Blum & Wolff
[2025] FedCFamC1F 23
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blum & Wolff [2025] FedCFamC1F 23
File number(s): BRC 13613 of 2021 Judgment of: BRASCH J Date of judgment: 21 January 2025 Catchwords: FAMILY LAW - PARENTING - LITIGATION GUARDIAN - Where father needs a litigation guardian but no friends or family appropriate - Where father has no funds to remunerate a paid litigation guardian - Where Legal Aid declined to fund a litigation guardian, but is funding the ICL, father and mother - Where numerous court events do not proceed because no litigation guardian - Where children have not seen father for five years - Where mother has interim orders in her favour - Where father currently has unequal recognition before the law and is without access to justice contrary to Articles 12 and 13 of the Convention on the Rights of Persons with Disabilities - Where QCAT application may, or may not, resolve the impasse - Where matter stayed until a person applies for an interlocutory order to be appointed as litigation guardian Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.13, 3.14, 3.16
Guardianship and Administration Act 2000 (Qld)
United Nations Convention on the Rights of Persons with Disabilities Arts 12, 13
Cases cited: Re Minister for Immigration, Multicultural Affairs; Re; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 21 January 2025 Place: Brisbane Solicitor for the Applicant: Ms N. Cox, Redhill Legal Solicitor for the Respondent: Ms L. Secomb, Family Centred Law Pty Ltd Solicitor for the Independent Children's Lawyer: Mr A. Kingston, Norman & Kingston ORDERS
BRC 13613 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BLUM
Applicant
AND: MR WOLFF
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
1.The application for parenting orders is stayed until a person applies for an interlocutory order to be appointed as a litigation guardian for the father.
2.In the event such an application is made, the parties are at liberty to send a joint letter to chambers by email (via …@…) setting out whether or not the parties:
(a)Agree or do not oppose the proposed litigation guardian’s appointment; and
(b)Consent to the question of the appointment of the proposed litigation guardian being determined in chambers.
3.In the event the parties agree or do not oppose the appointment of the proposed litigation guardian per Order 2 (a) above and consent to the matter being considered in Chambers per Order 2(b) above, then the application to appoint the litigation guardian will be determined in chambers and the matter subsequently brought on for mention on a date to be fixed.
4.In the event a party/s opposes the proposed litigation guardian and/or do not consent to a determination of that discrete application in chambers, then the matter will be brought on for mention on a date to be fixed.
5.Upon the appointment of a litigation guardian, if the parties are able to reach settlement on any parenting issues, they are at liberty to send through a proposed Minute of Consent Order, together with a letter/email briefly setting out why the proposed orders are in the children's best interests, to chambers (via …@…) for consideration.
6.Leave is granted to all parties to provide a copy of the Ex Tempore Reasons accompanying these orders to Legal Aid Queensland, the Attorney-General (Commonwealth and State), the Queensland Office of Public Advocate/Adult Guardian (however so named) or any other relevant department or organisation for the purposes of pursuing the appointment of a litigation guardian for the father.
AND THE COURT NOTES THAT:
A.In the event any parties have difficulties with their grant of legal aid, they are at liberty to write to chambers by email (via …@…) (copying the other parties) identifying the problem and suggesting a solution.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Blum & Wolff has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons, which I will correct from the transcript for grammatical errors and to make the spoken word more amendable to reading.
X was born in 2009 and is thus 15, turning 16 this year. Y was born in 2010 and is 14, turning 15 this year. Z’s birthday is in 2003, and he is 12 years old (“the children”).
The children have not seen their father since 2020 when he was charged with serious child sex offences involving a child or children other than these [children the subject of this parenting litigation]. Eventually, those criminal proceedings were discontinued after a finding by the Mental Health Tribunal that the father did not have capacity to stand trial.
There have been numerous court appearances concerning the father's ability to participate in these proceedings. The earlier such court orders were awaiting the outcome of the father's serious criminal proceedings, but the great majority in recent times have concerned the plight of finding a litigation guardian for the father in a parenting matter where: no appropriate family or friend is available; the father has no funds; and, Legal Aid has said no to funding a professional, as in paid, litigation guardian.
I contrast the position we have in this parenting matter to property matters where, because there is a source of funds for a professional, as in paid, litigation guardian, family law solicitors will often engage.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) make it plain that a litigation guardian is able to be remunerated, and so those people needing a litigation guardian, who have money or a pool of assets, are able to participate in the litigation process. Those who do not cannot, notwithstanding that Australia is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (“the Convention”), which Australia signed on 17 July 2018. Articles 12 and 13 provide as follows:
Article 12
Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
Article 13
Access to justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative arid other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
Here, the father, through his disability, has neither equality before the law nor has access to justice. It is common ground that the father lacks capacity and there is medical evidence to that effect before me. It is also common ground between everybody at the bar table that the father needs a litigation guardian.
In the meantime, the mother has an application, which she wishes to prosecute. She seeks [final] live with and decision-making orders, although she has had such [interim] orders in her favour since 2018. She also seeks restraints against the father and a change of name for the children from the father's name to her name as per her other children.
BACKGROUND
As best I can work out, the parties commenced cohabitation in 2008. They have not married and, as best I understand it, separated on a final basis in January 2012.
There are the three subject children in these proceedings, and I have already identified them by name and their dates of birth. They live with the mother full time and have not seen their father since 2020 when he was charged with offences against children who are not the subject of these proceedings.
The mother initially filed proceedings in mid-October 2021. As required by a recent order, she amended her application on 17 January 2025 and filed an affidavit that went with it. With respect to the children's names, she has been able to make many accommodations to have the children known, in fact, if not at law, with the last name of Blum. That sits well with the last name of her other children, who are not subject to these proceedings.
A psychological report of the father was filed on 6 June 2024. Doing my best to understand that, it reveals his IQ score was in extremely low range and that supports the conclusion, to which all agree, that the father: needs a litigation guardian; would have limited capacity to instruct his lawyers; would only have a limited understanding of all facts and choices involved; would struggle to effectively weigh up the consequences to him and his family; and, would be unlikely to be able to communicate same. I note that the definition of capacity that was used there [in the report] seems to be more akin to what is used in the Queensland Civil and Administrative Tribunal (QCAT), that is, the Guardianship and Administration Act 2000 (Qld) definition of capacity, but it sits comfortably well with the common law understanding of capacity and what is said in the Rules.
There is a current application in QCAT for the appointment of a guardian for the father. Apparently, that matter is going to be heard in March of this year.
COURT APPEARANCES
Numerous orders have been made in this matter. For example:
(a)In December 2018, an order was made for the children to live with the mother, and she have what was then called sole parental responsibility;
(b)On 2 February 2022, a Senior Judicial Registrar requested Legal Aid Queensland provide the father with funding;
(c)On 8 April 2022, the matter was adjourned because of the father's pending criminal proceedings;
(d)On 21 September 2022, a litigation guardian application for the father was required to be filed by 12 October [2022], and there begins the quandary that everybody finds themselves in now. The father does not have the means to fund a private litigation guardian, nor does he have appropriate family or friends who could otherwise fill that role;
(e)The matter was back again on 18 November 2022, and the file was allocated back to Legal Aid to help find a litigation guardian;
(f)On 9 December 2022, another order was made with a notation that the father's new solicitor was looking for a litigation guardian;
(g)On 17 February 2023, the matter was adjourned because the father's solicitor was still looking for a litigation guardian. When I say "still", I do not mean that in any critical way. I just use the word to highlight the difficulties that matters such as these present;
(h)On 16 May 2023, the matter was adjourned, and there was a notation to the effect that the solicitor [for the father] said the father had no capacity to give instructions. Again, that highlights the need for a litigation guardian;
(i)On 3 July 2023, the matter was again adjourned, and Legal Aid said they had no funding available for a professional litigation guardian. By professional, I mean one who is paid;
(j)On 1 September 2023, the matter was adjourned, so there could be an assessment of the father's capacity;
(k)On 22 January 2024, the matter was administratively adjourned because the search for the litigation guardian was still on-foot;
(l)On 18 April 2024, the matter was administratively adjourned because of the QCAT application for a litigation guardian. That is getting on to almost a year ago now;
(m)On the 6 June 2024 Order, it was noted the QCAT application was on foot and the [father’s] criminal proceedings were not progressing because the Mental Health Tribunal had determined the father was not competent to stand trial;
(n)On 16 September 2024, further orders were made for the mother to file an Amended Initiating Application and an affidavit, which she has done, and for the Independent Children’s Lawyer (“ICL”) to file an affidavit, which he has done. He filed that late, but given he had to coordinate speaking with the children, I have no difficulty with the late filing, and no one takes any issue with it. The older two children have wishes about their last names, but really, they are at an age where they can call themselves whatever they like, in fact, if not yet at law.
THE RULES
The Rules have long provided for litigation guardians and, the concept is one that dates back a considerable period of time.
Rule 3.12 is about a person who needs a litigation guardian. It is common ground the father needs one here, and I am satisfied of that given the psychological report that is before me. Rule 3.13 is about starting, continuing, defending or inclusion in a proceeding where a litigation guardian is needed. Essentially, the litigation guardian stands in the shoes of the party who needs it, but the quest to appoint one in this case has been illusory so far.
Rule 3.14 is about who may be a litigation guardian. It cannot be just anyone. It has to be an adult who has no interest in the proceedings adverse to the interests of, in this case, the father and can fairly and competently conduct the proceeding for the person needing the litigation guardian. I pause to observe that is why, in property proceedings, many family law solicitors honourably and appropriately take on that task.
Rule 13.15 deals with the appointment of a litigation guardian and removal of one. We are not even at that point yet.
Rule 3.16 is called “Manager of the affairs of a party”. That includes what is called in Queensland, a ‘guardian’ or an ‘administrator’ for a party - a guardian being appointed by QCAT for personal matters, and an administrator being appointed for financial matters.
The rule [r 3.16] also refers, in subrule (3), to the Court requesting the Attorney-General to appoint a person to be the manager of the affairs of a party. I have not been able to find a single case where an Attorney-General - and I have looked back for two and a half decades - has been able to propose a person as manager of the affairs of a party.
I really do not understand the purpose of this rule because it is very hard to see how an Attorney-General would know who would be an appropriate, particular person to propose, be it in Brisbane, in City B, in City D or in City C. I have also, as I said, not discovered any cases where such an appointment has been made. No approach by this court has been made to the Attorney-General, and I see it futile to do so. In saying so, I am in no way critical of successive Attorneys-General or their department. For the reasons I have indicated, it does not seem to be a very practical rule where the Attorney-General would need to be able to identify a suitable, specific person.
This is the framework in which we find ourselves.
MATERIAL
The mother filed her Amended Initiating Application and affidavit as required on 17 January [2025]. The ICL filed an affidavit deposing to what the children have to say about their last names. A paralegal in the father's solicitor's office filed an affidavit last year that attached the psychological report [about his lack of capacity].
DISCUSSION AND DISPOSITION
Earlier orders in this matter raised a dismissal of the father's case, essentially, it seems, for want of prosecution. But, as I discussed with everybody at the bar table, I struggle with the idea that the inability to find a litigation guardian is of the father's doing, such that it could be said that he has failed to prosecute his case.
I also struggle with the idea, as had been noted in earlier orders, that this matter could be heard on an undefended basis, again for the same problem that an undefended hearing is usually where somebody wilfully thumbs their nose at attending proceedings, as is their right. All that is required is for someone with capacity to know of the proceedings and choose not to participate.
Instead, where we find ourselves today is a poor reflection on the gap in funding, since time immemorial, for those who need a litigation guardian and do not have the funds to pay.
This lack of funding for people with disabilities, respectfully, fails to make good on Australia's obligations under Articles 12 and 13 of the Convention on the Rights of People with Disabilities. Putting the Convention aside, it has been a long-cherished right of all persons to be heard, which well pre-dates the Convention that created a body of international law post-World War II.
Indeed, it was said, albeit in an administrative law context, in Re Minister for Immigration, Multicultural Affairs; Re;Ex parte Lam (2003) 214 CLR 1 by Callinan J of the High Court at [140]:
Natural justice by giving a right to be heard has long been the law of many civilised societies.
His Honour went on to quote this:
That no man [as was the case then] is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the scriptures, mentioned by St Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden.
His Honour was citing Stanley de Smith, Harry Woolf and Jeffery Jowell in “Judicial Review Administrative Action”, Sweet & Maxwell, fifth edition, 1995, at pages 378 to 379.
The father's many appearances in this matter indicate he wishes to be heard, but due to his disability, he cannot give instructions. In the meantime, the mother has a legitimate case to be heard too. However, she has an order of 13 December 2018, which was confirmed to be still in place, for the children to live with her. She has what was then a sole parental responsibility order of the same date, which was confirmed to me by Ms Cox to still be in place.
She seeks restraints against the father. Although he has tried to contact the children, there is no evidence before me that he has, for example, turned up at their school or turned up at her doorstep. For such a prohibition sought against a person, that person ought be heard. But I also note that the mother would have access to the police should she have an immediate need for protection. I also have no doubt, given the ingenuity to which she deposes to make things happen (for example, the children's last names) that she would have protective measures in place at the children's school/s.
The mother also has a perfectly legitimate case that she wishes to be heard with respect to changing the children’s last names. But, through her ingenuity and given the children's ages (particularly the older two) the children use, in fact, if not at law, the name that they wish to be known by in many circumstances. But again, the father ought to be heard in relation to that [final order sought by her].
Sections 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) speak to the efficient disposition of matters. I do not consider that continuing to call this matter on two to three times a year is efficient for either the parties, turning up time after time, to tell me nothing has changed, nor do I consider it an efficient use of the Court's resources. As I discussed with the parties, I intend to stay this matter, which means the matter has not ended, but to stay it until a person applies on the father's behalf for an interlocutory order to be appointed as litigation guardian in relation to this proceeding.
I make it clear that that does not end the matter, and thus I would anticipate the parties' grants of legal aid will continue. What it means though is that the parties’ and Legal Aid's resources will be preserved and the Court's resources will be preserved until there is an application for a litigation guardian. It is agreed by everybody that nothing can really happen until then.
It may well be that if a litigation guardian comes to the fore and is appointed, then the matter may proceed by way of a [final] consent order. Accordingly, should a litigation guardian be appointed, I will make my usual order to the effect that if the parties (including the litigation guardian) reach agreement [on parenting orders], then they are at liberty to send a proposed Minute of final orders to chambers, which I will consider.
Equally, I am content that if an application to appoint a litigation guardian is filed and the parties are in agreement, then they can jointly notify my Chambers that they are content for me to consider the application to appoint an appropriate litigation guardian in chambers.
I am doing my best to try and conserve the parties need to come back to Court without there being, if I can use the colloquial, a return on the investment in doing so. Equally, I am minded to promote the efficient use of Court resources and what ss 67 and 68 of the Act say.
Then, it seems to me, if all parties agree on the identity of the litigation guardian and consent to me considering that in chambers, then, [upon appointment] the path may be open for the matter to settle on a final basis.
Returning to the idea of a stay, the Court has inherent power to stay proceedings as part of its power to regulate its affairs and for the due administration of justice.
Staying the order in the way that I am going to is not a parenting order, but I also do not consider it in the children's best interests for their residential parent, the mother, to keep coming to Court for no particular purpose. I also do not consider it appropriate for the taxpayers of Australia to be funding a diligent ICL to turn up time and time again, and equally, Ms Secomb, for the father, to turn up time and time again, until and unless we actually have something of substance to talk about. Accordingly, I will stay the matter until an Application in a Proceeding is filed on behalf of the father for the appointment of a litigation guardian with an affidavit that addresses the matters set out in the Rules.
I will also make an order to the effect that if the parties are agreed [on the litigation guardian], then they can jointly advise my chambers and if they also consent to me considering such an order in the chambers. I am also going to make an order that the parties (including the father's litigation guardian) will be at liberty, if they can come to terms, to send a proposed final Minute of consent orders to my chambers with some brief dot points as to why it would be in the children's best interests.
Progressing the matter in this way means the father's right to be heard is preserved and the mother also has relief from Court attendances. Although this is not a best interests’ decision, I am well conscious that there are three children involved in this matter; the stay means they can have a semblance of no-changes-through-litigation until a litigation guardian is found. The children will remain living with the mother and she has decision-making [powers].
The children's names have been changed, as I have said, in fact, if not in law. And if the matter ambles on much longer, each child will reach 18, and then they will be at liberty to do whatever they want to do with deed poll. Indeed, I would have thought these almost 16 year old and 15 year old children could call themselves whatever they like at this point in time, and everyone would abide by those wishes.
The mother’s and children's personal protection can be served. I appreciate the mother wishes a restraint, but her protection and the children's can be secured through the State Police.
This [the stay] is not an ideal outcome for anyone, but it is the best I can do to do justice to both parties and shielding the children from further fruitless appearances at Court, and with these fruitless appearances costing Legal Aid funding.
In hindsight, it may have been more economical for Legal Aid or some other funding source to have been provided to the father for a guardian many, many Orders ago, and the matter be dealt with then, but that is not what has happened. I accept, though, that Legal Aid Queensland's resources, like every Legal Aid around the nation, are stretched, and they have to make difficult funding decisions.
HOPES
The missing middle is well-known in Australia, where many people are “too rich” for Legal Aid, but “too poor” to privately fund litigation. And then there are the cases such as these, where the party's disability, their impecuniosity and lack of government funding means the father here cannot be heard, and the mother’s application thereby languishes.
I will make orders that all legal representatives have liberty to publish these reasons to Legal Aid Queensland, the [relevant] Attorneys-General, the Queensland Public Advocate/Adult Guardian (however they are now named) in the hope that funding might be found for an appropriate institutional person to be appointed as the father’s litigation guardian.
Nothing I say in these Reasons should be seen as criticism of Legal Aid. As I have mentioned, they have to make tough decisions. I am also in no way critical of any Attorney-General we have had in the last 20 or more years since the litigation guardian rules came into force, because I struggle to see how they [the Attorneys] could identify a specific, appropriate person to propose for appointment.
It is also not the answer to say already stretched community legal centre resources should be giving a person a right to be heard for free. Their resources, like everybody else, are strained.
The reality in this matter is where the children have not seen their father for five years, and given the ages of the children, the parenting dispute must be of very short compass - thus it would be hard to see how stepping into the shoes of the father as a litigation guardian would be in any way taxing on a professional litigation guardian.
For those reasons, I make the orders that I do.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 24 January 2025
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