Beasley & Giles
[2022] FedCFamC2F 750
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beasley & Giles [2022] FedCFamC2F 750
File number: MLC 830 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 May 2022 Catchwords: FAMILY LAW – appointment of a litigation guardian. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 3.12, 3.14-3.16. Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 19 May 2022 Place: Shepparton (Via Microsoft Teams) Solicitor for the Applicant: Ms E Solicitor for the Respondent: Ms D (appearing as a friend to the court) ORDERS
MLC 830 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BEASLEY
Applicant
AND: MR GILES
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 MAY 2022
THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to Rule 3.15 of the Federal Circuit and Family Court (Family Law) Rules 2021, Ms D of D Law Firm be appointed as litigation guardian for the Respondent, Mr Giles.
2.The Respondent, by his litigation guardian, file and serve a Response and supporting documents within 56 days of these orders.
3.The litigation guardian be and is hereby authorised to communicate with, request information from and provide information to (verbally or in writing) any institutions necessary to competently conduct the proceedings on behalf of the Respondent, including but not limited to the following:
(a)Banking and financial institutions;
(b)Medical practitioners who have treated the Respondent;
(c)The Transport Accident Commission; and
(d)Legal practitioners, law firms and conveyancers who have acted for the Respondent in relation to matters involving the Transport Accident Commission and/or purchase of the property at B Street, Town C Victoria
AND this Order shall stand as such Authority and may be provided by the Litigation Guardian to any of the entities referred to in sub-paragraphs 3(a) to 3(d) hereof.
4.The litigation guardian be at liberty to charge the Respondent for her services as litigation guardian and IT IS REQUESTED that Victoria Legal Aid give consideration to funding the cost of the litigation guardian on behalf of the Respondent, in addition to the usual funding the Respondent may be entitled to for legal representation as the Respondent.
5.The matter be adjourned to 14 November 2022 at 10.00am for mention in the November 2022 Shepparton Circuit sittings of the Federal Circuit and Family Court of Australia, and thereafter for a Conciliation Conference or Mediation on a date to be fixed by the Court.
6.The parties and the litigation guardian have liberty to apply in the event of difficulties obtaining funding from Victoria Legal Aid for these proceedings.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym Beasley & Giles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of an ex tempore judgment.
In this case, I must determine whether I agree with the solicitor for the applicant de facto wife and the solicitor, Ms D, who has been acting pro bono, or attempting to act and represent the respondent de facto husband (‘the Respondent’). The solicitor seeking to assist the Respondent seeks a litigation guardian to be appointed.
Rule 3.12 provides:
3.12 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences of the proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
The matter was listed before me in the March sittings of the Shepparton Circuit and was unable to proceed, as the Respondent neither appeared nor was represented. Ms D had been consulted by the Respondent, together with the Respondent’s mother, and it was Ms D's judgment, at that time, that the Respondent was unable to provide her with instructions, in the sense that it appeared to her that he did not understand the nature and possible consequences of the proceeding, and that he was not capable of adequately conducting or giving adequate instruction for the conduct of the proceeding.
I do not have medical evidence before me, but it is the position of the applicant de facto wife (‘the Applicant’) that prior to her relationship, the Respondent suffered a significant acquired brain injury that continues to affect his functioning. The Respondent received a transport accident commission settlement as a result of that acquired brain injury. The parties commenced cohabitation in 2009, and then between 2014 and 2019, had four children. Those four children live with the Applicant. The parties separated in or about November 2020, and the Applicant issued proceedings on 1 February 2022.
When the matter came on before me in this circuit this Monday, 16 May 2022, Ms D advised me that she had been unable to identify a family friend or member who was prepared to undertake the difficult and onerous task of being a litigation guardian for the Respondent. Ms D's position was that the provisions of rule 3.16(3) should apply, being:
(3)If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party.
I made inquiries of the court as to the usual process for having the Attorney-General appoint a person to be a manager of the affairs of a party. The advice that I have obtained is that the Attorney-General's department often has limited success in identifying an appropriate person willing to be a litigation guardian. That was unsurprising, as with local knowledge, Ms D had already had that difficulty when making her inquiries.
After further discussion before me, the matter was adjourned until today to contemplate just what to do about the Respondent having a litigation guardian. The alternative was that he would be a litigant in person. Ms D filed an affidavit on 19 May 2022 setting out her view as an experienced practitioner as to the difficulties of adequately conducting the proceedings on the instructions of the Respondent. I accept that evidence.
In the meantime, Ms D and Ms E (solicitor for the Applicant) have been able to raise the matter with Ms D. Ms D has sworn an affidavit filed by Ms D on 19 May 2022, still acting pro bono, that:
[Ms D] is an adult, has no interest in the proceedings adverse to [the Respondent] and can fairly and competently conduct the proceeding.
That is to say, Ms D and Ms E have helpfully addressed the criterion for a litigation guardian at rule 3.14. Ms D also asserts that she has practiced family law since 2004, and that she can fairly and competently conduct these proceedings for the respondent. Her ability and expertise in that regard is supported by Ms D and not challenged by Ms E.
It is a very significant matter to have a litigation guardian appointed for you. By that appointment, that person loses control of their own legal affairs, because that control rests in the litigation guardian. There are a number of safeguards. The practice of a litigation guardian is to consult with and take into account what the views of the person whose affairs are being "guarded" and I have every confidence that Ms D will attempt to do that. How successful she will be on that will turn on the Respondent’s cooperation with her.
In any event, the Respondent would be able, notwithstanding this appointment, to challenge the appointment on appropriate evidence and seek the discharge of this order if it is inappropriate. There are some practical procedural difficulties as to how he does that, but the flexibility of the rules would accommodate such an application if it was to be made on proper evidence. Relying on Ms D's experience, it is unlikely that when she attempted to obtain instructions to assist the Respondent, that he was simply having a bad day and that he really did not have a need for a litigation guardian.
On the balance of probabilities, I find that the Respondent needs a litigation guardian, and that he is a person who does not understand the nature and possible consequences of the proceedings, and he is not capable of adequately conducting or giving adequate instruction for the conduct of the proceeding. The consequences of that mean that without a litigation guardian, the proceedings would not be able to adequately advance, or if they did, there is a real potential for unfairness or disadvantage to the Respondent. A litigation guardian assists the progress of the proceedings, but it also is just that: a guardian of the interests and affairs of the Respondent.
In all those circumstances, I am satisfied that I should make the order appointing Ms D as litigation guardian, noting her consent to that position.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 June 2022
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