Agambar & Agambar
[2021] FedCFamC1A 1
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Agambar & Agambar [2021] FedCFamC1A 1
Appeal from: Agambar & Agambar [2021] FCCA 1113 Appeal number(s): NOA 25 of 2021 File number(s): BRC 8532 of 2019 Judgment of: STRICKLAND, AUSTIN & BAUMANN JJ Date of judgment: 2 September 2021 Catchwords: FAMILY LAW – APPEAL – Parental responsibility – Litigation guardian – Whether the primary judge erred in vesting a solicitor with parental responsibility for the children for the limited purpose of instructing lawyers to act on their behalf in their tort claims against the mother – Whether the primary judge failed to give adequate weight to evidence adduced by the father – Whether the inferences drawn by the primary judge were “wrong” – Whether the primary judge erred at law by vesting the solicitor, rather than the father, with parental responsibility for the limited purpose – Where no error is identified – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 61C, 61D, 64B(2), 64C, 65C, 65DAC, 65G(1A) 65P, 117(2A)
Motor Accident Insurance Act 1994 (Qld) ss 44, 52, 53
Uniform Civil Procedure Rules 1999 (Qld) rr 93, 94, 95
Cases cited: Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229;
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Maldera v Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Scott & Scott (1994) FLC 92-457; [1994] FamCA 12
Valentine & Lacerra (2013) FLC 93-539; [2013] FamCAFC 53
Vallans v Vallans (2019) 60 Fam LR 193; [2019] FamCAFC 260
VR & RR (2002) FLC 93-099; [2002] FamCA 320
Warren v Coombes (1978) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 57 Date of hearing: 23 August 2021 Place: Heard in Brisbane (via video link), delivered in Newcastle Counsel for the Appellant: Mr Arnold Solicitor for the Appellant: Swanwick Murray Roche Counsel for the First Respondent: Dr Brasch QC with Ms Firth Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: Litigant in person ORDERS
NOA 25 of 2021
BRC 8532 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR AGAMBAR
AppellantAND: MS AGAMBAR
First Respondent
MR B
Second Respondent
ORDER MADE BY:
STRICKLAND, AUSTIN & BAUMANN JJ
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 9 August 2021 be dismissed.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of and incidental to the appeal in the fixed sum of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Agambar & Agambar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AUSTIN & BAUMANN JJ:
In March 2019, within weeks of the parents’ separation, the respondent mother lost control of the car she was driving in Queensland and crashed. The parents’ three children were passengers. Tragically, one child was killed and the other two were injured.
The surviving children are seized of causes of action in tort for personal injury damages against the mother for her negligence. As minors, the children lack legal capacity to prosecute their own claims and, unless their claims are resolved by mandatory pre-action mediation, a litigation guardian must be appointed to pursue remedies for them by suit under Queensland motor accident compensation legislation. The litigation guardian need not be a solicitor, but is only able to act through a solicitor (rr 93–95 of the Uniform Civil Procedure Rules 1999 (Qld)).
Commonly, a parent who holds parental responsibility for the children would fulfil the role of litigation guardian and instruct a lawyer. In this instance, the parents were vested with equal shared parental responsibility for the children by final parenting orders made consensually in December 2019. However, in the exercise of such shared parental responsibility, as required by s 65DAC of the Family Law Act 1975 (Cth) (“the Act”), even after mediation, the parents were unable to agree upon who should pursue remedies for the children and fulfil the role of their litigation guardian. That was the nub of the dispute before the primary judge.
The parents conducted the proceedings before the primary judge mutually accepting that the mother is disqualified from acting as the children’s litigation guardian because, as a defendant to their claims in tort, she could not simultaneously instruct lawyers to both prosecute and defend the suits. Under s 52 of the Motor Accident Insurance Act 1994 (Qld) (“the MAIA”), the mother and her compulsory insurer must be jointly sued as the defendants. The mother did not seek to contend that, due to the insurer’s subrogation pursuant to ss 44 and 53 of the MAIA, her right to retain and instruct lawyers in defence of the children’s claims is removed and thereby obviates any conflict of interest which precludes her from instructing lawyers for the children. In the absence of any such argument, the primary judge accepted the premise of the mother’s disqualification from either acting as or giving binding instructions to the children’s litigation guardian.
Among the suite of orders sought by the mother before the primary judge was one directly appointing Mr B as the children’s litigation guardian in the tort proceedings, but no such order was made. Although the primary judge foreshadowed that such an order might be made in the future (at [47]), in all likelihood, no statutory power exists to make it. The questions of who should have parental responsibility for the children and who should be their litigation guardian in tort proceedings are quite different. The former question was decided by the primary judge under the provisions of the Act, as both parties sought, but the appointment of a litigation guardian for the children is exclusively the province of the State court in which the children’s tort claims are litigated.
In respect of the dispute over parental responsibility, the parents postulated a binary choice for the primary judge: the mother wanted her nominee, Mr B, vested with parental responsibility for the children for the limited purpose of him instructing lawyers to act on their behalf in the tort claims, whereas the father wanted exclusive parental responsibility for exactly the same limited purpose. The parents accepted they would each continue to share parental responsibility for the children in all other respects.
On the mother’s proposal, Mr B would have sole parental responsibility for the children in relation to their tort claims and would use that authority to acquire the status, and then act in the capacity, of the children’s litigation guardian. The solicitor whom Mr B then retains to represent him on the children’s behalf would be bound by his instructions. Both parents would be able to furnish Mr B with their respective views for his deliberation but, having heard their views, the ultimate decision about what would be best for the children in the tort litigation would rest with him.
Conversely, on the father’s proposal, he would have exclusive parental responsibility for the children in relation to their tort claims and would use that authority to fulfil the role of their litigation guardian. In the exercise of such authority he intended to retain Mr Lipke as his solicitor in the tort proceedings, whom he had already retained without consulting the wife. In such circumstances, Mr Lipke would be bound to accept and act on the father’s instructions. The father would be at liberty to ignore the mother’s views and Mr Lipke would be obliged to.
The primary judge was persuaded to accept the mother’s proposal and, on 4 May 2021, made orders in these terms:
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 [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.
Self-evidently, the effect of the orders is to remove one limited aspect of the parental responsibility for the children formerly held by both parents.
Mr B was joined to the proceedings as no order could have been made foisting upon him any aspect of parental responsibility for the children unless he was willing to accept the burden imposed by and submitted to such an order.
The father now appeals from the orders by way of an Amended Notice of Appeal filed on 16 July 2021, which the mother resists. Mr B was joined to the appeal and appeared, but chose not to participate and to submit to the Court’s decision.
APPLICATION TO ADDUCE FURTHER EVIDENCE
On 9 August 2021, the father filed an Application in an Appeal seeking permission to adduce as evidence in the appeal the affidavit of Mr Terrence John Tummon sworn on 21 June 2021. Whether or not the application was filed slightly late, the mother did not contend such lateness should preclude it from being entertained.
An affidavit sworn by Mr C on 9 August 2021 was read in support of the application even though, curiously, leave was not sought to additionally rely upon that affidavit, which anomaly we are prepared to overlook. Mr Tummon’s affidavit was annexed to Mr Lipke’s affidavit, which Mr Lipke deposed to having read. The evidence proves that Mr Tummon conversed with Mr B on 14 May 2021, when Mr B disclosed his intention to withdraw Mr Lipke’s instructions in the children’s tort claims and re-instruct another solicitor in his place. Mr Lipke deposed how, if that occurred, more legal costs would be incurred by the new solicitor having to acquaint him or herself with the progress in the tort proceedings thus far. Mr Lipke asserted such evidence was intended to buttress the complaint agitated by the father within Ground 3, but it does not fulfil that purpose.
Ground 3 complains of alleged legal error committed by the primary judge in making orders favouring Mr B rather than the father as the recipient of limited parental responsibility for the children to prosecute their tort claims against the mother. It was never in doubt before the primary judge that, if Mr B was the favoured choice, he might withdraw instructions from Mr Lipke and re-instruct a different solicitor, so Mr Tummon’s confirmatory evidence adds nothing. It would almost certainly follow that the change of legal representation would incur some extra legal expense, so Mr Lipke’s evidence added nothing either. Mr Lipke did not purport to quantify the extra cost, aside from saying it “can occasion substantial cost”. Perhaps it can, but if he was purporting to imply it would be so substantial as to be a prohibitive factor in the decision required of the primary judge in this instance, such an implication was liable to be controversial and it ought then have been evidence the father led before the primary judge so the mother had the chance to meet it. Her inability to do so in the appeal militates against its reception (CDJ v VAJ (1998) 197 CLR 172 at [55], [114], [116] and [186.9]).
THE APPEAL
Ground 1
This ground comprises two separate elements which hardly seem compatible.
The first complaint is that the primary judge erred by failing to decide all material issues raised by the father, which can be immediately rejected because the primary judge considered and decided the solitary issue joined between the parties. Whether the primary judge correctly decided the dispute is an altogether different question, but it cannot be validly asserted the primary judge left a justiciable controversy undecided, as this first part of the ground implies. Both parents wanted the primary judge to allocate parental responsibility for the children within a limited spectrum to one specific individual, which his Honour duly did. There was no other component to the father’s claim for relief, so there was no failure to exercise jurisdiction regularly invoked.
The second complaint is that, in reaching the decision, the primary judge failed to give any or proper weight to the evidence contained within the affidavits sworn by the father and Mr Lipke on 19 April 2021.
The father deposed in his affidavit to his intention to act in the children’s best interests and refuted various complaints made against him by the mother in her affidavit. Despite the factual conflict, neither party was cross-examined.
Mr Lipke gave evidence about his legal qualifications and experience, the terms of his retainer agreement with the father, his satisfaction with the father’s instructions on behalf of the children to that point in time, the need for any eventual settlement of the children’s claims to be vetted by the Supreme Court of Queensland, and the unavailability of any claim for the reimbursement of fees paid to a professional litigation guardian (like Mr B) as a separate head of damages in the tort claims. Mr Lipke was not challenged about any of his evidence.
There can be no doubt such evidence was relevant to the contested issue and therefore had to be considered by the primary judge, but that is the point at which the father’s complaint fails. He did not demonstrate the primary judge failed to give “proper, genuine and realistic” consideration to the evidence, as he robustly submitted. His Honour expressly acknowledged Mr Lipke’s evidence about how any settlement achieved for the children had to be “sanctioned” (at [16]) and that the fees charged by Mr B for his professional services could not be recovered in damages (at [34] and [42]). It necessarily follows that the evidence given by Mr Lipke was considered properly, genuinely and realistically, but it did not clinch the dispute in the father’s favour as he had hoped.
The pivotal factors which convinced the primary judge to allocate parental responsibility to Mr B instead of the father were two-fold. First, the parents’ reciprocal lack of trust and their inability to cooperate was inimical to the father taking due account of the mother’s views if he held exclusive parental responsibility for the children in relation to their tort claims (at [20]–[23] and [40]–[41]). Mr Lipke’s competence and integrity were never in doubt, but his ethical allegiance must lie entirely with the father and not with the parents jointly, quite unlike the situation for Mr B (at [41], [48], [51]–[53] and [55]). Secondly, the father did not fully comprehend the gravity of the children’s needs or the extent of their medical deficits (at [19], [24]–[26], [37] and [41]). The father’s pursuit of the tort claims for the children to that point in time was acknowledged as being to his credit (at [15]).
While the father refuted the mother’s proposition that he did not fully grasp the extent of the children’s deficits and the extent of their needs, it was open to the primary judge to accept the mother’s untested evidence in preference to the father’s. The preferential acceptance of the mother’s evidence did not mean, as the father supposed, that his evidence was not properly, genuinely and realistically considered before it was rejected.
Nor was the rejection of the father’s evidence precluded merely because it was unchallenged (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587–588; Scott & Scott (1994) FLC 92-457 at 80,729). The parents chose not to test one another over any factual discrepancies in their evidence. That being so, to the extent it was necessary to resort to conflictual evidence, his Honour needed a reasonable basis for the preference of one party’s evidence over the other because it was impossible to accept the incompatible evidence of both.
The mother adduced direct evidence of the father’s conduct, including emails he sent to her, upon which she based her own conclusions about his unsuitability for the unilateral control of and authority over the children’s tort claims. Such direct evidence enabled the primary judge to draw his own inferences which were adverse to, and entailed rejection of, the father’s contrary evidence. Accordingly, it was not perverse or illogical to prefer the mother’s evidence.
The father otherwise contended that his evidence was “material, pertinent [and] apposite”, asserting it was therefore obligatory for the primary judge to deal with it in the reasons for judgment. The proposition is rejected. We have already identified the two crucial reasons given by his Honour for the orders. Those reasons were neither insufficient nor misconceived just because the father preferred to emphasise other factors. To be adequate, the primary judge’s reasons did not need to deal with every piece of evidence or every argument raised (DL v The Queen (2018) 266 CLR 1 at [130]–[131]; Fox v Percy (2003) 214 CLR 118 at 132).
There is no substance in this ground.
Ground 2
This ground complains that the primary judge erred either by drawing the wrong inference or by failing to draw the correct inference from some underlying findings, which were expressed this way:
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 [Queensland] area for a "Purple Charity Event". The flier clearly stated that:
The [family] were deeply impacted as the result of a car accident on [named] Road on Sunday morning. Monies raised will go towards ongoing medical costs for little [child].
21.The mother has calculated that there was approximately $38,000 donated to this cause. None of that money was used for any of [child’s] medical expenses.
22.Because [child] was going to be spending time with his Father in [Queensland regional town], a building audit was completed by an occupational therapist. The report made a number of recommendations so that the house could be modified for [child’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 [child] 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 [child’s] therapists to send confirmation that he can't fly as an unaccompanied minor, i [sic] read fiona'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.
The father’s written and oral submissions made in support of the ground identified the allegedly “wrong” inferences drawn by the primary judge to be those about the parents’ mutual distrust and the father’s failure to grasp the gravity of the children’s medical predicament (at [26] and [37]), which inferences objectively flow relatively easily from the underlying findings of fact extracted above.
The father sought to attack the inferences drawn by the primary judge, but only by emphasising the evidence he gave to contradict the mother’s evidence – not by explaining why it was an error for the primary judge to accept the mother’s evidence in preference.
The father referred to evidence which he submitted tended to cast a quite different complexion over the delayed building modifications to his home (at [22]), his own use of the money donated by the public for the children’s benefit (at [20]–[22]) and the content of the emails he sent to the mother between May and December 2020 (at [23]–[25]), but in so doing only tended to show how his grievance is really no more than one about the differential weight attributed to different parts of the evidence, which is a difficult challenge to make good in an appeal from a discretionary judgment (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 518 and 519–520; CDJ v VAJ (1998) 197 CLR 172 at 231–232).
An appellate court should not interfere with a finding of fact if there was evidence on which that finding could be made, thereby leaving it reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). Here, the basal findings of the primary judge which the father challenges (at [20]–[25]) were open on the mother’s evidence. Undoubtedly, the father retained for his own benefit some $38,000 in public donations which were intended for the benefit of the children, he told the mother he did not trust her and did not want to communicate with her, and he said he did not believe one child’s disabilities were as serious as the mother and the medical professionals contended.
While an appellate court is able to form an independent judgment about the proper inferences to be drawn from established facts, the inferences drawn by the primary judge must have been wrong before the appellate court has the right to intercede and the duty to decide the question for itself (Warren v Coombes (1978) 142 CLR 531 at 538, 541–544 and 551–552). Once acknowledged it was open for the primary judge to accept the mother’s evidence, the inferences drawn from findings based on such evidence were available and hardly incongruent. The inferences drawn by the primary judge (at [26], [37] and [40]–[41]) spring logically from the factual findings and so Ground 2 also fails.
Ground 3
This ground simply alleges the primary judge erred at law by making orders for Mr B rather than the father to hold parental responsibility for the children for the limited purpose of prosecuting the children’s tort claims against the mother.
The ground is supported by a submission made in these terms:
46.His Honour’s decision robs the [father] of the ability to exercise parental responsibility in an important aspect of the Children’s lives.
Before moving on, it is worthwhile observing how the father’s submission tends to assert his inherent right to make decisions for the children, whereas the Act is instead formulated to emphasise, on the one hand, children’s rights, but on the other hand, parents’ duties, obligations and responsibilities (Vallans v Vallans (2019) 60 Fam LR 193 at [39]).
In an attempt to vindicate his point, the father selectively cited Full Court authority to underscore the general disinclination of courts to interfere with parents’ parental responsibility for their children(VR & RR (2002) FLC 93-099), in these terms:
29.Whilst the word “proper” [in s 65D(1)] connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
We accept the proposition as being correct, but it is only a generalisation. In VR & RR, the Full Court actually dismissed the aspect of the appeal which concerned the trespass upon parental autonomy by the appealed orders, which tends to deflate the father’s point. The father did not cite the surrounding paragraphs of that decision which contextualise the part upon which he sought to rely in isolation, namely:
28.The overall framework of the legislation can be seen to provide that both parents have parental responsibility for the child but that a court may take away or diminish an aspect of parental responsibility if it is “proper” to do so.
…
30.In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.
The Full Court therefore recognised how the circumstances which are peculiar to a specific case might justify judicial interference with the parental responsibility vested in parents either by law or former court order. Adopting the observations of the Full Court in VR & RR (at [30]), the primary judge’s interference with the allocation of parental responsibility was warranted because both parents desired it to resolve their impasse so the children’s welfare could be clearly advanced. Both parents sought an order interfering with their existing equal shared parental responsibility for the children.
The application of the general rule of which the Full Court spoke in VR & RR (at [29]) does not impugn the primary judge’s decision here, as the father sought to imply, because any parental responsibility with which a parent is seized only exists so long as no contrary court order is made. The Act expressly envisages that parental responsibility can be vested in adults other than the child’s parents (ss 61D(1), 64B(2), 64C, 65C, 65G(1A) and 65P) and it is now well established that there is no presumption in favour of parents over non-parents in the determination of proper orders to resolve parenting disputes, including by orders allocating parental responsibility (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]–[61], [75]–[81], [83]).
Contrary to the father’s apparent expectation, his authority over the children is not inalienable. The parental responsibility for them with which he was originally imbued by law (s 61C(1)) was removed and replaced with his equal shared parental responsibility under the consent orders made in December 2019 (ss 61C(3) and 61D(2)). Before the primary judge, both parents sought different orders again.
Nonetheless, the primary judge was acutely aware of the significance of the decision to vest parental responsibility in Mr B in preference to the father, saying:
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.
…
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.
(Emphasis in original)
Since the primary judge appreciated the gravamen of the decision he was invited to make and nevertheless decided to invest Mr B with the discrete portion of parental responsibility which was in dispute, the father’s complaint under this ground of appeal was all but exhausted because he was unable to contend the law necessarily precluded his Honour from giving the confined aspect of parental responsibility to Mr B instead of him. Rather, his arguments devolved to his emphasis of the reasons why he believed he was the better choice. While those arguments tend to fall beyond the ambit of this ground of appeal, they are still capable of rational answers.
In summary, the father asserted this: he had already appointed a competent lawyer in Mr Lipke to minister the children’s claims; any settlement of the children’s claims would need the supervisory approval from the Supreme Court of Queensland and not be a decision left entirely to him; the children’s representation by Mr B would come at a cost, whereas he would give his time freely; and Mr B would be prohibited from conferring with the mother.
As already noted, Mr Lipke’s competence and integrity was not the subject of any challenge, but the father retained him to act without consulting the mother, apparently ignoring the order allocating the parents with equal shared parental responsibility. Mr B also intends to retain a competent personal injury lawyer to act for the children, but the lawyer he chooses will be bound by Mr B’s instructions and, unlike the father’s instructions to Mr Lipke, Mr B will formulate his instructions by taking account of the views expressed by both parents.
The father’s contentions that Mr B is prohibited from conferring with the wife and it would be “ethically unsound” for Mr B to do so are both rejected. Despite the mother’s status as one of two defendants to the children’s tort claims, she still holds views about their interests which she is permitted to share with Mr B. It is just that the views she expresses to Mr B cannot rise to the level of binding instructions. The primary judge made an order expressly permitting Mr B to take both parents’ views into account (Order 3(b)) and, while the father challenged the primary judge about the validity of that sub-order after it was pronounced, he expressly disavowed any contention in the appeal that the order is incompetent. However, the father still maintained the order was “awkward”, which proposition we do not accept either.
That particular order was based on these reasons given by the primary judge:
51.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.
52.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?
53.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.
The father could have no real quarrel with those propositions, since he admitted in the affidavit upon which he relied before the primary judge that, if he was in the same position as Mr B, he would consult the wife too. The father deposed:
39.… I have no issue with emailing the [mother] or talking to her by way of telephone for the purposes of obtaining any information that may be required by me to prosecute our children’s respective claims.
(Affidavit of the father, filed 19 April 2021)
The primary judge did not accept the father would communicate with the mother to acquire relevant information from her but, importantly, the father’s evidence undercuts his assertion that the person who holds parental responsibility for the children could not permissibly confer with the mother whilst she was a named defendant to the tort proceedings.
Otherwise, the primary judge was aware of and dealt with the father’s submissions about oversight of the tort claims by the Supreme Court of Queensland (at [16]).
The primary judge was also aware of and dealt with the father’s submissions about the fees Mr B would charge (at [34] and [42]–[46]). In respect of such fees, the father submitted to the primary judge:
[COUNSEL FOR THE FATHER]: And those criticisms really come down to the fact – can I say it in a nutshell, that what this court is being asked to do is to hand parental responsibility to someone who will be making profit from it. I mean, Mr B is a professional, but he is a professional and what he does is he makes a profit, and for this court to be involved in the handing of that responsibility to someone to make a profit, in my submission, goes against the spirit of the Act. That is a general submission.
…
[COUNSEL FOR THE FATHER]: … [T]here is just no guarantee here that Mr B will ever be paid, which is a real difficulty for this court and this decision. Mr B is going to be the parent, and he wants to be paid for being – making decisions as a parent. That’s probably better expressed.
(Transcript 4 May 2021, p.19 line 40 to p.20 line 33)
So the gist of the father’s argument was that granting Mr B parental responsibility would be contrary to “the spirit of the Act”, which is hardly compelling. The submission did not dissuade the primary judge from granting limited parental responsibility to Mr B, however his Honour did abstain from making any order governing the payment of Mr B’s fees, thereby rejecting the mother’s application for an order dealing specifically with that issue. But notations were made in these terms in relation to such fees:
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.
Mr B must be content with that arrangement because he did not appeal from the orders and there was no indication to us he has recanted his willingness to represent the children. The father’s grievance about the asserted “uncertainty” of that situation did not, as he thought and submitted, constitute an error of law.
Ground 3 also fails.
CONCLUSION
The appeal is dismissed.
In the event of dismissal of the appeal, the mother sought costs against the father. He formally opposed any such order, though his opposition was muted, as he primarily sought that costs follow the event in his favour if the appeal succeeded. Alternatively, the father proposed the order for costs should fall at the lower end of the range proposed by the mother due to his modest financial circumstances (s 117(2A)(a)). However, his financial circumstances were not so modest as to dissuade him from bringing the appeal and risking the significant costs he incurred with his own lawyers.
The appeal was wholly unsuccessful (s 117(2A)(e)) and the father’s financial circumstances could not be construed as being materially worse than the mother’s. As the primary carer of the parents’ surviving disabled children with few assets and modest income, she can ill afford to waste expenditure vindicating the orders under appeal. We consider the father should meet the mother’s party/party costs of the appeal. Such costs will be fixed at $10,000, which figure is at the lower end of the range she claimed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Austin & Baumann. Associate:
Dated: 2 September 2021
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