Materanzi and Suskain (No 2)

[2011] FamCA 276

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN (NO 2) [2011] FamCA 276

FAMILY LAW – PRACTICE AND PROCEDURE - Application for the appointment of a case guardian

Family Law Rules 2004

APPLICANT: Mr Materanzi

RESPONDENT: Ms Suskain

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 776 of 2010

DATE DELIVERED: 8 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Forrest J

HEARING DATE: 8 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Ms Graves

SOLICITOR FOR THE RESPONDENT: n/a

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wearne

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

Orders

1. The oral application by counsel for the Respondent Mother for the appointment of a case guardian for the Respondent Mother is refused.

IT IS NOTED that publication of this judgment under the pseudonym Materanzi and Suskain (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 776 of 2010

Mr Materanzi

Applicant

And

Ms Suskain

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The applicant in these proceedings, Mr Materanzi, and the respondent, Ms Suskain, are the parents of H, who was born in April 2004.  H now is rapidly approaching seven years of age.

2. Sadly, for much of H’s life so far, her parents have remained in dispute in respect of parenting arrangements for H in respect of the time, if any, she spends in her father’s care and in respect of most aspects related to her parenting.

3. The dispute between them about the parenting of little H has been before this court and taken up much of this court’s time now for many years.  Since, as I understand it, sometime in 2004, the applicant and the respondent have been involved in proceedings in this court.

4. The matter - the parenting dispute - found its way into the Magellan list of this registry and was listed some time in recent months for a hearing lasting five days commencing at 10.00 am on Monday, 7 February 2011.

5. Now on 13 December 2010, Registrar George of this registry - who I understand is the Magellan Registrar - conducted a telephone directions hearing at which I understand that the respondent mother was represented by Ms Graves of counsel.  Mr O’Dowd, the Independent Children’s Lawyer, was present and Ms Cutelli, solicitor acting for the applicant father, was also present.

6. On that day, Registrar George made numerous directions in respect of getting the matter ready for the hearing.  Included in the directions Registrar George made, was the critical direction that by 27 January 2011 the parties were to file and serve the evidence they rely upon.  As I understand it, Registrar George when making that direction, was not told that it could not be complied with by the respondent mother.

7. Indeed, I understand that on 31 January - so about a week before the matter was due to commence - there was a mention of the matter – a compliance mention as I understand it, again before the Registrar, which of course took place after 27 January by which date the affidavits of evidence of the parties were to have been filed.  As I understand it, again, there was no suggestion to Registrar George that no affidavits of evidence would be able to be prepared and filed on behalf of the respondent mother by the time of the commencement of the hearing.

8. When the matter was called on before me at 10.00 am yesterday morning, I became aware - in fact I had become aware before that time - that as recently as Thursday or Friday of last week, that is 4 February, a Notice of Ceasing to Act had been filed by the solicitor for the respondent mother.  That having happened, I have been left with no opportunity to find out from the solicitors who are on the record for the respondent mother through the last several months, as to why indeed the directions in respect of filing affidavit material on behalf of the mother were not complied with.  I regret that circumstance.

9. At the commencement of the hearing yesterday, counsel for the respondent mother, Ms Graves, sought leave to withdraw on the basis that she no longer held instructions from the firm of solicitors who had previously instructed her and who were on the record for the respondent mother until the filing of their notice of ceasing to act.

10. I had some discussion from Bench to Bar with Ms Graves, originally not having the desire to release her from the proceedings at that point in time.  Ms Graves indicated she would be prepared, in the circumstances, in order to help the Court, or to assist the Court and, indeed, to assist her client, to continue to represent her, albeit needing some more time to prepare the case on her behalf.

11. I acceded to such a request and adjourned the matter over to 10.00 am this morning, Tuesday, 8 February 2011, all on the condition that a grant of legal aid was secured to ensure Ms Graves’ payment for her services to be rendered during the course of the hearing.  I understand that such a grant of aid was indeed forthcoming.  Initially, I had been told that after inquiry was made there had been no grant of aid granted to the respondent mother for the trial.  As extraordinary as that sounds, I have no cause other than to accept that and in the end it did not matter because through the good efforts of, as I understand it, the solicitor – or the advocate for the Independent Children’s Lawyer, Ms Wearne, and through the good efforts of Mr O’Dowd, an urgent grant of aid was forthcoming and Ms Graves’ fees were ensured.

12. At 10.00 am this morning when the matter was called back on, Ms Graves has made an application on behalf of the mother for the appointment of a case guardian.  The application was oral and was not supported by way of any affidavit.

13. Rule 6.08 of the Family Law Rules, 6.08(1) says, “A child or” – relevantly, here – “a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian”.

14. “Person with a disability” is defined in the dictionary section of the Family Law Rules as:

    ... in relation to a case, meaning a person who, because of a physical or mental disability:

    - does not understand the nature or possible consequences of the case; or

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

15. On behalf of the mother, through Ms Graves, it is asserted that the mother is a person so defined, that is, a person with a disability.  I did not understand Ms  Graves’ submission to be that the mother is a person with a disability that does not understand the nature or possible consequences of the case, but more that she was submitting that the mother is a person with a disability within the second part of that definition, being “is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case”.

16. I have to be satisfied that that is the case, that the mother is such a person, because of a physical or mental disability.  I have to act on evidence.  There was no affidavit of evidence filed before me to support such an application.  Although there was some alluding in the submissions by Ms Graves, to questions as to why it may be that the mother is such a person, I have absolutely no evidence before me to be able to find that she has any mental disability that causes her to be not capable of adequately conducting or giving adequate instruction for the conduct of the case.

17. That leaves me with the question of whether she is such a person because of a physical disability.  There is evidence before me, and it is abundantly clear from my own observation, that the mother has a serious hearing deficit that impacts on her ability to be able to hear and understand what is happening and to speak and communicate with others, including the court, to the same extent that a person without such a hearing disability would be able to.  However, the mother has been, throughout the course of the proceedings so far, assisted by the ever presence of an interpreter, who, from all appearances, writes down all of the important things that need to be communicated to her, and is able to, from what I understand, adequately communicate with the mother.

18. The mother has been, as I have earlier alluded to, involved in Family Court proceedings now, of one form or another with respect to her daughter, H, since 2004.  I have seen no evidence to suggest that she ever was unable to properly participate in those proceedings.  No such application, to the best of my knowledge, for the appointment of a case guardian has ever been made.

19. I understand and appreciate that participation in litigation by the mother, with or without legal representation, is difficult for her.  I am not though, satisfied simply because I appreciate the difficulty of it, that she is not capable of adequately conducting or giving adequate instructions for the conduct of the case.  It is indeed unfortunate that, for whatever reason, the mother’s legal representatives, that is her solicitors, decided to withdraw from the case only a matter of days before it commenced.  I am also deeply disappointed that Ms Graves of counsel feels the need to also withdraw, which she has indicated she will have to do if the application for a case guardian is refused.

20. That being as it may, the lack of legal representation, as difficult as that makes the mother’s case, particularly in circumstances where she is alleging that the subject child, H, has been the subject of sexual abuse by the applicant father, and also that she was subject to significant domestic violence at the hands of the father, will make this a very difficult case indeed.

21. That said, I am not satisfied that the grounds upon which I would be entitled to order the appointment of a case guardian are indeed present in this particular case.

22. A person particularly appointed as a case guardian needs to be someone who is an adult, has no interest in the case that is adverse to the interest of the person needing the guardian, can fairly and competently conduct the case and has consented to act as the case guardian. I was informed that a person closely known and befriended with the mother was a person who might be an appropriate case guardian, a Ms E. But on further inquiry, it emerges that Ms E does not feel in a position to be able to consent to take on the role. That would leave me, if I was to determine that a case guardian was necessary, in simply ordering, or requesting I should say, pursuant to r 6.11(1) of the Family Law Rules, that the Attorney-General nominate, that is the Attorney-General of the Commonwealth, nominate in writing a person to be a case guardian.

23. I am not satisfied that the mother is a person who requires a case guardian and I certainly am not satisfied that if it was to be a person imposed upon her by some other body, such as the Attorney-General, that it would necessarily make the conduct of the case any more efficient.

24. Accordingly, I refuse the application for the appointment of a case guardian.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 February 2011.

Associate: 

Date:  21 April 2011