Gaddy & Gaddy
[2022] FedCFamC2F 1544
Federal Circuit and Family Court of Australia
(DIVISION 2)
Gaddy & Gaddy [2022] FedCFamC2F 1544
File number(s): NCC 124 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – Parenting – where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – where the Mother opposed the appointment – where Father supported the application but in the event the application is dismissed sought that the defended hearing proceed – where the Court considers the Mother has capacity to instruct her legal representatives. Legislation: Family Law Act 1975 (Cth), Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Keir & Ramsay [2022] FedCFamC1F 362 (‘Keir & Ramsay’)
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (‘L v HREOC’)
Division: Division 2 Family Law Number of paragraphs: 63 Date of last submission/s: 10 November 2022 Date of hearing: 10 November 2022 Place: Newcastle Solicitor for the Applicant: Fielden & Associates – Family & Relationship Lawyer Solicitor for the Respondent: Self Represented Solicitor for the Independent Children’s Lawyer Legal Aid NSW – Newcastle Family Law ORDERS
NCC 124 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GADDY
Applicant
AND: MS GADDY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the Independent Children’s Lawyer on 2 November 2022 is dismissed.
2.By 12.00noon today the Independent Children’s Lawyer shall serve the following solicitors with a copy of the Judgment pronounced by the Court today –
(a)SCB Legal; and
(b)Inner West Solicitors Pty Ltd.
3.By 12.00noon today, an authorised officer of the Court shall provide a copy of the Orders and the Judgment pronounced by the Court today upon an authorised officer of Legal Aid NSW who is responsible for administering the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
4.Within 24 hours of being served with any Notice of Address for Service filed by a solicitor on behalf of the mother, the Independent Children’s Lawyer shall serve that solicitor with a copy of the Judgment pronounced by the Court today.
5.The four-day trial is confirmed to commence on Monday 5 December 2022.
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 Gaddy & Gaddy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
A four-day parenting trial has been listed to commence in just under four (4) weeks. Last week the Independent Children’s Lawyer filed an application seeking the appointment of a litigation guardian. The father supports the appointment, the mother does not and wants to instruct a solicitor to prepare for the trial. Should I appoint a litigation guardian for the mother or not?
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and, where possible, there will be an avoidance of the use of gendered pronouns.
The substantive proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth).[1] Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
[1] Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
The interlocutory proceedings invoke Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)[2] as well as the broader concept of the overarching purpose: see s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)[3].
[2] Unless otherwise specified, any reference to ‘the Rules’ or a subordinative legislative provision shall be a reference to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
[3] Unless otherwise specified, any reference to ‘the Court Act’ shall be a reference to the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The father, MR GADDY commenced the parenting proceedings in January 2021 and the mother, MS GADDY is the respondent in those proceedings.
There are three subject children –
(a)X who is 11 years of age;
(b)Y who is 9 years of age; and
(c)Z who is 5 years of age,
whom I shall collectively refer to as ‘the children’.
The children are independently represented by Carey Pearson (‘the ICL’).
PRECIS
As a result of the multiplicity of solicitors coming onto the record for the mother in recent months combined with the nature, volume and breadth of the publication of emails by the mother - the ICL filed an application in a proceeding on 2 November 2022 seeking various interlocutory orders, the majority of which went to the appointment of a litigation guardian for the mother.
For the reasons that follow, I will dismiss the ICL’s application and confirm the trial, which is set to commence on Monday 5 December 2022.
Because of what transpired during today’s hearing, I will direct that –
(a)my chambers provide a copy of the judgment to Legal Aid NSW; and
(b)the ICL provide a copy of the judgment to the two lawyers currently on the record for the mother; and
(c)the ICL provide a copy of the judgment to any lawyer who serves the ICL with a Notice of Address for Service on behalf of the mother.
In order to determine these issues, it is important that I traverse the applicable law.
THE APPLICABLE LAW – Litigation Guardian
Section 190 of the Court Act sets out the overarching purpose –
Section 190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a)the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Part 3.5 of the Rules, sets out those matters relevant to the appointment of a litigation guardian. Those rules of particular relevance are set out below –
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.
3.13 Starting, continuing, defending or inclusion in proceeding
(1) A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian.
(2) The litigation guardian of a party to a proceeding:
(a) must do anything required by these Rules to be done by the party; and
(b) may, for the benefit of the party, do anything permitted by these Rules to be done by the party.Note 1: A person may apply for an interlocutory order to be appointed as a litigation guardian in relation to a prospective proceeding (see rule 5.02(2)(b)).
Note 2: Rule 6.01(3) applies the duty of disclosure to a litigation guardian appointed under this Part.
Note 3: Rule 10.04(3) requires a litigation guardian seeking a consent order to file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.3.14 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person:
(a) is an adult; and
(b) has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c) can fairly and competently conduct the proceeding for the person needing the litigation guardian.
3.15 Appointment of litigation guardian
(1) A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2) The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
(3) A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4) The court may remove a litigation guardian at the request of the litigation guardian.
As observed by Campton J in Keir & Ramsay [2022] FedCFam1F 362 (‘Keir & Ramsay’) at [27] –
27.Inherent to the jurisdiction of the court is the necessity of the protection of the integrity of its own processes and to ensure litigants who are otherwise at a disadvantage are properly protected, and in so far as is necessary. Cast against the shadow of the expanding conflict in this case, it is fundamental that the parties to this litigation are focused in their endeavours consistent with the purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
When interpreting and applying the Rules and in the exercise or carrying out of any power conferred or duty imposed by the Rules, such action must occur in a manner that best promotes the overarching purpose: s 190(3) of the Court Act.
In addition, when doing so, I must also keep in mind that the substantive proceedings are about the children and therefore (pursuant to note 2 of s 190 of the Court Act) I must also have regard to s 69ZN which is set out below –
Section 69ZN - Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1:
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2:
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3:
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
Principle 4:
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5:
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In certain circumstances, s 102NA of the Act gives the court power to prohibit a party from personally cross-examining another witness party (usually their former spouse) where an allegation of violence is made as between the party and the witness party, the party wants to cross-examine the witness and another specified condition is found to apply in the circumstances of the case (for example there is a final family violence order in existence protecting the witness party from the party seeking to cross-examine them).
To support this power which in part (in my view) is to protect the processes of the Court by protecting vulnerable parties, the Commonwealth Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) was created. Funding for the Scheme is provided by the Commonwealth of Australia and administered in NSW by Legal Aid NSW. Eligibility to the Scheme is not means-tested and the allocation of a case is drawn from a panel of solicitors suitably qualified to carry out their duties.
As I indicated to the parties before reserving, the issue raised by the ICL’s application is complex and requires careful consideration.
THE EVIDENCE
The ICL read and/or relied upon the following documents without objection from either the father or the mother:
(a)Application in a proceeding filed 2 November 2022 – paragraphs 2 to 4 only[4];
(b)Affidavit of Carey Pearson filed 2 November 2022;
(c)Exhibit A – single expert psychiatric report of Dr B dated 11 October 2021 (sub-paragraph a on pages 33 and 34 of the report);
(d)Exhibit ICL1 – Outline of case filed by the ICL on 9 November 2022;
(e)Exhibit ICL2 – letter from the mother’s former treating psychiatrist, Dr C dated 6 September 2022;
(f)Exhibit ICL3 – tender bundle consisting of various emails from the mother and correspondence between the ICL and the Attorney-General’s Department (‘the AGD’) and the ICL and the NSW Law Society).
[4] Which for ease of reference will now be referred to as ‘the ICL’s application’
Neither the father nor the mother complied with the prescriptive directions I made in preparation for the urgent hearing of the ICL’s application.
As such, I was very mindful of the lack of procedural fairness being afforded to the mother, in the event that I permitted the father to seek the relief set out within his documents which went far and beyond the narrow constraints of the ICL’s application. In the end, having heard submissions for and against the father’s reliance on his late filed documents, I decided not to permit his reliance on any of the material, nor to consider the making of any other orders save and until the issue of the mother’s capacity was resolved. This rejection of the father’s evidence included the proposed tender of two supervised visit contact reports which demonstrably went to issues about the mother’s observed parenting capacity.
The mother had filed nothing. She submitted that she had documents that would show that despite various interventions about her with treating medical and therapeutic professionals, including staff from a local health district - all the written correspondence of her interactions supported her submission that no mental health diagnosis had been made or that her presentation during her interactions warranted any concerns.
The other parties were content to permit the mother to make this submission which the mother made –
(a)Firstly, to support her position that she had capacity to conduct these proceedings and/or instruct a lawyer in the conduct of the proceedings; and
(b)Secondly, to refute the diagnosis of Dr B and any inferences that may be drawn from the observations/opinions made by Dr C.
Before setting out a chronology of the parties’ circumstances I will canvas their proposals.
THE PARTIES’ PROPOSALS
The ICL informed the court that she no longer pressed paragraph 5 of her application which had regard to who should pay for the shortfall (if any) in the single expert’s expenses to give evidence at the trial.
As such, the ICL proposed two options for the appointment of a litigation guardian for the mother (in a self-executing consequential manner). It was submitted that if that relief was granted, and the mother could not (or would not) secure a person who consented to their appointment within the seven days the ICL’s relief gave her to do so - then in the immediate future, there was little to no prospect of either AGD or the NSW Law Society being able to find a litigation guardian for the mother. To be clear, only the AGD was nominated by the ICL as the agency to be charged with the task of finding a litigation guardian.
The ICL considered that if the clause about the AGD was triggered, then a procedural hearing should be conducted in the days following the expiration of the seven-day period for argument about whether the trial should be vacated and adjourned to a date that would accommodate the prospect of a litigation guardian coming on board.
The father supported the ICL’s relief but sought to add three documents to the bundle of material that should be sent to the AGD in the event that this cascading option was triggered because the mother could not find a suitable guardian.
The father opposed any notion that the trial be vacated if an order for a litigation guardian was unfulfilled, which brings up some fairly unattractive scenarios including –
(a)A panel solicitor allocated in accordance with the Scheme, being left in a quandary about whether or not to proceed with the trial preparation process as they are obliged to do pursuant to the Scheme;
(b)The hearing of a short-notice application for the freshly minted order for appointment being discharged, with such court event coming at very short notice before the trial because of the limited judicial resources available in the next four weeks; and
(c)Nonetheless, the mother remaining personally prohibited from cross-examining the father when she says that she wants to instruct a solicitor but may be unable to do so because of the relief being sought by the ICL which may have limited utility in its execution at short-notice.
None of these options were explored at too much depth because I still had yet to determine the mother’s capacity to conduct these proceedings.
All of these considerations are made on the background that the father and the mother were united on wanting to have the trial proceed. Their position is understandable given they have lived this litigation first hand since January 2021 and (frankly of more importance to me), so have their children to varying degrees given they have an ICL (which usually means they have met/spoken with that person) and in recent months the children have seen their living circumstances turned upside down by my decision for them to live full-time with the father and have only supervised time with the mother.
The mother had no written relief but orally opposed the application.
In circumstances where the trial is less than a month away, I made it clear during the hearing that my ability to make findings on contentious facts (such as Dr B’s diagnosis of the mother) were limited.
CHRONOLOGY
On 18 January 2021 the father commenced parenting proceedings seeking that the parents have equal shared parental responsibility, that the children live with him and that the children spend regularised time with the mother for two afternoons and three nights a fortnight during school terms and week-about time during school holidays increasing to substantial and significant time during school terms and week-about time on school holidays (upon Z commencing primary school).
On 11 May 2021, a two-year final apprehended domestic violence order was made protecting the father from the mother.
On 11 October 2021, Dr B diagnosed the mother has having a psychiatric disorder of bipolar affective disorder, current episode hypomanic with mood incongruent psychotic symptoms and anxious distress. The mother’s presentation was recorded as being superficially logical, plausible and coherent but as time went on the mother’s disorganised thinking became more pronounced. References to disordered and delusional thinking are recorded with one of the most concerning symptoms being her complete lack of insight into her mental illness.
On 10 February 2022, trial directions were made by Judge Betts which included an order made pursuant to s 102NA prohibiting the parties from personally cross-examining each other. In the context of the overarching purpose and the principles set out in s 69ZN, it is worth noting that as part of His Honour’s orders, the trial originally set down for August 2022 was vacated and adjourned to four (4) days commencing on 5 December 2022.
On 6 September 2022, Dr C wrote to the ICL and recorded that in August 2022, she met with the mother and said that whilst the mother expressed feeling overwhelmed by the legal processes, her presentation at interview was not abnormal in either her thought content or processing. Following that session, Dr C records receiving large amounts of legal documents and emails from the mother, some written directly to Dr C and others by way of circular copy. Dr C observes that when writing these emails the mother is clearly dysregulated but is unable to opine whether this dysregulated behaviour is a symptom of psychosis, mania or borderline traits/personality disorder or post-traumatic stress disorder. Overall, the sense I got from Dr C’s report is that the mother can at times be dysregulated and at other times she can function quite well.
On 13 September 2022, a telephone interlocutory hearing occurred. I made orders for the children to immediately be placed into the full-time care of the father and for the children to only have supervised time with the mother. Various injunctions were put in place and a recovery order was to lie in the registry for activation if the father could not collect the children from school. I vividly recall the hearing. The mother was tangential, dysregulated and incredibly distressed by what she was hearing being said about her parenting capacity and the risk she posed to her children. She was unnecessarily argumentative, overbearing and at times incoherent (due to her being unable to restrain herself from talking over the top of me and the other participants). Put simply, her conduct during the hearing had a bearing on my findings about the risk she posed to her children.
Since then, I have been told that as part of the Scheme three solicitors have filed Notices of Address for Service. The first solicitor remained on the record for nine days. The second solicitor has been (and remains) on the record since 27 September 2022, and the third solicitor filed a Notice of Address for Service last Friday. Bizarrely, this means that there are two solicitors now on the record for the mother. Hopefully by making an order for the ICL to serve both those solicitors with this Judgment, the impasse will be cured and one of the lawyers will withdraw.
The mother says that she has not spoken to one of the solicitors but that when she contacted the other firm, she was told not to call again.
The mother says that she is now employed by Fourtrees Lawyers, although in what capacity is unclear to me. The mother says that she intends to engage them privately to represent her at the trial because of her unhappiness with how lawyers are randomly allocated to her by the Scheme and her inability to promptly communicate and engage with them.
The mother says that she has the capacity to conduct the proceedings but would prefer to instruct a solicitor.
Included within exhibit ICL3, are emails sent by the mother to various persons including my associate’s email account and the email accounts of the ICL and the father. It was common ground that this is but a selection of emails taken from a vast amount of correspondence sent by the mother. The mother conceded she was the author of the tendered emails, that she had been told to stop doing this but had not, and that she now regrets the making and sending of those emails. The mother agreed that the contents of some if not all the emails “do not make sense”, submitting that she dictates them and then sends them. Reading the emails, they have a ‘stream of consciousness’ theme about them and certainly present a picture of dysregulation, at least at the time of writing and publication.
There was no evidence or submissions from either of the mother’s lawyers about whether they are having difficulties obtaining instructions from the mother. There was no evidence from the mother’s current treators going specifically to the issue of her capacity to conduct the proceedings and/or to instruct someone in the conduct of the proceedings.
The highest recent evidence I had was, as submitted by the father’s solicitor – that Dr C recommended against the mother acting for herself in legal proceedings, but the basis for that opinion/expression was not articulated and as I observed in court, I routinely make that suggestion to litigants in person who (for whatever reason) appear to be struggling with the process.
On 7 November 2022 both parties were to file their trial material. Regrettably, neither party has complied with that direction.
During the course of the hearing, the mother’s presentation was very different to her presentation at the September 2022 hearing.
The mother was polite and respectful and when at times she did interrupt, this was not done malevolently or rudely and was nothing over and above what usually happens with nervous litigants in person who do not fully understand how to conduct hearings.
On occasions the mother would raise her hand to show that she had something to say and/or started to talk whilst someone else addressed the Court, but on all occasions when asked to wait, her response was courteous, respectful and compliant. There was no doubt that the mother was tangential at times in not giving an on-point answer but rather diverting off to submissions about her parenting capacity. This divergent behaviour was not helped by some of the documents being sought to be relied upon by the father and/or the submissions sought to be made by the father’s solicitor which I found to be irrelevant because they conflated the capacity issue before me at this hearing with the parenting capacity issue that will be determined at the trial.
Overall, the mother presented her case well and made concessions (including expressing regret) about her behaviour at the September hearing and the emails that she acknowledged that she had sent and which formed part of exhibit ICL3.
ANALYSIS – litigation guardian
As I indicated to the parties before reserving after the hearing, the issue raised by the ICL’s application is complex and requires careful consideration.
As observed by Campton J in Keir & Ramsay it is incumbent on the Court to protect not only the integrity of its own processes but also to protect otherwise disadvantaged litigants in so far as is necessary.[5] Here the mother says she needs no such protection and wants the trial to proceed so that, from her perspective, she can “fight for her children” to come home to her.
[5] See also L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (‘L v HREOC’) at [25]
I must apply a presumption that a litigant is competent until the contrary is proved and in this case, the ICL (as the applicant) has the burden of proving otherwise - although I acknowledge that I heard submissions from the father’s solicitor in support of the ICL’s relief.[6]
[6] See n 5
Usually the court will require medical evidence concerning the issue of capacity.[7]
[7] L v HREOC at [27]
In my view, the medical evidence relied upon by the ICL to support a finding of the mother’s incompetency to manage her affairs (insofar as the conduct of these proceedings is concerned) is unsatisfactory –
(a)Firstly, because the mother disputes Dr B’s opinion and the basis for the opinion is untested;
(b)Secondly, because Dr B’s report is over 12 months old and does not directly address the issue of the mother’s capacity to conduct these proceedings but rather the report goes to issues raised in the substantive parenting proceedings;
(c)Thirdly, Dr C says that whilst the mother’s emails (which must pre-date the bundle included in exhibit ICL3) demonstrate dysregulated thoughts, Dr C also says that the mother’s presentation can be variable and the mother can present and function normally; and
(d)Finally there is no medical evidence that specifically addresses the finding I am being invited to make pursuant to r 3.12(1)(b).
To make the finding agitated by the ICL and the father, based on the medical evidence before me would be unsafe because at the hearing, the mother presented just as Dr C recorded she has the capacity to do so – logical, coherent but at times divergent about her fears for the children’s future. By inference, it was open to me to find that the mother can behave similarly when giving instructions for the conduct of the proceedings (in this case the impending trial) and/or she has to conduct the trial herself.
Is there some other basis upon which I could rebut the presumption that the mother has competence? I don’t think the evidence about this is sufficiently compelling for me to make that finding on the balance of probabilities. This is because –
(a)I have no direct evidence from her lawyers that they are having issues with gaining the mother’s instructions to conduct the proceedings (when it is open to them to do so, particularly given they have been served with the ICL’s application and were aware of the hearing). Instead, I have the unusual situation of two lawyers being on the record for the mother and no trial material filed by either party (making it somewhat difficult for me to accept a submission that the failure by the mother is caused by her incapacity to instruct when I am not asked to look unfavourably upon the father for his similar failing);
(b)I have the mother’s expressions of frustration about how the Scheme operates and her intention to privately instruct a solicitor, who it must be noted, could have been so instructed before today’s hearing and thus assisted the mother’s defence of the ICL’s application; and
(c)The mother conducted herself appropriately today - yes she did become teary and tangential at times, but she managed her divergence and understandable emotions quickly and was able to re-gather her thoughts and move on. In addition, I apprehend from her submissions that she has reflected on her practice of sending ‘stream of consciousness’ emails and hopefully will now cease and desist - if for no other reasons so that she does not give the other parties any more documents which they may seek to weaponise against her at the trial and to allow her solicitor to not be distracted by her emails and to instead focus on trial preparation.
In making my determination I must also take into account the overarching purpose[8] and the principles to be applied to child-related proceedings.[9]
[8] Section 190 of the Court Act
[9] Section 69ZN of the Act
In my view, the dismissal of the ICL’s application, given the mother’s submissions about her willingness to instruct a solicitor and/or her capacity to conduct the proceedings herself (albeit this is not her preference) will support the efficient use of the court’s resources and provide for the just determination of the dispute as quickly, inexpensively and efficiently as possible. If I do otherwise, the future pathway for this litigation appears to be filled with uncertainty.
Furthermore, when I have regard to s 69ZN and in particular principles 1 and 5 - it is my view that in dismissing the ICL’s application I will be ensuring that these proceedings conclude in a timely manner and without undue delay, in circumstances where this is the second time a trial has been listed and the parents are united that the children need the matter to come to a conclusion. This is particularly so given their sudden removal from the mother’s home in September 2022 in circumstances where she continues to agitate for them to come back to her. Whether this is the outcome of the trial remains to be seen, but the children need finality.
For all the reasons set out above I am satisfied that the orders I will make are in the interests of justice and are otherwise proper.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 11 November 2022
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