Ganesh and Ganesh

[2019] FamCA 762

FAMILY COURT OF AUSTRALIA

GANESH & GANESH [2019] FamCA 762

FAMILY LAW – CHILDREN – Appointment of a case guardian – Where mother is a person with a disability – Where all attempts to identify a person suitable to be appointed as a case guardian have been exhausted – Where it is requested that the Attorney-General nominate a person to be a case guardian.

Family Law Rules 2004 (Cth) rr 6.08, 6.09, 6.10, 6.11

APPLICANT: Ms A Ganesh

RESPONDENT: Ms B Ganesh

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Family Law

FILE NUMBER: PAC 2453 of 2018

DATE DELIVERED: 22 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 14 October 2109

REPRESENTATION

SOLICITOR FOR THE APPLICANT: AS Family Lawyers

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR FOR THE 2ND RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Family Law

Orders

THE COURT NOTES

A.     I am of the opinion that a suitable person is not available for appointment of a case guardian of the mother who has a disability.

THE COURT ORDERS THAT

1. Pursuant to 6.11 of the Family Law Rules, that the Attorney General be requested to nominate in writing a person to be a case guardian.

2. In the event that the person nominated to be a case guardian in the proceedings consents to act in relation to the person with a disability then that person is to comply with Rule 6.11(2) and Rule 6.12 within 14 days of consenting to act.

THE COURT NOTES

B.     A short judgment in relation to the non-availability of a suitable person will be delivered in chambers and provided to the Attorney General.

THE COURT ORDERS THAT

1. A copy of these orders is to be provided to Ms C at the Commonwealth Attorney General Policy and Legislation Family Law Branch.

1. Once a case guardian has been nominated that person is to do all things required to participate in Family Dispute Resolution to be convened by the Independent Children’s Lawyer and in the event that the matter is resolved and the parties seek orders to be made with their consent, the Independent Children’s Lawyer has liberty to forward such orders to chambers. 

2. In the event agreement is not reached in relation to final orders the Independent Children’s Lawyer or the Applicant’s legal representative have liberty to relist the matter for the purposes of making trial directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganesh & Ganesh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2453  of 2018

Ms A Ganesh

Applicant

And

Ms B Ganesh

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the course of parenting proceedings relating to a 14 year old severely disabled child instituted by the child’s sister it is apparent that the child’s mother is a person with a disability.

2. The Family Law Rules 2004 (Cth) (“the Rules”) require that a person with a disability continue or respond to a case only by a case guardian.

3. All attempts to identify a person suitable to be appointed as a case guardian have been exhausted.  

4. In the foregoing circumstances on 14 October 2019 I made an order requesting that the Attorney-General nominate in writing a person to be a case guardian and other ancillary orders and indicated that I would publish my Reasons for that order.

5. These are those Reasons.

Background

1. The Applicant for parenting orders in relation to a 14 year old severally disabled child (“the child”) is the child’s 29 year eldest sister. The father of the child is deceased and the Respondent to the application is the child’s mother (“the mother”). The child’s other older sister (“the other sister”) aged 27 is also named as a Respondent to the proceedings as she lived in the same household as the child and the mother and was said to have been involved in some way in the care of the child when the proceedings were initiated. The other sister has not however engaged in these proceedings in any way and no longer lives in the same household as the child.

2. The orders sought by the Applicant are that she have sole parental responsibility for the child and that the child live with her. The Applicant also seeks other orders including restraints upon the other sister details of which are not necessary to be set out for the purposes of these Reasons.

3. At the time the proceedings were commenced in June 2018 the child was living with the mother and the other sister in the home in which she had been raised. The child’s father who had considerable involvement in the care of the child died in December 2017. It is the Applicant’s case that although she had moved from the family home in about 2010 she became heavily involved in the care of the child following the father’s illness in August 2017 and particularly after his death a few months later.

4. It is the Applicant’s case that the child was exposed to many risks in the care of the mother and the other sister and had been neglected since the father’s death. The Applicant contends that this situation was likely to continue for so long as the child remained in the care of the other sister and the mother. The Applicant also contends that it was difficult for her to take steps to assist the child and address the child’s neglect as she had a strained and difficult relationship with the other sister who is diagnosed with schizophrenia and behaved in an aggressive manner towards the Applicant to the extent that an apprehended domestic violence order (“ADVO”) had been made against the other sister for the protection of the Applicant.

5. In January 2018 the Applicant reported her concerns to the Department then known as Family and Community Services (“the Department”) and despite some intervention with the family the Department saw no need to continue their involvement.

6. At an early stage in the proceedings when the mother and the other sister were not engaged but grave concerns were held about the well-being of the child in their care an order was made for the other sister to deliver the child to Child Dispute Services at this court. When she failed to do so a Recovery order was made for the recovery of the child and her delivery to the Applicant. Ultimately it was not necessary for the police to become involved with the recovery of the child. She was able to be passed into the care of the Applicant where she has continued to reside since around August 2018 in accordance with orders made by this court. The mother has subsequently moved to also reside with the Applicant and the child.

7. According to all available information including external agencies such as the child’s school the child has flourished in the care of the Applicant with some involvement by the mother.

The Mother

1. The Applicant for many years had concerns about the mother’s mental state and cognitive ability which became more marked following the death of the father. It had become apparent to the Applicant that the mother was unable to care for the child and play a role in the administration of the father’s estate. For this reason the Applicant initiated a guardianship process in the NSW Civil and Administrative Tribunal (“NCAT”) and in this context an assessment of the mother’s functioning was carried out on the recommendation of a psychiatrist.

2. In her report dated 5 February 2018 the psychologist expressed the opinion that the mother has limited intellectual capacity, lack of insight, impaired adaptive functioning skills and avoidant coping strategies which deem her functionally deficient in most areas of her life. The psychologist opined that the mother is incapable of making her own financial and lifestyle decisions.

3. The report was relied upon in the proceedings before NCAT which resulted in a Financial Management Order being made for the mother on 12 March 2018 and a Guardianship Order being made on 14 May 2018. Under the Financial Management Order the mother is subject to the management of the NSW Trustee and Guardian. The Public Guardian was appointed for the mother under the Guardianship Order initially for 12 months though I understand that it has been extended since that time.

4. Since the proceedings were initiated by the Applicant in June 2018 there have been numerous court events initially before a judge of the Federal Circuit Court and then following transfer to the Family Court of Australia on a number of other occasions.

5. The mother has appeared at only two of those court events including the most recent occasion on 14 October 2019. She was for some time difficult to engage in the proceedings.

6. An Independent Children’s Lawyer (“ICL”) has been appointed in the proceedings to represent the interests of the child and the Applicant is also legally represented. The older sister who is named as Second Respondent has not engaged in the proceedings at all and as it is clear that she has been aware of the proceedings for some time it is assumed that she is choosing not to participate.

7. The Public Guardian of NSW who is appointed for the mother under the Guardianship Order has also been generally aware of the proceedings and has attended court (though not as a representative for the mother) on a number of occasions.

The law and discussion

1. Rule 6.08 of the Rules provides that “a child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian”.

2. The Dictionary which forms part of the rules defines a “person with a disability” as a person who because of a physical or mental disability:

   a)does not understand the nature or possible consequences of the case; or

   b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

3. There is no provision for the case to be conducted by a person with a disability without a case guardian. This is to be contrasted with a case involving a child litigant where the Rule does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.

4. The proceedings have reached a stage where it seems likely that they will be resolved through family dispute resolution to be facilitated by the ICL. In the event that the parties consent to a particular parenting arrangement through this process then orders will be sought to be made by the court in accordance with that agreement. However, the mother as a person with a disability cannot even meaningfully engage in the dispute resolution process unless a case guardian is appointed for her.

5. The matters in respect of which orders are sought by the Applicant include an order that she have sole parental responsibility for the child. In the absence of such an order the mother holds parental responsibility for the child so it is a matter of some consequence that the mother meaningfully engages in the legal process.

6. Having regard to the orders made by NCAT and the evidence upon which they were based there appears no doubt that the mother is a person with a disability as defined in the Rules. Her presentation at court on the one occasion that she engaged in an extremely limited way were such that I am satisfied that she is not capable of adequately conducting or giving adequate instructions for the conduct of the case.

7. Rule 6.10(2) of the Rules provides that a person who is the manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has been appointed manager of the affairs of the party and states that the person consents to being appointed as the case guardian of the party. The Public Guardian who is responsible for managing the affairs of the mother has indicated that they unable to act as case guardian and thus have not provided the requisite consent.

8. Considerable efforts have been made by a number of agencies and by the legal representatives for the child and the Applicant to obtain assistance for the mother. A grant of Legal Aid for the proceedings was sought but has been declined. The Public Guardian who is not able to act as case guardian in the proceedings also made enquiries with the NSW Department of Justice Guardian ad Litem panel but they were unable to assist in providing a Guardian ad Litem in these proceedings.

9. The ICL has also made enquiries of a number of community legal centres and non-government agencies including the Women’s Legal Service, Intellectual Disability Rights Service NSW and the Australian Centre for Disability Law, none of which were able to provide a case guardian to represent the mother.

10. There are also no other family members who may act as a case guardian. The only other family member is the older sister who herself may suffer from a disability, is disengaged in the proceedings, and may be considered a person who has an interest adverse to the interest of the mother. For these reasons pursuant to Rule 6.09 of the Rules she is not someone who can act as a case guardian in the proceedings.

11. Rule 6.11 of the Rules provides that “if in the opinion of the court a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney-General nominate, in writing, a person to be a case guardian.”

12. Having regard to the foregoing it is clear that a suitable person is not available for appointment as a case guardian of the mother. In these circumstances and as the proceedings cannot be resolved without a case guardian I request that the Attorney-General nominate in writing a person to be a case guardian.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 October 2019.

Associate: 

Date:  22 October 2019