Krupi & Krupi (No 4)
[2023] FedCFamC2F 1479
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Krupi & Krupi (No 4) [2023] FedCFamC2F 1479
File number(s): CAC 664 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – Parenting – Where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – Where the Applicant Father supported the application – Where the Mother opposed the appointment – Where the Court considered the capacity of the Mother to understand the nature and consequences of the proceedings – Application for appointment dismissed Legislation: Family Law Act1975 ss 69ZN, 69ZX, 101, 102D, 102E, 102NA
Federal Circuit and Family Court of Australia Act2021 s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.12, 3.14, 3.16
Cases cited: Allesch v Maunz [2000] HCA 40
Forster & Forster [2012] FamCAFC 47
Gaddy v Gaddy [2022] FedCFamC2F 1544
Oliver & Gall [2008] FMCAfam 164
Division: Division 2 Family Law Number of paragraphs: 31 Date of last submissions: 15 November 2023 Date of hearing: 15 November 2023 Place: Canberra Solicitor for the Applicant: Hijazi Curran Cameron Lawyers Respondent: Self-represented Counsel for the ICL: Ms Harders Independent Children’s Lawyer: Legal Aid ACT ORDERS
CAC 664 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KRUPI
ApplicantAND: MS KRUPI
RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The oral Application in a Proceeding brought by the Independent Children’s Lawyer on 15 November 2023 is hereby dismissed.
2.The final hearing is to proceed as listed and is to be conducted pursuant to the trial plan that shall be transmitted to the parties herewith.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD
These are ex-tempore reasons for Orders made following an application by the Independent Childrens Lawyer, supported by the father, that the mother is a person in need of a litigation guardian.
INTRODUCTION
For the mother’s sake, for the father’s sake, and above all else for X’s sake, these proceedings need to end and this is the forum in which that needs to happen. It is common ground that these proceedings have taken an increasingly heavy toll on the parties financially, emotionally, and psychologically. It is also common ground that whilst they remain on foot, X is unable to be shielded from them, and her exposure to them and the escalating conflict is of harm to her.
I am well satisfied that the mother understands the nature and possible consequences of the proceeding. I am less satisfied, but still satisfied, that the mother is capable of adequately conducting the proceeding. I say that because I well find that there have been times when the mother has not been capable of adequately conducting the proceeding. However:
(a)Firstly, the rule requires that the mother is capable of adequately conducting the proceeding. But adequately does not mean completely or effectively or satisfactorily or tolerably. Nor does it mean in a manner which the Court or social convention generally expects, nor does it mean in advancement of her own interests; and
(b)I interpret the term ‘proceeding’ in Rule 3.12 as to the whole of the proceeding. There are available measures which the court has taken and will continue to take, such as making Orders pursuant s 102NA, s 102D, s 102E, s 101 and s69ZX of the Family Law Act 1975 that have and I expect will be able to continue to protect the integrity of the proceedings and the court during those discrete moments where the mother, due to her challenging behaviour, is not capable of conducting parts of the proceedings.
For those and the reasons that follow, the ICL’s application for the appointment of a litigation guardian for the respondent will be dismissed.
BACKGROUND
There has been a multiplicity of solicitors coming on and off the record for the mother. There have been many applications in proceedings made by the mother and communications from her to the parties and the Court. An order was made prohibiting the mother from making any further interlocutory applications without leave of the court. This is the third time the matter has been listed for final hearing. On the last occasion it was adjourned following withdrawal of the mother’s legal representation on day one of the hearing.
On day one of this hearing, the matter was stood down until 2.00pm, at which time Counsel for the mother sought permission to cease to act for the Respondent mother. Over vociferous objection from the mother, permission was given, and the mother became self-represented.
At the commencement of day two of the final hearing, the ICL sought to raise a question about whether or not the mother needed a litigation guardian. The ICL made an application that the witness Dr B be interposed. Dr B was appointed as a single expert witness with respect to a psychiatric assessment of the mother and preparation of a report in response to terms of reference. He had conducted an assessment of the mother in January 2023 and completed his report in February 2023. All parties referred to that report in their case outline documents. The father supported the raising of the question and thereby the application. The mother opposed it.
MATERIALS RELIED UPON
The material that was adduced on the application was:
(a)Transcript of Proceedings of 14 November 2023 from 2.00pm;
(b)The mother’s Trial Affidavit of 1 November 2023;
(c)The father’s Trial Affidavit of 16 October 2023;
(d)The 18-page document entitled ‘Respondent Mother Key Dates for Case Outline – Briefly outline significant events in chronological order relevant to the issues to be determined by the Court’;
(e)The Report of Dr B of 17 February 2023, with reference to the documents relied upon for that report; and
(f)The Oral Evidence of Dr B on 15 November 2023.
(g)I have also had regard to the Outline of Case documents filed by all three parties.
Items (a) – (d) above were also provided to Dr B prior to his oral evidence.
As to the transcript, for any person that may have a requirement to have regard to it, I would encourage them to obtain an audio copy in order to have a full appreciation of that aspect of the proceeding.
THE EVIDENCE OF DR B
Dr B gave evidence which included that:
(a)On the preliminary question as to whether or not he felt he was able to provide an opinion as to rule 3.12(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, he gave a very lengthy response which included that:
(i)At the time of initial assessment, the mother did have those understandings. She had professional training and had been in the proceedings for some time. He was however concerned about her conduct including many aspects of her presentation from the outset. She struggled to engage in a normal manner, she was unusually intense and pedantic.
(ii)In relation to her trial affidavit, he considered it over-inclusive, obsessive in nature of issues raised repetitively, and was particularly concerned with the mother’s preoccupation with the legal process.
Further evidence included that:
(a)There was targeting of the ICL.
(b)Despite court processes being highly stressful, and criticism being common, there was extensive preoccupation with numerous aspects of her own lived experience and of X. Her professional training and work in government is not commensurate with the level of disorganisation and becoming preoccupied with particular issues.
(c)He referred to the diagnosis of ADHD by her current psychiatrist and was concerned about her current mental state and treatment and said that he would benefit from additional information around that.
(d)His primary concern arose from the transcript, which he found highly concerning because it included no respect for the Court or legal representatives, was talking over the Judge, objecting to the Court mid-statements, indicative of her current mental state lacking capacity. He said that not being capable of adequately conducting herself may be attributable to the stress of the current proceedings, or an excess quantity of psycho-stimulant medication, including Ritalin.
(e)He referred to the many comment boxes being posted to the MS Teams link by the mother during his evidence.
(f)There was no doubt in his view the mother currently exhibits a mental state of being inadequate to conduct proceedings or give adequate instructions.
(g)He was asked whether he felt he needed to conduct another assessment or whether the information he had was enough for the views that he had given, and his evidence included that the information provided to date was adequate to sustain that view based on the dispute between the mother and her legal representatives, as well as her manner before the Court evident in the transcript alongside her highly emotional and disorganised state. He felt there was no requirement for a further interview at this stage on the question that she lacks capacity to conduct herself before the Court.
(h)He described the Respondent Mother with an “acute-on-chronic” presentation against a long-standing history of concerning behaviour.
(i)On the question of her understanding of the nature of the proceedings, he gave evidence which included that:
(i)He was concerned about the mother pursuing a whole range of issues not relevant to the proceedings; and
(ii)She does not understand the impact of her behaviour before the Court and the potential consequences of that behaviour in the proceedings.
(j)He was asked about whether the suspension of time and contact order that was made yesterday, and her subsequent behaviour today, was indicative of not understanding the consequences. He said that the mother had expressed shame and embarrassment in her last trial affidavit.
(k)He was asked if the proceedings were to continue, if her mental health may deteriorate and require involuntary hospitalisation, and he gave evidence that:
(i)It was a risk, impossible to quantify as low, medium or high;
(ii)She was a risk to the child if in a highly dysregulated state and that she would lack a filter;
(iii)She is highly unlikely to act in a manner directly harming X.
(l)He agreed that the mother had filed a claim in the ACAT against him for payment of damages for a cancellation fee of $500, that he had waived it, and that those proceedings were nevertheless ongoing. He was asked if he thought that was indicative to him of further evidence of preoccupation, to which he agreed, and he also agreed that that fed into his assessment now.
The Mother cross-examined Dr B with respect to a potential conflict of interest arising from the ACAT proceedings, which amounted to whether or not those proceedings had any impact on his present opinion, to which he deposed that “No. I’ve referred to multiple sources of information, it has not influenced my willingness or capacity in my role as a Court Expert.”
I pause to note here the highly unusual situation whereby a court appointed single expert witness was a defendant to a small claims action brought by a party to these proceedings. The evidence of Dr B is problematic in that he agreed to the proposition that it was something he took into account in forming his views about the mother being overly preoccupied, but also said that he was not influenced by it. In the context of the circumstances and for the purposes of this application, I am satisfied that the existence of the ACAT proceedings did not influence his willingness or capacity in his role as a Court Expert, and, there were multiple sources of information that were duly provided to him upon which he was able to rely.
The balance of the cross-examination of Dr B by the mother was not helpful for the purposes of this application.
SUBMISSIONS OF THE ICL
Following the close of evidence on the application, the ICL was in a position to refine the orders that were sought, which were that:
(1)A finding is made pursuant to Rule 3.12, that the Respondent mother needs a litigation guardian;
(2)Pursuant to Rule 3.14, there be a period of 7 days whereby a person can apply to be the litigation guardian;
(3)Thereafter, in the absence of an application, pursuant to Rule 3.16(3) the Attorney-General be invited to appoint one.
A further order consequential would be that the final hearing be adjourned.
The ICL made submissions which included that:
(a)With respect to Rule 3.12(1)(b), Dr B’s opinion was unequivocal and reasoned appropriately. His opinion was based on:
(i)The Mother’s consistent and excessive preoccupation with issues;
(ii)A possible erroneous diagnosis of ADHD and possibility of medications contributing to deterioration in mental health;
(iii)The mother’s disorganisation, lack of focus and ‘tangentialism’; and
(iv)The disputation from the mother during Dr B’s evidence.
(b)As to Rule 3.12(1)(a), the evidence of Dr B was that:
(i)Her inability to address matters of relevance, was indicative of not understanding the nature of the proceedings; and
(ii)Presently being unable to see the consequences of her actions and lack of impulse control, was indicative of being unable to understand the consequences of the proceedings.
(c)The ICL referred to Gaddy v Gaddy [2022] FedCFamC2F 1544.
(d)The ICL also submitted that according to Dr B’s evidence, there was a risk to the child in respect of the mother’s mental health as it may expose X to the risk of psychological harm, and if a litigation guardian was not appointed, it may exacerbate the mother’s mental health outcome.
SUBMISSIONS OF THE APPLICANT FATHER
The solicitor advocate for the father made submissions that were supportive of the submissions of the ICL. In addition, it was submitted that:
(a)The evidence of Dr B was emphatic, particularly with respect to Rule 3.12(1)(b) while not excluding 3.12(1)(a).
(b)Focus on the behaviour of the respondent can’t be forensically separated from her understanding of the nature and consequences of the proceedings. The mother’s mental health incapacity goes to the heart of her understanding.
(c)The father is acutely aware of the proceedings being further delayed.
SUBMISSIONS OF THE RESPONDENT MOTHER
The mother made submissions to the following effect:
(a)She relied upon the case of Oliver & Gall [2008] FMCAfam 164, saying in that case, the person given the litigation guardian was affected by drugs and alcohol, had slurred speech, became upset and teary and needed breaks to compose herself. On this point, the mother sought to assert that the MS Teams chat entries written by the mother should be taken into consideration, to show that she was focussed on the proceedings and the evidence being given by Dr B.
(b)That no treating practitioner to date has said that she suffers from any form of psychosis, delusion, thought-disorder or confusion.
(c)That she had performance appraisals from 20 years of employment in public service, saying that she had terrible judgment, poor people skills and no capacity for promotion.
(d)Since the mother has commenced Ritalin, her capacity has improved, but that she has started to feel that the medication is making her aggressive. She deposed that she had contacted her treating psychiatrist’s rooms to discuss this.
(e)She conceded she had been extremely aggressive the day prior, but explained this by saying that she was extremely upset about her representation and had no capacity to self-regulate. She said that she was “ashamed that she was an idiot, but not ashamed that she was upset”.
(f)She is capable of parenting X despite her behaviours before the Court, as she “can be one person in one setting, and another person in another.”
From there onwards, the Respondent Mother made emotionally charged and dysregulated submissions on matters irrelevant to the present application.
PRINCIPLES
Rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 states:
(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.
The Full Court of the then Family Court in Forster & Forster [2012] FamCAFC 47 said:
126. ….It is the common experience of courts that many self-represented litigants appear to act against their interests, file voluminous documents and file many applications, some of which, at least at first blush, would enjoy no prospects of success.
127.As the Full Court of the Federal Court made clear in L v Human Rights and Equal Opportunity Commission, conduct that might on its face appear to be against the interests of a litigant does not compel the conclusion that the person is in “need” of a litigation guardian. At [34], the Court said:
…the fact that a litigant has put forward a case that reveals no reasonable cause of action may say nothing at all about the litigant’s capacity to present such a case…
[…]
132.…. In that regard, we observe that, in Family Law proceedings, the authorities on the appointment of litigation guardians to protect the interest of the person must be considered against the Court’s overriding duty to make orders that are in the best interests of children.
[…]
135. As we have said, to relieve an adult person of the right to conduct his or her own litigation is a serious step and a serious deprivation of a fundamental right. It also requires the rebuttal of the presumption of competence.
[…]
137. The decision of the Full Court of the Federal Court in L v Human Rights and Equal Opportunity Commission makes it clear that it is for those asserting “need” to establish it. It is not for the litigant to “prove competence”.
There is no issue that the authorities are well settled around the principles that:
(a)It is for those asserting “need” to establish it.
(b)It is not for the litigant to “prove competence.
(c)To relieve an adult person of the right to conduct his or her own litigation is a serious step and a serious deprivation of a fundamental right.
I note the Court’s approach in Gaddy at paragraphs 15 - 16 about section 190 of the Federal Circuit and Family Court of Australia Act2021 (‘FCFCOA Act’) and reference to the overarching purpose and section 69ZN of the Act. The court in Foster [at 132] made an observation in relation to the best interests of the children.
I do not disregard those observations. However, in my view they are diminished in weight on the question of the need for a litigation guardian which in my view is procedural and once raised becomes a threshold question the answer to which is not necessarily well informed by the overarching purpose or the s 69ZN principles.
I also apply the principle of a right to be heard. The principle as stated in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 by Kirby J at [38]–[40] is informative when interpreting ‘adequate’ in Rule 3.12(1)(b).
... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
CONSIDERATION
I do not find that the mother is a person in need of a litigation guardian. In addition to what I have said in the Introduction above, I find that because:
(a)These proceedings have been on foot since April 2022. By her responses filed since June 2022, the mother not only participates in opposition to the orders sought by the father but pursues her own cause of action. The Further Amended Response filed by herself as recently as 1 November 2023 is far from indicative of someone who does not understand the nature or consequences of these proceedings.
(b)The respondent has been self-represented for large parts of the proceedings to date, including the preparation of her trial material.
(c)The respondent has intensely engaged in the non-hearing aspects of the proceedings to date including filing several applications in proceedings, deposing to affidavits, marshalling evidence of other witnesses and affidavits, issuing subpoenas, attending directions and interim hearings.
(d)On day one, the respondent was granted leave to file an Outline of Case Document that includes a detailed chronology and succinctly sets out the issues in the proceedings around the questions of risks in this matter.
(e)Very cogent evidence is that an order was made on day one for the mother to
“file and serve an index of the material upon which she wishes to rely. Next to each item and limited to five (5) words per item, the Respondent is to outline the factual issue to which the material relied upon pertains.”
Not entirely responsive to that Order, but nevertheless the mother filed and served a document titled “Respondent Mother Key dates for case outline – Briefly outline significant events in chronological order relevant to the issues to be determined by the court.” The latter half of the title to that document is very cogent evidence of the mother’s understanding of the nature of these proceedings.
(f)The basis of the application for her then Counsel’s permission to cease to act was that the respondent was rejecting or ignoring the advice of her legal representative and Counsel such that their ongoing representation became untenable. It was not on the basis of not being able to obtain instructions.
(g)Dr B, who psychiatrically assessed the respondent on 30 January 2023 found, inter alia, there was no cognitive impairment evident. He did not change that in his evidence on this application.
(h)The vast majority of the circumstances upon which Dr B relies for his opinion are based upon the behaviour of the mother in relation to the preparation of her trial material and her presentation on day one whereas rule 3.12 does not have regard to that.
(i)The dysregulation in her behaviour has not demonstrated her incapacity to make forensic decisions or to participate in the proceedings, rather, it is demonstrative of uncontrolled emotions following outcomes that she does not agree with or ignites within her a subjective sense of injustice.
(j)There are measures that can be taken to assist, or limit as the case may be, to provide for the Respondent’s behaviour – such as prohibiting cross-examination personally pursuant to s 102NA, having the parties appear by video or audio link pursuant to s 102D and s 102E, protection of witnesses pursuant to s 101 and giving effect to the principles in s 69ZN by utilisation of the measures in s 69ZX.
(k)In addition to those measures, the mother has been observed over video link to be eating, drinking, standing, moving about and having a cat in close proximity. These are not circumstances that would ordinarily be permitted during a court proceeding but no issue has been taken as the Court has formed the view that these are additional measures in the circumstances of this case that provide for the mother’s adequate conduct of the proceedings without jeopardising the integrity of the proceedings or the court. A line however was drawn, and the mother was directed not to participate in mobile phone calls nor to transmit or record the proceedings.
(l)I am satisfied that there is no issue with providing the Respondent with an opportunity to be heard in these proceedings.
I have taken into account, pursuant to s 190 of the FCFCOA Act the overarching purpose which falls in favour of dismissing the application such that there be no further adjournment of the final hearing.
I have also taken into account, pursuant to note 2 of s 190 of the FCFCOA Act and s 69ZN of the Act - Principles for conducting child-related proceedings and the paramountcy principle. There are strong arguments on both sides. On balance, I find the best interests of X is to pursue the end of the proceedings in order to end the harm caused by her exposure to them and the escalating behaviour of the mother.
For these reasons:
(a)I am well satisfied that the mother understands the nature of the proceeding.
(b)I am well satisfied that the mother understands the possible consequences of the proceeding.
(c)I am less satisfied but still satisfied that the mother is capable of adequately conducting the proceeding. Particularly where measures are able to be put in place in response to the mother’s behaviours if they are to continue.
(d)I need not be satisfied as to whether or not the mother is capable of giving adequate instruction for the conduct of the proceeding as it is an “or” alternative to the previous question. If I was required to do so, I would determine it in the affirmative on the finding that it is not the adequacy of instructions upon which her legal representatives ceased to act, it was on her ignoring or rejection of advice.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Mansfield. Associate:
Dated: 16 November 2023
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