the Mother to engage a solicitor for the purpose of communication other than in accordance with the Orders. He said that he could see no good reason as to why the Mother should not incur the cost and expense of engaging a solicitor to act on her behalf so as that solicitor would deal with him, the Father directly, and the Mother would not.

24. On 13 August 2020, the Father wrote another email to the Mother.  In that email, relevantly, the Father says:

    …I will also be readdressing the court orders in concern to my time with the kids, after they’re [sic] time up here on the holidays its [sic] proven that all the carry on about how much help Y needs is not warranted.  Your [sic] using that as a trump card the fact that he needs so much help, and don't forget why he needs so much help…

25. On 4 December 2020, the Father sent the Mother an email which discussed flight arrangements for the children.  He said that:

    … I have been waiting on Y's therapists to send confirmation that he can't fly as an unaccompanied minor, i [sic] read Ms H’s report and think that you' are all underestimating him if you think he can't last an hour on a flight without fatiguing.  to be honest with you i [sic] think it's pretty sad that as his mother you doubt him that much.  and it seems to me that from reading his last hospital report that suggest that  he is going leaps and bopnds [sic] from where he was and being encouraged to do more stuff on his own including being more independent that he for some reason is being held back from his full potential.  I don't really know why all of these people that are supposed to be helping him get better are holding him back.

26. On that evidence it is easy to see why the Mother does not trust the Father and why it is that she believes that the Father will not be able to act in the best interests of the children, mainly because he does not understand the extent of their deficits.  It is clear that in all of those communications, the father’s priority is instituting a regime that would make it easier for him, or would cause him to expend less money, on his spending time with Y.

27. However, it is a big leap to go from a Court ascertaining the attitude and motivation of one parent to a point where the Court should be contemplating handing sole parental responsibility - albeit for one very narrow issue - to a stranger. 

28. It has been submitted to me that sole parental responsibility for this one aspect is needed because this issue cannot be resolved simply by appointing an independent litigation guardian. This is because the litigation guardian cannot be involved in those pre-action procedures on behalf of children.

29. Whilst it may be in the child's best interests that someone other than the Father be the litigation guardian, this may not protect the best interests of the children because, as the MAIA legislation envisages, the pre-action procedures will hopefully avoid the need for litigation and, therefore, there would not be any need for a litigation guardian to be appointed.

30. The issue that the Mother has with regard to the Father, in effect, now exercising sole parental responsibility because of her statutory disbarment from exercising joint parental responsibility in relation to this claim, are also apposite to the pre-action procedures as they are to the litigation itself. 

31. The Father, through his Counsel, points to s.65P of the Family Law Act 1975 which is headed “General Obligations Created by Parenting Order that Allocates Parental Responsibility”. The section reads that:

    (1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order allocates parental responsibility for the child to a person (the carer).

32. The father submits that a parenting order is envisaged to be made by someone who is a “carer” of the child. 

33. The mother has proposed that Mr B be the person who takes charge of the best interests of the children in relation to their compulsory third party (“CTP”) claims.  This can only happen if he has parental responsibility. But Mr B could hardly be called a “carer” because he has never met the children, and it is doubtful that he ever will meet the children, even if it is that I make the order that the Mother has asked. 

34. The Father points out a further obstacle in that Mr B is a professional person and would need to be recompensed for his services.  There is no separate head of damage for fees to be paid to a litigation guardian, let alone a person who has sole parental responsibility.  In fact, the whole notion of Mr B being paid is totally contrary to what the Family Law Act 1975 (“the Act”) envisages when it is that a Court gives a person sole parental responsibility. 

35. It is doubtful, though, that the Act ever envisaged a situation occurring such as the present one.

36. At the time at which the Act came into being, the MAIA was 20 years away from being enacted. If the provisions of that Act had not been assented to, the common law would have been the way in which claims of X and Y against their Mother would have been commenced. That is, by the issuing of a writ and the appointment of a litigation guardian from that point on; or, as the term was called in those days, the “next friend”. That is the common law way in which a tort is litigated.

37. The statute has now overruled the common law. The statute is the reason why it is that the Court finds itself in such a dilemma. As I say, I am of the view that the Father should not be the person that is responsible for the management of the children's claims under the MAIA. His behaviour so far has shown that he is incapable of understanding what it is that the children need and, therefore, any communication that he has, or instructions that he gives, or management that he undertakes, with regard to the pre-action procedures are going to be matters where the full range of benefits needed by the children would not be able to be adequately presented.

38. I have struggled with this point because I would have no hesitation in giving Mr B the position of litigation guardian and allowing him to conduct the litigation.  If it were that the proceedings were commenced under the common law, there would be absolutely no issue with this, but as I say, the statute has overruled the common law and a litigation guardian cannot have any say in the pre-action procedures.  In fact, there is no room for a litigation guardian to be appointed until the pre-action procedures have led to a point where the matter needs to be settled by the adversarial court processes. 

39. While it is a matter that would seem to me to be totally counter to what the legislature was envisaging when giving the power to make a parenting order in favour of a person, it does seem to me that on a strict reading of s.64C of the Act, the Court is able to make a parenting order in favour of someone such as Mr B. The question is really should the Court do so for the reasons that I have already noted that he is not a “carer” of the child. 

40. However, if one looks at what it is that he is actually doing, he is “caring” of, and for, the interests of the children.  That is, that he would navigate the interests of the children having regard to all of the information - not just from the Mother, but also of the Father, but being independent and understanding that the two of them have an appalling ability to communicate and will take contrary positions to the other, simply to be contrary. 

41. The fact is that someone who is independent will be able to ensure that the best interests of the children are well and truly at the forefront of this pre-action procedure process, whereas it would seem to me that there would still be an element of “point scoring” and an inability to understand fully what is in the children's best interests if it were that the Father, by default, exercised sole parental responsibility in this area. 

42. So having come to that decision that it would be in the best interests of the children for Mr B to exercise parental responsibility for this very narrow aspect of the children’s lives, the question is then how is it that Mr B is going to be recompensed.  Mr B’s professional fees are, as he has deposed in his affidavit, some $450.00 an hour.  He has said that he does not believe that overall his fees will be terribly onerous.  Whilst it is very unusual, it was submitted by the mother that the Court could make an order similar to the procedural fairness orders that the Court makes in regard to property matters where there is a superannuation splitting order. 

1. It was submitted that the potential Trustee (it would seem to me the Public Trustee, though I am also told the perpetual Trustee may also be a potential Trustee of whatever sum of money the children end up receiving), have the potential Court orders (for compensation for the children which would include a payment to Mr B), and asking them to tell the Court what views they have.  The problem with that submission is that the Public Trustee has not yet been engaged.  In fact, no trustee has been engaged because there is nothing upon which to put in trust. 

2. The difference we have in a property settlement case is that there are superannuation monies that the Trustee is looking at and presiding over.  There is nothing at the moment and so, in effect, any serving of these orders upon the Public Trustee would amount to asking the Public Trustee to give a provisional opinion, and such an opinion would probably not be binding. 

3. So there are reasons why it seems that there may be issues with regard to this.  Those are issues for which the Court cannot give satisfactory answers at the moment. 

4. The real problem seems to be as to whether the Court makes the order that it feels is in the best interests of the children, or makes an order that it feels is not in the best interests of the children but does so because there are a number of roadblocks that the Court simply cannot know the answer to at this stage of the matter.  This has not been an easy decision, but notwithstanding my reticence, I am of the view that I ought to grant the application that the Mother seeks.

5. I will order that Mr B become a party to the proceedings. I will order that Mr B be given sole parental responsibility in relation to the commencing and managing of personal injury claims on behalf of X and Y as a result of the motor vehicle accident that occurred on 24 March 2019. I will order that Mr B be appointed as litigation guardian if it is that matter proceeds to the point of there being the need for a litigation guardian to be appointed.

6. I will also order that, in relation to the exercise of the sole parental responsibility, Mr B will advise the parents of any decision to be made in relation to this particular narrow area, he will consider the parents’ views and he will advise them of the decision ultimately to be made as soon as possible, and within seven (7) days of making the decision.

7. At this point, I cannot make an order as to his costs because I am not sure exactly what the procedure will end up being. But I will make a notation that, at the settlement of the claims, Mr B will present the Trustee with a schedule of his fees and it will be a matter of the Trustee paying those fees if the Trustee is of the opinion that those fees are proper to be paid.

8. I will make a note that while it is a matter for the Trustee, it would seem that any fees associated with this would seem to be properly expended on behalf of the children for their benefit.  But as he is a party to the matter now, Ms Firth, it seems to me as though that is part of the responsibility he takes as a party to the matter.

9. This is where I differ with Counsel who appears for the Father, because the Mother or the Father can actually give information to Mr B; now the giving of information is not the same as being party to the matter and/or giving instructions.  It is simply ensuring that all information is covered.

10. That is the proper construction in this case.  Any person who was the litigation guardian, even if it were the Father, he would have to talk to the Mother to get information to inform decisions.  He would have to talk to the Mother because he does not know all of the issues, because he is not there all the time with all of the specialists and he doesn’t know how many times the child has gone to this person or that person; why is it that they change from this specialist to that specialist; or, when did that happen and who were the people around.  Unless it is the Mother is giving that information, then how on earth can anyone charged with acting for the child properly make decisions about the conduct of the insurance claim?

11. I understand why it is that Counsel for the Father says this offends the prohibition on the mother’s involvement, but there is a real difference, as far as I am concerned, with being involved in the litigation or being consulted as to the factual matrix that will enable Mr B to be able to form a proper conclusion. 

12. It may very well be that because Mum will explain things to Mr B, that the Father will end up getting a far better understanding of what it is that is happening. Unfortunately, at this point in time, it does seem to me, that it does not matter what Mum says, the Father has already put up the shutters, and whatever the Father says, Mum has put up her shutters as well.

13. Mr B’s necessity in having to talk to the two of them to explain what it is that is happening and to listen to what it is that they say, really will help the two of them and, more importantly, will be in the best interests of the children. This is also part of the reason that I am making the Order.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       24 May 2021