Ganesh & Ganesh
[2022] FedCFamC1F 794
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ganesh & Ganesh [2022] FedCFamC1F 794
File number(s): PAC 2598 of 2022 Judgment of: RIETHMULLER J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Litigation Guardian – Where the respondent mother has a New South Wales Civil and Administrative Tribunal appointed guardian to manage her financial affairs – Incapacity to provide instructions – Respondent diagnosed with cognitive and intellectual disability
FAMILY LAW – Adult child maintenance – Applicant adult child currently 31 years of age undertaking tertiary studies – Capacity of parent to provide maintenance – Father deceased – Respondent mother in receipt of social security payments, suffers from intellectual impairments, and has a guardian appointed by NCAT to manage her financial affairs – Where the mother has a child under 18 years of age who suffers severe disabilities – Unable to establish need for support –Applicant to pay respondent’s costs
Legislation: Family Law Act 1975 (Cth) ss 66L, 117 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 2 September 2022 Place: Parramatta Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Langenberg Law Solicitor for the Respondent: King Legal ORDERS
PAC 2598 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS D GANESH
Applicant
AND: MS B GANESH
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
2 September 2022
THE COURT ORDERS THAT:
1.Ms A Ganesh be appointed as the litigation guardian for the respondent mother.
2.The Final Orders Application filed 17 May 2022 be dismissed.
3.The applicant pay the respondent’s costs of the proceedings.
The Court notes that:
A.It is recommended that the Legal Aid Commission consider not seeking to recover costs from the respondent mother, to the extent that they may exceed any costs recovered by her from the applicant daughter.
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 Ganesh & Ganesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
These proceedings relate to an Amended Initiating Application filed by the applicant on 8 June 2022 seeking maintenance as an adult child from her mother, the respondent to the proceedings.
On 1 July 2022, the respondent filed an Application in a Proceeding seeking, among other things, that a litigation guardian be appointed for the respondent mother.
Background
The applicant is 31 years of age and currently pursuing a tertiary degree at E University. She is residing at a property located in Suburb F in New South Wales, which is a modest home, said to be worth around $800,000, and that home is the property of the respondent (“the home”).
The respondent mother was born in Country G in 1965 and is 57 years of age. In early 2018, the respondent mother was diagnosed with a cognitive and intellectual disability. The respondent lives in rental accommodation with her eldest daughter (33 years of age), and the youngest child, who is 17 years of age, severely disabled.
The applicant’s father, the respondent’s husband, passed away in 2017.
Application seeking appointment of litigation guardian
In this matter, an application is made for a litigation guardian to be appointed for the respondent, Ms B Ganesh. The guardian that is sought to be appointed is one of the respondent's daughters, Ms A Ganesh (“the eldest daughter”), and she has also been appointed to manage the financial affairs of the respondent by the New South Wales Civil and Administrative Tribunal (“NCAT”). The assessment of the respondent which led to the making of the NCAT orders has been provided to me and marked Exhibit 1 (Psychological Assessment Report dated early 2018, prepared by a registered psychologist). It confirms that in the opinion of the registered psychologist who prepared the report, the respondent is incapable of making her own financial and lifestyle decisions and would need the support and guidance of professional intervention to address her financial and other lifestyle issues.
It seems that the respondent has limited intellectual capacity, a lack of insight, impaired adaptive functioning skills, avoidant coping strategies, and it results in her being functionally deficient in most areas of her life. The psychologist concludes that the respondent is clearly a vulnerable woman who can be an easy target of manipulation and exploitation. To add to the respondent’s difficulties, her long-term partner has died in relatively recent years, which no doubt did not ease any of the difficulties she confronts. In the circumstances, I am persuaded that the respondent is a person in need of a litigation guardian for the proceedings before this Court.
The eldest daughter is a person who is emotionally close to the respondent and most likely to have the respondent’s interests at heart, given that she is her daughter and that she is involved in caring for her mother. It does not appear to me, and it is not argued by other parties, that the eldest daughter has an interest in the proceedings that would conflict with that of her mother. I also note that as the respondent is currently living with and being cared for by her eldest daughter, who has been appointed by NCAT to manage her financial affairs, and is an appropriate person to appoint as her litigation guardian. In those circumstances and in light of the consent of the eldest daughter, I therefore appoint the eldest daughter the litigation guardian for the respondent mother.
Adult child maintenance
The applicant says that she requires adult child maintenance to complete her education.
The material filed by the applicant does not set out what education she has engaged in prior to her 31st year of age, however, it seems to me that she must have at least obtained a tertiary qualification to be enrolled in her current tertiary studies. Given the applicant’s age, and the nature of her studies, it is difficult to understand the applicant’s case that she requires maintenance to complete her education. I note that the applicant is also currently working for herself and does not appear to be receiving any social security benefits, at least as declared in her Financial Statement filed 17 May 2022.
The applicant, therefore, appears to be independently capable of caring for herself and pursuing further, higher level studies. The application in this respect does not appear to me to set out an arguable case for need on the basis of completion of education.
The applicant also asks for maintenance on the basis of need due to an inability to support herself because of mental health difficulties.
In this regard, the applicant does not set out or annex a report from an expert psychiatrist, but rather, a psychological and mental health assessment report prepared by a mental health social worker in early 2022 (addressed to the presiding judge of the Supreme Court of New South Wales).
The early 2022 report does not appear to diagnose the applicant with a condition that causes an inability to work or support herself. It says that it is apparent from clinical assessment that she is experiencing several mental health conditions and will benefit from a “focused therapeutic treatment through continued mental health counselling”. The early 2022 report says the applicant is suffering from severe depressed moods, stress and anxiety consistent with cognitive impairment. However, given that the applicant is studying at a tertiary level at E University, it is difficult to accept that she is, in fact, suffering any significant cognitive impairment.
The application, therefore, does not appear to have an arguable basis for satisfying s 66L of the Family Law Act 1975 (Cth) in respect of the applicant having need for support to either complete her education or due to an inability to support herself.
Turning, then, to the second limb of any application for adult child maintenance, one must consider the capacity of the parents to support the adult child. In this case, the applicant's father is deceased. The applicant's mother (the respondent) suffers from intellectual impairments and is unable to care for herself. The mother is represented in these proceedings by a litigation guardian and has a guardian generally appointed by NCAT.
The mother's income is solely derived from social security benefits by way of a disability pension and support from the National Disability Insurance Scheme (“NDIS”). The mother also has the care of a child who is 17 years of age, which she carries out with the assistance of the eldest daughter, who is her guardian (the applicant is the middle daughter of the respondent’s three children). The youngest daughter, who is under 18 years of age, requires day to day care, suffering severe disabilities. The mother's only source of income is from her social security benefits and NDIS.
The mother's only asset, as disclosed in the material, is the modestly valued home located in Suburb F NSW that the applicant currently occupies. It is simply not arguable that a person who is living on social security with nothing but a modestly priced home (at least by Sydney, NSW standards) could have the capacity to care for an adult child whilst they study at 31 years of age.
This situation is made worse in this case where the respondent has a child who is under 18 years of age and suffering severe disabilities has to be supported, as well, and would certainly use up any resources that it could be thought that the mother might have, and in this respect, that includes the mother's ability to house that child in her own home.
Unfortunately, it appears that the applicant took possession of the respondent’s home and then, through a number of transactions, attempted to have the mother transfer the home to her. Those transactions have been set aside by the Supreme Court of NSW: [citations omitted for anonymity]. It appears that the result of the Supreme Court proceedings is not only that the mother has had her home restored to her (fortunately) but that the applicant in these proceedings now has a significant liability in costs owed to the mother due to the cost of the NSW Supreme Court proceedings.
On the material before me, there is no arguable basis that the mother has any capacity to financially support the applicant in this case. I am of the view that the matter should be summarily dismissed.
Over the luncheon adjournment, the applicant has thought better of her application and seeks to withdraw it. Unsurprisingly, the respondent seeks that there be a dismissal order. In my view, it is appropriate in this case that I formally dismiss the application on the basis that it ought to be summarily dismissed and I make orders accordingly.
Costs
Costs in family law matters are dealt with under s 117 of the Family Law Act 1975 (Cth). I take into account in this case that the applicant has been wholly unsuccessful. The applicant has held the mother out of her own property for some time. The applicant appears to have little or no assets and, I am told, has filed for bankruptcy. The mother has no income other than social security and only a modest home. Legal Aid has lodged a caveat over the home to secure the Legal Aid funding provided to the mother, which has reached around $5,000 to date.
In the circumstances of this case, in my view, the application by the applicant daughter was, in substance, an abuse of process. It was bound to fail and could be seen as for no other purpose other than stalling her removal from the home and the restoration of the mother to her own home. It is appropriate in my view that the applicant pay the mother's costs at the Legal Aid scale. In these circumstances, I make an order that the applicant pay the respondent's costs as incurred with Legal Aid New South Wales.
Given the state of the finances of the parties, and the reality that this and the Supreme Court of NSW litigation have visited significant costs upon the mother (a person under significant disability with no assets and a severely disabled daughter to care for). There is a very real likelihood that any costs that the mother is forced to repay to Legal Aid may contribute towards forcing her to lose her home. In the circumstances, I take the unusual step of asking that the solicitor representing the mother pass on my recommendation to the Legal Aid Commission that they not pursue recovery of the Legal Aid grant from the mother, save to the extent that costs are paid by the applicant.
I therefore make an order that the applicant pay the respondent's costs of and incidental to the proceedings, and I make a notation that it is recommended that the Legal Aid Commission consider not seeking to recover costs from the respondent mother, to the extent that they may exceed any costs recovered by her from the applicant daughter.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 18 October 2022
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