Public Guardian (Queensland) and Beasley and Anor
[2015] FamCAFC 63
•24 April 2015
FAMILY COURT OF AUSTRALIA
| PUBLIC GUARDIAN (QUEENSLAND) & BEASLEY AND ANOR | [2015] FamCAFC 63 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Application in an appeal by the Public Guardian (Queensland) seeking leave to intervene in an appeal pursuant to s 92 of the Family Law Act 1975 (Cth) – Where the mother’s capacity is impaired – Where the mother is without a Litigation Guardian – Where the Public Guardian (Queensland) does not consent to such appointment but wishes to protect the interests of the mother – Application to intervene granted. |
Family Law Act 1975 (Cth) s 92
| APPLICANT: | Public Guardian (Queensland) |
| FIRST RESPONDENT: | Ms Beasley |
| SECOND RESPONDENT: | Mr Dawson |
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
| FILE NUMBER: | BRC | 6584 | of | 2012 |
| APPEAL NUMBER: | NA | 26 | of | 2015 |
| NA | 27 | of | 2015 |
| DATE DELIVERED:: | 24 April 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 24 April 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 March 2015 |
| LOWER COURT MNC: | [2015] FCCA 480 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ryan QC |
| SOLICITOR FOR THE FIRST RESPONDENT: | Legal Aid Queensland |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
Orders
That the Public Guardian (Queensland) be granted leave to intervene in the proceedings, being appeals NA 26 of 2015 and NA 27 of 2015.
That appeals NA 26 of 2015 and NA 27 of 2015 be consolidated.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Public Guardian (Queensland) & Beasley and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 26 of 2015
NA 27 of 2015
File Number: BRC 6584 of 2012
| Public Guardian (Queensland) |
Applicant
And
| Ms Beasley |
First Respondent
And
Mr Dawson
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ms Beasley (“the mother”) and Mr Dawson (“the father”) have one child together, who was born in 2003 (“the child”). The parents have been engaged in litigation concerning the parenting arrangements for the child since 2012.
By an Application in an Appeal filed on 31 March 2015, and also by oral application during this hearing, the Public Guardian (Queensland) (“the Public Guardian”) seeks leave pursuant to s 92 of the Family Law Act 1975 (Cth) (“the Family Law Act”) to intervene in the appeal proceedings.
The primary reason for the applications is, as no order was made by Judge Jarrett against the Public Guardian, it may not have standing to appeal.
The parties, being the mother (represented by Legal Aid Queensland), the father, who is not legally represented and the Independent Children’s Lawyer (“the ICL”), appeared on 3 March 2015 and 7 April 2015 before Judge Jarrett in the Federal Circuit Court of Australia. It is from orders made on those dates that the Public Guardian wishes to appeal.
Legal Aid Queensland supports the application by the Public Guardian, the ICL neither opposed nor consented. The father was not present for the proceedings, there is some uncertainty as to whether he supported or opposed the application.
Background
A brief discussion of the background is helpful in understanding and providing context for these applications. The matters that follow are apparently uncontroversial and are contained in the reasons of the primary judge delivered on 3 March 2015.
As previously recorded, the parties have one child together who is now aged approximately 12.
The mother has an acquired brain injury arising from a cardiac event she experienced in December 2011. The Public Guardian was appointed for the mother on 23 May 2013 by the Queensland Civil and Administrative Tribunal (“the Tribunal”) pursuant to the provisions of the Guardianship and Administration Act 2000 (Qld). A guardianship order was previously made by the Tribunal on 31 May 2012.
On 23 July 2012 the father commenced proceedings for parenting orders. No issue was raised at that time regarding the mother’s capacity and consent orders were made for the child to live with the mother and the maternal grandmother and spend time with the father.
Further parenting orders were made on 23 November 2012. Neither the mother nor maternal grandmother appeared. The position as to the mother’s capacity remained unknown to the Federal Circuit Court of Australia.
On 23 January 2013 a further application came before the court. For the first time it became clear that the mother suffered under a disability and orders were made for the child to live with the father.
On 11 February, 2013 the father appeared in person, the ICL appeared, the Public Guardian sought and was granted leave to appear and a solicitor appeared purporting to appear for the mother. Further orders were made by consent and the matter was further adjourned pending further investigation by the ICL.
The matter returned before the court on 5 August 2013 and the ICL recommended certain parenting orders, to which each parent agreed.
At a directions hearing on 6 November 2013 the parties advised the Court that they could not agree on the final disposition of the application.
Prior to the trial date, on 23 December 2013, the solicitor who had been acting for the mother felt he was in difficulty in obtaining instructions. Legal Aid Queensland took over the conduct of the matter on behalf of the mother, but at a time close to the trial date. It was clear that the application was not ready for trial.
During that hearing on 23 December 2013, Legal Aid Queensland made an oral application to dispense with whatever rules of the court was necessary to allow the proceedings to continue without the appointment of a Litigation Guardian for the mother, on the basis that the Public Guardian had power to make decisions for the mother in these proceedings and was providing instructions to Legal Aid Queensland.
The ICL opposed the dispensation of the rules. The Public Guardian otherwise refused to accept appointment as Litigation Guardian by providing consent in writing. There was no other person willing to accept the appointment.
The primary judge made further directions that by 31 January 2014, written submissions be filed regarding the dispensation of the rules and any application for an appointment of a Litigation Guardian be filed.
The ICL, Public Guardian and Legal Aid Queensland all filed written submissions. No such application for appointment as Litigation Guardian was filed.
The primary judge found the mother is a person who requires a Litigation Guardian, but he could not appoint the Public Guardian without consent. He found it was not in the interests of justice to dispense with the rules in relation to such an appointment. He also refused to dispense with compliance with the rules as requested by Legal Aid Queensland. The primary judge stayed the matter until such time as consent to act as a Litigation Guardian was filed.
On 7 April 2015 the primary judge made further orders that the Commonwealth Attorney General appoint in writing a person to be the manager of the affairs of the mother. An affidavit of Legal Aid Queensland filed by leave today demonstrates that on 9 April 2015 the Attorney General advised Legal Aid Queensland that it was unable to identify any individuals to be nominated as a Litigation Guardian for the mother.
The Appeals and Application in an Appeal
By its Application filed in an Appeal on 31 March 2015, the Public Guardian seeks the following order:
1.That pursuant to s92 of the Family Law Act 1975, the Public Guardian (Queensland) have leave to intervene in the proceedings, such intervention limited to the Appeal filed contemporaneously herewith.
A Notice of Appeal was also filed on 31 March 2015 by the Public Guardian, seeking leave to appeal and appealing an order made by Judge Jarrett on 3 March 2015 (“the First Notice of Appeal”). The ground of appeal is:
1.That His Honour erred and his discretion miscarried in deciding not to dispense with the rules relating to the appointment of a Litigation Guardian, and in particular, FCCR r11.09(1).
The relevant orders of the primary judge on 3 March 2015, to which the first Notice of Appeal relates, provided:
1.The application made by Legal Aid Queensland on 23 December, 2013 be dismissed.
2.All outstanding applications are adjourned to 7 April 2015 at 9:30 a.m. for further directions in the Federal Circuit Court of Australia sitting at Brisbane.
The orders sought in the First Notice of Appeal are:
1. That the Public Guardian (Queensland) have leave to appeal.
2. That the Order 1 of the Order of 3 March 2015 be set side [sic].
3.That so long as the Public Guardian (Queensland) remains the Respondent mother’s appointed guardian for legal matters (not relating to property or finances) pursuant to an order of QCAT, then in the interests of justice, FCCR r 11.09(1) be dispensed with.
4.There be no order as to costs.
In the First Notice of Appeal, leave to appeal is sought. The basis of such leave explains the issues. They are as follows:
1.In this matter, the Respondent mother is under the kind of incapacity which enlivens the Federal Circuit Court Rule (“FCCR”) r.11.08.
2.The Public Guardian is currently appointed as guardian for the Respondent mother for certain personal matters, including her legal matters, not in relation to property or finances. This appointment is pursuant to an order of the Queensland Civil and Administrative Tribunal (“QCAT”) on 23 May 2013. The matter before the Federal Circuit Court (“FCC”) is a parenting matter, not property related.
3.The Public Guardian, by virtue of its legislation is not empowered to consent to being appointed as a litigation guardian as contemplated by FCCR r 11.11(2). However, the Public Guardian is appointed as a substitute decision maker for the Respondent mother and is required to promote and protect the rights and interests of adults with impaired capacity for a matter.
4.Where a party to Family Law Act litigation is in need of a litigation guardian, and there is no one available to consent to such an appointment, the party is unable to, inter alia, continue as a party to the proceeding. This is unless the Court directs that FCCR r.11.09(1) be dispensed with or a referral is made to the Commonwealth Attorney-General to appoint a manager of affairs to act as litigation guardian.
5.His Honour declined to dispense with FCCR r.11.09(1), notwithstanding that the Respondent mother has a QCAT appointed guardian who is able to provide instructions to her legal representative with regard to the further conduct of her legal matters and who also has a statutory purpose of promoting and protecting her rights and interests.
6.Had that rule been dispensed with, the Respondent mother could continue as a party to the proceedings, through her statutorily appointed guardian and her legal representative. The Public Guardian can provide adequate instructions to ensure that the legal representative is able to progress the mother’s case.
7.The resolution of this issue has implications of wider scope than just this Respondent mother – or more so, the [child’s] relationship with her mother. Indeed, it has implications for any party who needs a litigation guardian, but no one is able to consent to such an appointment. These matters are at risk of being permanently stayed, or proceeded undefended.
The parties appeared again before the primary judge on 7 April 2015 and he made the following orders:
1.Pursuant to rule 11.12(3) of the Federal Circuit Court Rules 2001, it is requested that the Commonwealth Attorney General appoint in writing a person to be the manager of the affairs of [the mother].
…
5.Otherwise all outstanding applications be stayed until the filing of a consent to act as a litigation guardian pursuant to the Federal Circuit Court Rules 2001, whereupon the application be listed for further directions no later than four (4) weeks from the filing of such a consent.
6.Liberty to the applicant or the Independent Children’s Lawyer to apply on three (3) days’ written notice.
7.In the event that no consent to act as a litigation guardian for the applicant is filed by 4:00pm on 6 April 2016, and no application by the applicant or Independent Children’s Lawyer has been made by 4:00pm on 6 April 2016, all outstanding applications will stand dismissed.
A separate Notice of Appeal was filed on 22 April 2015, appealing the orders of Judge Jarret made on 7 April 2015, with the following ground of appeal (“Second Notice of Appeal”):
1.That His Honour erred in exercising his discretion to stay the proceedings on 7 April 2015.
The orders sought in the Second Notice of Appeal are:
1. That the Public Guardian (Queensland) have leave to appeal.
2.That the orders in paragraphs 5 and 7 of the Order of 7 April be set side [sic].
3.That, while the Public Guardian (Queensland) remains the Respondent mother’s appointed guardian for legal matters (not relating to property or finances) pursuant to an order of QCAT, then proceedings be permitted to continue.
4.There be no order as to costs.
In the Second Notice of Appeal, leave to appeal is also sought. The basis of such leave is largely similar to the issues raised in the First Notice of Appeal, with the following additional reasons:
7.On 31 March 2015, the Public Guardian filed a Notice of Appeal with regard to the Order made on 3 March 2015.
8.On 7 April 2015, the Mother’s legal representative advised His Honour that there had been a change of circumstance and the child was now residing with the Respondent Mother.
9.On that date, his Honour ordered that the proceedings be stayed until the filing of a consent to act as a litigation guardian. His Honour further ordered that, in the event that no consent to act as litigation guardian for the Respondent mother were filed by 6 April 2016, and no application by the Applicant or the Independent Children’s Lawyer had been made by 6 April 2016, then all outstanding applications will stand dismissed.
10.The stay, and the potential for all outstanding applications to be dismissed, have implications for the best interests of the child and for certainty in the proceedings for all parties.
At the commencement of this application in an appeal, counsel for the Public Guardian applied by oral application to have leave to intervene in the proceedings relating to the second Notice of Appeal. It is therefore convenient to deal with the two applications together.
Discussion
The Public Guardian was not a party to the original parenting proceedings and is not named in the orders. Leave to intervene is required.
Section 92 of the Family Law Act governs intervention in proceedings by other persons. Section 92 relevantly provides:
(1)In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.
…
(2)An order under this section may be made upon such conditions as the court considers appropriate.
(3)Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
The essential factual matters are set out in the affidavit filed 31 March 2015 of the Public Guardian of Queensland.
In oral submissions, Ms Ryan QC Counsel for the Public Guardian submitted that leave is required so the Public Guardian can ensure the interests of the mother are protected and promoted in the parenting proceedings, and also for the safety of the child.
Conclusion
It is appropriate to give leave to the Public Guardian to intervene in appeal NA 26 of 2015 and NA 27 of 2015. The mother is currently without a Litigation Guardian in the parenting proceedings, this issue must be resolved with some degree of urgency.
Costs
There should be no order as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 24 April 2015.
Associate:
Date: 24 April 2015
0