Public Guardian (Queensland) & Beasley & Anor (No 2)
[2015] FamCAFC 201
•21 October 2015
FAMILY COURT OF AUSTRALIA
| PUBLIC GUARDIAN (QUEENSLAND) & BEASLEY AND ANOR (NO. 2) | [2015] FamCAFC 201 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where a failure to grant leave would effectively decide the substantive parenting proceedings without a hearing – Where the parenting arrangements for the child would remain uncertain – Where a substantial injustice to the mother would result if leave is not – Leave to appeal granted. FAMILY LAW – APPEAL – Where the Public Guardian (Queensland) would not consent to act as the mother’s litigation guardian and the mother’s solicitors instead sought to dispense with compliance with the relevant Federal Circuit Court Rules 2001 (Cth) – Where the primary judge refused to dispense with the rules – per MAY J Where the provisions of the Guardianship and Administration Act 2001 (Qld) empowered the Public Guardian (Queensland) to do all things necessary for the mother and a litigation guardian is not required – Where the court was satisfied the mother is bound personally by the orders – Where a failure to dispense with the rules resulted in an outcome which was unreasonable and unjust and not in the bests interests of the child – per AUSTIN J – Where the trial judge’s decision on a procedural point deprived the mother of her right to be heard – Where the trial judge erred in concluding the orders would not bind the mother if a litigation guardian was not appointed – Where the decision was unreasonable and unjust (per House v The King (1936) 55 CLR 499) – Appeal allowed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the Public Guardian (Queensland) sought leave to adduce further evidence regarding the current arrangements of the child – Where the evidence is not in dispute (per CDJ v VAJ (1998) 197 CLR 172) – Application allowed. |
| Guardianship and Administration Act 2000 (Qld) ss 12, 33, Sch 1 – 2 Family Law Act 1975 (Cth) ss 92, 93A(2) Family Law Regulations 1984 (Cth) reg 15A Federal Circuit Court Rules 2001 (Cth) r 1.06, 11.08 – 11.12 |
| Cachia v Hanes (1994) 179 CLR 403 CDJ v VAJ (1998) 197 CLR 172 Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 Goddard Elliot (a firm) v Fritsch [2012] VSC 87 House v The King (1936) 55 CLR 499 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426 SFTB v Minister for Immigration [2003] FCAFC 108 |
| APPELLANT: | Public Guardian (Queensland) |
| FIRST RESPONDENT: | Ms Beasley |
| SECOND RESPONDENT: | Mr Dawson |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston |
| FILE NUMBER: | BRC | 6584 | of | 2012 |
| APPEAL NUMBER: | NA | 26 | of | 2015 |
| NA | 27 | of | 2015 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Austin JJ |
| HEARING DATE: | 3 August 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 March 2015 7 April 2015 |
| LOWER COURT MNC: | [2015] FCCA 480 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Ryan QC |
| SOLICITOR FOR THE APPELLANT: | Public Guardian (Queensland) |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Allen QC |
| SOLICITOR’S FOR THE FIRST RESPONDENT: | Legal Aid Queensland |
| SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Oakley |
| SOLICITOR’S FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
Upon the undertaking of the Public Guardian (Queensland) that upon the expiration of its appointment on 25 May 2016, the Public Guardian (Queensland) will apply for a further extension of the appointment, for as long as necessary, to finalise the parenting proceedings concerning the child born July 2003,
It is Ordered
Leave to appeal is granted in relation to each appeal
The Application in an appeal filed 26 June 2015, to adduce further evidence, is allowed.
Appeal NA 26 of 2015 filed 31 March 2015, and appeal NA 27 of 2015 filed 22 April 2015, are allowed.
Order 1 of the orders made by Judge Jarrett on 3 March 2015, and Orders 5 and 7 of the orders made by his Honour on 7 April 2015, be set aside.
That so long as the Public Guardian (Queensland) remains the mother’s appointed guardian for legal matters (not relating to property or finances) pursuant to an order of the Queensland Civil and Administrative Tribunal, rule 11.09(1) of the Federal Circuit Court Rules 2001 (Cth) is dispensed with.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Public Guardian & Beasley and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 26 of 2015 and NA 27 of 2015
File Number: BRC 6584 of 2012
| Public Guardian (Queensland) |
Appellant
And
| Ms Beasley |
First Respondent
And
Mr Dawson
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
May J
Introduction
There are two appeals by the Public Guardian (Queensland) from orders made by Judge Jarrett on 3 March 2015 and 7 April 2015 respectively.
Ms Beasley (“the mother”) and Mr Dawson (“the father”) are engaged in litigation concerning the parenting arrangements for the child.
On 2 December 2011, the mother had a cardiac arrest. She now suffers from an acquired brain injury. At the time the parenting proceedings were commenced, in early 2012, the court was not aware of the mother’s incapacity. The Public Guardian was appointed for the mother on 31 May 2012. This appointment has been extended several times, and on 25 May 2015 the appointment was extended for a further year.
The orders made on 3 March 2015, to which the first appeal relates, dismissed the application by the mother’s solicitors, Legal Aid Queensland (“Legal Aid”), that r 11.09 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) be dispensed with. There is no doubt that the mother is in a category of persons for the purposes of the FCC Rules who require a litigation guardian.
The application was brought because the Public Guardian did not consent to appointment as a litigation guardian and asked the primary judge to dispense with the FCC Rules so the parenting proceedings could continue. The intention was that the Public Guardian would instruct Legal Aid to conduct the proceedings on behalf of the mother.
The judge having refused the application, further orders were made on 7 April 2015, to which the second appeal relates, which stayed the parenting proceedings until the filing of consent to act by a person as a litigation guardian for the mother.
On 24 April 2015, May J granted the Public Guardian leave to intervene in the proceedings pursuant to s 92 of the Family Law Act 1975 (Cth) (“the Act”).
There are two grounds of appeal in the Notices of Appeal as follows:
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 r 11.09(1). (Appeal NA 26 of 2015 filed 31 March 2015)
That His Honour erred in exercising his discretion to stay the proceedings on 7 April 2015. (Appeal NA 27 of 2015 filed 22 April 2015)
At the outset, it is important to identify two distinct issues. The first is whether the Public Guardian can adequately act for the mother in proceedings in the Federal Circuit Court of Australia without the appointment of a litigation guardian. That raises the question as to whether the court can dispense with the relevant rule and if so, in what circumstances. Secondly, what are the possible implications for the court and the parties in determining parenting matters in the child’s best interests, including issues about the enforceability of orders.
Legal Aid, for the mother, supports the appeals filed by the Public Guardian.
In written submissions, the Independent Children’s Lawyer (“the ICL”) opposed the appeal on the basis that leave should not be granted as no error of law had been demonstrated. After the oral submissions by counsel for the Public Guardian, the ICL properly conceded the leave point. In oral submissions, counsel for the ICL said that his primary concern was the need for the substantive parenting proceedings to be resolved as soon as possible. Counsel expressed other concerns in relation to the proceedings and the enforceability of orders should a litigation guardian not be formally appointed.
The father did not participate in the appeal although he was notified.
At the time of the hearing of this appeal, the child was living with the father and had no time with the mother, despite interim orders made on 23 December 2013 providing for the child to live with the father but also to have contact with the mother.
Background
Some background is helpful in understanding the context of these appeals. The matters that follow are uncontroversial. They are contained in greater detail in the reasons of the primary judge (3 March 2015), and of May J (24 April 2015).
As noted above, the parties have one child who is now 12 years old. The parents commenced living together in 2001 and separated in 2004. The child lived with the mother following separation and had no meaningful relationship with the father until 2012.
In 2007, the mother commenced a relationship with Mr D, her de facto partner. They have one child together, born in 2013.
As referred to above, in December 2011, the mother suffered a cardiac arrest which caused an acquired brain injury. The mother was in hospital for a number of weeks and medical evidence demonstrated that she suffered cognitive impairment.
On 31 May 2012, the Public Guardian was appointed for the mother by the Queensland Civil and Administrative Tribunal (“QCAT”) pursuant to the provisions of the Guardianship and Administration Act 2000 (Qld) (“the Guardianship Act”).
On 23 July 2012, the father commenced proceedings for parenting orders. He sought interim and final orders that the child live with him, and spend time with the mother.
During the mother’s hospitalisation, the child lived with her maternal grandmother and spent time with her father. Further orders were made to this effect on 31 August 2012. On 23 November 2012, it was apparent that the mother was now back living with the maternal grandmother and the interim orders were varied so the child spent time with both the mother and father. Up to that time, in these proceedings, no issue was raised about the mother’s capacity.
On 23 January 2013 the court became aware of the mother’s incapacity, by way of a Family Report. Orders were made on 29 January 2013 for the child to live with the father. The matter returned to the court a number of times, resulting in variations to the parenting arrangements but not a change in the child’s living arrangements.
On 23 December 2013, the solicitor acting for the mother formed the view he was in difficulty obtaining instructions. Legal Aid took over conduct of the matter on behalf of the mother. The solicitor from Legal Aid made an oral application to dispense with whatever rules of court were 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. The ICL opposed the dispensation of the rules.
The primary judge varied the orders on 23 December 2013, requiring the child have supervised time with the mother. His Honour also ordered written submissions be filed, dealing with the issue of the litigation guardian for the mother. His honour adjourned the hearing of the oral application to 10 March 2014.
On 3 March 2015 the primary judge delivered his reasons, dismissing Legal Aid’s oral application. The matter was further adjourned to 7 April 2015.
On 7 April 2015, the primary judge requested the Attorney-General to appoint a person to be the manager of the affairs of the mother, and stayed the application. An order was made that in the event no consent to act was filed by 6 April 2016, all outstanding applications would be dismissed.
On 9 April 2015, an officer of the Attorney-General advised Legal Aid in writing that no person was interested in the nomination as a litigation guardian for the mother.
Leave to Appeal
The Public Guardian seeks leave to appeal. Leave to appeal (in both appeals) is required, they being from “prescribed decrees” (per s 94AA of the Act). Regulation 15A of the Family Law Regulations 1984 (Cth) defines a prescribed decree as an interlocutory decree, other than a decree in relation to a “child welfare matter”. A child welfare matter is defined as a matter relating to:
(a) the person or persons with whom a child is to live; or
(b)the person or persons with whom the child is to spend time or communicate; or
(c)any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
The orders dismissing the Public Guardian’s application and ordering a stay of proceedings are interlocutory decrees and could not be described as incidental to parental responsibility. Leave is necessary.
During oral submissions, it emerged that the two main arguments in support of leave being granted and indeed of the appeals themselves should be construed as follows:
a)That the primary judge erred in his approach to the question to be determined, when he took into account irrelevant considerations and failed to take into account relevant considerations; and
b)The orders were unreasonable and unjust (per House v The King (1936) 55 CLR 499 (“House v The King”)).
It is argued by the Public Guardian that leave should be granted – if the rule had been dispensed with on 3 March 2015, the mother could have continued as a party to the proceedings through the Public Guardian and her solicitors Legal Aid. Significantly, it is submitted, a failure to dispense with the rules meant the mother’s relationship with the child was at risk, because the application for parenting orders might be permanently stayed or proceed undefended.
A failure to grant leave would effectively decide the substantive parenting proceedings without a hearing, and leave the parenting arrangements for the child uncertain. The possible substantial injustice to the mother and the important issues these appeals raise lead to a conclusion that leave should be granted.
Application in an Appeal
The Public Guardian filed an Application in an appeal on 26 June 2015, seeking leave to file further evidence in the appeal (s 93A(2) of the Act). The Public Guardian seeks leave to file two affidavits, one of Kevin James Martin who is the Public Guardian for the mother, and a second of Kyle Peta Terrance, the mother’s solicitor from Legal Aid.
The first affidavit simply confirms that the Public Guardian’s appointment for the mother was extended on 25 May 2015 by the QCAT. Neither the ICL nor counsel for the mother opposed the filing of that evidence.
The other affidavit updates the current arrangements for the child. According to the affidavit, the father contacted the mother’s solicitor and advised her that the child had returned to his full time care, and that the child would spend no time with the mother. The mother’s solicitor confirmed this arrangement with Ms D, who is the mother of Mr D, the mother’s partner.
The mother’s solicitor advises that, as the primary judge did not dispense with r 11.09 of the FCC Rules, she is unable to file or cause to be filed an urgent interim application for contravention or seek other orders including time with the child on behalf of the mother.
In oral submissions during the appeal, counsel for the Public Guardian submitted that the Full Court should receive this further evidence of the child’s arrangements, as it demonstrates the instability of the child’s placement as a consequence of the primary judge’s decisions. Counsel for the mother supported the filing of this evidence, and added that it shows the difficulty the mother is left in, as she is unable to instruct solicitors to bring a contravention application. The ICL did not oppose the further evidence being filed.
The Full Court has discretion to receive further evidence. The discretion is subject to a number of conditions. The principles that apply to the receipt of additional evidence are well-known. In the case of CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”), at 217 – 281, the majority judgment of McHugh, Gummow and Callinan JJ identified that the Full Court must consider:
a)First, whether the evidence, had it been before the primary judge would have produced a different result; and
b)Secondly, whether the best interests of the child require the admission of such evidence.
Further evidence may be admitted in parenting cases where circumstances have changed, but this must not occur where such evidence is in dispute (CDJ v VAJ at 204).
The evidence relates to the currency of the appointment of the Public Guardian and the current living arrangements of the child. These facts are not in dispute. The application is allowed.
The Relevant Federal Circuit Court Rules
Part 11 of the FCC Rules deals with parties and litigation guardians, including the process for appointment. The relevant rules provide as follows:
Rule 11.08 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
…
Rule 11.09 Starting, continuing, defending or inclusion in proceeding
(1)A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.
(2)The litigation guardian of a party to a proceeding:
(a)must do anything required by these Rules to be done by the party; and
(b)may do anything permitted by these Rules to be done by the party.
Rule 11.10 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.
Rule 11.11 Appointment of litigation guardian
(1)The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.
(2)A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.
(3)The Court may remove a litigation guardian at the request of the litigation guardian.
Rule 11.12 Manager of the affairs of a party
(1)In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2)A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the authority extends.
(3)The Attorney-General may appoint in writing a person to be a manager of the affairs of a party for this rule, either generally or for a particular person.
(4)A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
(original emphasis)
His Honour determined that the mother was a person who required a litigation guardian pursuant to r 11.08(1) of the FCC Rules (at [27] – [28]).
It was concluded that a litigation guardian must be appointed under r 11.09(1) for the proceedings to advance, unless the requirement was dispensed with under r 1.06(1) (at [29]).
Reasons of the Primary Judge
Orders 3 March 2015
The primary judge gave detailed reasons for his decision.
His Honour found that the terms of the Public Guardian’s appointment were for decisions about legal matters, not including financial or property matters, pursuant to s 12 of the Guardianship Act. Schedule 2 of the Guardianship Act defines legal matters to include (among other things) using legal services to obtain information about legal rights or to undertake a transaction, initiating or defending proceedings, and settling claims (at [34] – [35]).
The Public Guardian resisted appointment as the mother’s litigation guardian, and the primary judge summarised the objections raised by the Public Guardian as follows:
41.The objections raised by the [Public] Guardian to an appointment as [the mother]’s litigation guardian in these proceedings seem to be fourfold:
a)given the factual nature of the dispute in these proceedings, the [Public] Guardian is “clearly not in a position to provide instructions to any legal representative regarding the nuances of the dispute.”;
b)the appointment of the [Public] Guardian as [the mother]’s litigation guardian in the proceedings may expose the [Public] Guardian to orders for costs, a risk that the [Public] Guardian is unwilling to accept;
c)the Court can be satisfied that by virtue of the [Public] Guardian's statutory obligation pursuant to the Guardianship and Administration Act, “[the mother]’s rights and interests will be properly protected”; and
d)without the [Public] Guardian’s consent to the appointment, the Court is bereft of power to appoint the [Public] Guardian as [the mother]’s litigation guardian.
In written submissions before the primary judge the Public Guardian proposed that the judge should dispense with compliance with the rules. Similarly, Legal Aid submitted that the court should dispense with compliance with the rules, as the mother’s interests would be protected if Legal Aid were to receive instructions from the Public Guardian (at [43]). Legal Aid submitted in the alternative that the Court could appoint the Public Guardian as the litigation guardian without its consent, but only in the event the court determines it would not dispense with the rules (at [45]).
The ICL opposed dispensation of the rules. The ICL argued that the submission of the Public Guardian and Legal Aid implied:
47.…that if the Court insists upon a litigation guardian for [the mother], [the mother]’s role in the proceedings will cease because there is no person who is willing to undertake the role of litigation guardian for her.
It was further argued by the ICL (in line with Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511; L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114) that the mother could be exposed to costs orders against her, that the other parties could not expect that costs orders would be enforced and the court’s processes were at risk (at [48] – [50]).
The ICL submitted that Legal Aid lacked authority to ask the rules be dispensed with, relying on Goddard Elliot (a firm) v Fritsch [2012] VSC 87, and more particularly at [550] and [569] of those reasons. The primary judge concluded:
53.Whilst I understand the point expressed by the Independent Children’s Lawyer, I do not think that Goddard Elliot (a firm) v Fritsch is authority for the proposition that solicitors for a litigant in need of a litigation guardian cannot bring an application to dispense with the relevant rules of court. I accept that there is little else that they can do, but if they can bring an application for the appointment or discharge of a litigation guardian, then as a necessary adjunct to that ability, they must also be able to apply for dispensation with the relevant rules.
54.In the few cases where a court has been asked to dispense with the relevant rules (see Crockett v Roberts [2000] TASSC 148 and South v Northern Sydney Area Health Service [2003] NSWSC 479) it has not been suggested that the solicitors for the litigant lacked authority to prosecute an application for dispensation
(original emphasis)
In my view, the primary judge was correct in concluding that there is power to dispense with the FCC Rules and that the solicitors had the authority to make the application.
Process to appoint litigation guardian
Before determining if the FCC Rules should be dispensed with, the primary judge analysed the appointment process for a litigation guardian, comprising two steps:
a)First, consent is required (per r 11.11(2) of the FCC Rules); and
b)Secondly, once consent is obtained, the court may then appoint a litigation guardian (per r 11.11(1) of the FCC Rules).
The primary judge noted one exception to this rule found under r 11.12, where the Attorney-General could appoint a public guardian as the “manager of the affairs of a party”. If the Public Guardian consents, he would become capable of appointment by the Court (at [60]).
As to the process of appointment of a litigation guardian, the primary judge came to the following conclusions:
61.That description of the process by which a litigation guardian is appointed by the Court in pending proceedings is not inconsistent with FCCR 11.09(1) which requires a person who needs a litigation guardian to start a proceeding only by his or her litigation guardian. A person who needs a litigation guardian to start a proceeding may do so only by a person who has filed an affidavit of consent to become a litigation guardian pursuant to FCCR 11.11(2) or FCCR 11.12(4). The Court need not make an appointment of a litigation guardian to enable a person to commence proceedings by their litigation guardian.
62.It follows, in my view, that the submissions by the Independent Children’s Lawyer and Legal Aid Queensland to the effect that the Court could either appoint the Adult Guardian as [the mother’s] litigation guardian without his consent, or dispense with the rule requiring the Adult Guardian’s consent (either FCCR 11.11(2) or 11.12(4)) cannot be maintained. The Court can only appoint a litigation guardian. It cannot appoint a person who is not a litigation guardian. A litigation guardian is, and only is, a person who has filed an affidavit of consent. In my view, there is nothing that can be waived or in respect of which there could be an order for dispensation. If compliance with FCCR 11.11(2) was dispensed with, FCCR 11.11(1) would still not permit the appointment of a person who had not filed an affidavit of consent because that person would not be a litigation guardian for the purposes of FCCR 11.11(1).
(original emphasis)
Dispensation of the rules
The primary judge then commenced a thorough discussion of whether the rules should be dispensed with. It was noted that the decision to dispense with the rules was a discretionary exercise, which must be exercised judicially and in accordance with the FCC Rules, to effect just, efficient and economical resolution of the proceedings.
The Public Guardian did not appear at the hearing on 3 March 2015, and was not in a position to expand upon his written submissions. This proved unhelpful for the primary judge. The judge concluded that the Public Guardian’s position misapprehended the role of a litigation guardian. The judge referred to Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 (“DCT v P”) per Hodgson J, and made three key observations (at [66] – [71]):
a)Similar to the relevant rules of the Supreme Court referred to in the case of DCT v P, the terms of the FCC Rules require consent before a litigation guardian can be appointed;
b)Unlike the case of DCT v P, his Honour concluded that r 11.11(2) or 11.12(4) of the FCC Rules are not “amenable to dispensation” where there is no consent; and
c)In this case, the duties and responsibilities of a litigation guardian fall within the Public Guardian’s “bailiwick”. Although the Public Guardian is not obliged to act as the mother’s litigation guardian, his submissions suggested he would act to the extent necessary to assist the mother.
The primary judge did not accept the basis for dispensation as contained in the submissions of the Public Guardian. On the issue of understanding the factual nuances, the judge considered the possibility that a person who might have such understanding could very well be conflicted. Therefore, this argument failed (at [72]).
The Public Guardian’s asserted fear of a costs order was also rejected, and the primary judge concluded that although it is possible, a number of matters mitigate that risk :
74.…
a)the proceedings are for the making of parenting orders pursuant to Part VII of the Act and so, the welfare of [the child] is the paramount consideration. Whilst the proceedings are adversarial proceedings between the parties to the proceedings, they nonetheless do not concern the rights and entitlements of the parties, but rather their obligations and responsibilities towards [the child];
b)the proceedings are brought pursuant to the Family Law Act and s.117 of that Act will govern any applications for costs. Pursuant to that section the starting point is that each party should bear their own costs: s.117(1);
c)it will be relevant to any consideration of a different order for costs than that which would see each party bear their own costs that:
i)[the father] is representing himself and therefore has no claimable legal costs;
ii)the Independent Children’s Lawyer is in receipt of legal aid; and
iii)the [Public] Guardian is fulfilling a statutory role upon an appointment by QCAT.
In describing this concern in relation to costs as “more illusory than real”, the primary judge was certainly correct.
His Honour found that the appointment of a litigation guardian would also assist the resolution of proceedings, whereas a failure to appoint would further protract the matter. The court’s processes were found to be at risk. Significantly, the primary judge concluded that a failure to appoint would mean there would be no certainty for the child as the “outcome will not bind” the mother (at [75] – [77]). The primary judge concluded:
78.Whilst the [Public] Guardian submits that the Court can be satisfied that by virtue of the [Public] Guardian's statutory obligation pursuant to the Guardianship and Administration Act, “[the mother’s] rights and interests will be properly protected”, the refusal by the [Public] Guardian to take up the role as litigation guardian is of considerable concern. So too is that refusal in light of the [Public] Guardian’s submission that “However as a substituted decision maker, [the [Public] Guardian] will provide assistance to the adult, in this case, [the mother] in so far as she is able to participate in the process and protect her rights and interests in any proceedings.” It would seem to me that a refusal to take up the appointment for fear of an adverse costs order in proceedings in which an adverse costs order almost certainly will not be made, is not likely to advance or protect [the mother’s] interests.
The primary judge dismissed the application of Legal Aid.
Orders 7 April 2015
On 7 April 2015 Legal Aid for the mother and the ICL appeared before the primary judge. The Public Guardian and the father did not appear. It was a brief hearing. The primary judge made the following relevant orders, but only Orders 5 and 7 are the subject of the appeal:
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 child].
…
3.Pursuant to Rule 2.08 of the Federal Circuit Court Rules 2001 leave is granted to the relevant officer of the Attorney General’s Department and any person appointed as the manager of the affairs of the [mother] to have a copy of any court document filed in these proceedings.
…
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 [father] 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 [mother] [sic] is filed 4:00 pm on 6 April 2016, and no application by the [mother] or the Independent Children’s Lawyer has been made by 4:00 pm on 6 April 2016, all outstanding applications will stand dismissed.
The Appeals
Appeal NA 26 of 2015 against the Orders made on 3 March 2015
The written submissions supporting the ground of appeal raise a number of issues, which can be summarised as follows:
a)That the primary judge erred in law by:
…misapprehending the effect of the Guardianship and Administration Act 2000 and in failing to appreciate that decisions made by the Public Guardian as the mother’s substituted decision maker for this legal matter (such as the decisions to respond to the proceedings and seek certain parenting orders) were binding upon her.
b)That the primary judge erred by interpreting the submissions of the Public Guardian for the mother as seeking to provide justification for refusing to consent as the mother’s litigation guardian.
c)That the primary judge erred by taking into account irrelevant considerations, namely whether the Public Guardian was justified in not acting as litigation guardian.
d)That the primary judge erred by failing to take into account relevant considerations, including:
37. …
· ...
o the nature of the matter and the issues under consideration;
o that the matter had been progressing;
o the terms of the legislation under which the [Public] Guardian operated as substituted decision maker;
o that, as his Honour observed at [71]:
the responsibilities and duties relating to [the mother’s] participation in the present proceedings are squarely within the [Public] Guardian’s bailiwick. Section 33(1) of the Guardianship and Administration Act authorises the [Public] Guardian to do the things specified in that section. It does not oblige the [Public] Guardian to act. However the written submissions from the [Public] Guardian tend to suggest that he will act to assist [the mother] in the proceedings to the extent to which he sees it necessary;
o the ability of the mother’s solicitor to receive and act upon the instructions of the Public Guardian and the consequential ability of the mother’s solicitor to conduct proceedings in a just, efficient and economical way (cf rule 1.03);
o that the father was unlikely to suffer any prejudice were a litigation guardian not appointed – this was particularly so in light of his Honour’s observations that the mother was at no real risk of an adverse costs order (at [73]-[74]);
o that the request of the Attorney-General to appoint a manager of affairs was likely to be futile and there was no one else to act as litigation guardian;
o that the almost certain consequence of refusing to dispense with rule 11.09 was that the proceedings would be dismissed or stayed indefinitely, which had serious consequences for the family involved and in particular the child… ;
o that allowing the matter to proceed was in the best interests of the child (B v B [2003] Fam CA 105);
(original emphasis)
e)It was also submitted that the primary judge erred in law by failing to distinguish the position in SFTB v Minister for Immigration [2003] FCAFC 108 from that of the mother in the present case.
Counsel for Legal Aid advised the court that it adopted and relied on the submissions of the Public Guardian, and submitted that the result was unreasonable and unjust (per House v The King). In oral submissions, Mr Allen QC made the important point that even if there was an appointment of a litigation guardian, the mother would still remain personally bound by court orders. In other words, the mother would be in the same position in relation to the effect of court orders irrespective of whether a litigation guardian is appointed. In addition, it is obvious that once the litigation is concluded, so is the role of the litigation guardian. To the extent that there is concern about future enforceability of court orders, there would be no role for a litigation guardian.
In addressing these submissions it is convenient to do so under the following headings.
That the Public Guardian’s reasons for refusing to consent to act were irrelevant
It is submitted that the primary judge had unnecessary regard to, or placed undue weight upon, the Public Guardian’s reasons for refusing to consent, in particular, the following paragraph of the written submissions at the hearing:
8.With regard to family law proceedings, the [Public] Guardian is mindful that given the factual nature of any dispute, he is clearly not in a position to provide instructions to any legal representative regarding the nuances of the dispute. However as a substituted decision maker, he will provide assistance to the adult, in this case, [the mother] in so far as she is able to participate in the process and protect her rights and interests in any proceedings.
The Public Guardian submits that the paragraph in question was set out in the background section of the written submissions, and it was in [13] – [17] of those submissions that the primary judge should have directed his attention, as it set out the practical options available to the court. The Public Guardian contends that [8] above simply “stated the obvious” and the evaluation of the validity of the Public Guardian’s position was an irrelevant consideration in the exercise of discretion.
In considering [8] above, his Honour concluded:
66.However, the submission that “the Adult Guardian is mindful that given the factual nature of any dispute, he is clearly not in a position to provide instructions to any legal representative regarding the nuances of the dispute” misapprehends the role of a litigation guardian. It is not necessary for a litigation guardian to have any knowledge, personal or otherwise, of the facts of the dispute at hand in the way in which the Adult Guardian seems to imply …
As I have already mentioned, the primary judge went on to consider in considerable detail (at [66] – [71]) the statements of Hodgson J in Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 at 203, and determined that the argument was misconceived.
I find it to be correct, as the Public Guardian contended, that [8] was a statement to provide context to the matter, and not a substantive argument. It is also correct that the primary judge, in taking this into account, improperly gave weight to what is an irrelevant consideration.
The need for final orders
One relevant consideration is that this was a parenting matter. It is in the best interests of the child to determine the parenting arrangements as soon as possible. It is clear on the evidence that prior to the mother’s acquired brain injury, she was the primary carer for the child. After her recovery from hospital, the mother had regular time (albeit supervised) with the child and remained, to the extent possible, an active parent.
It is clear that the primary judge was faced with a difficult decision. In order to determine the child’s living arrangements, his Honour first had to be satisfied that the mother had adequate representation. Rather than focusing on the Public Guardian’s reasons for refusing to consent, greater attention should have been given to the scope and effect of the powers the Public Guardian had under the Guardianship Act.
That the Public Guardian was empowered to do all things necessary for the mother
A significant consideration is the submission that the mother is bound by the decisions of the Public Guardian by virtue of the Guardianship Act, and therefore a Litigation Guardian is not required. Counsel for the Public Guardian directed our attention to the relevant legislation:
33Power of guardian or administrator
(1)Unless the tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian's appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised.
…
Schedule 1 Principles
…
10 Appropriate to circumstances
Power for a matter should be exercised by a guardian or administrator for an adult in a way that is appropriate to the adult's characteristics and needs.
…
Reference was also made to s 7 of Schedule 1 of the Guardianship Act, the heading for the provision being “Maximum participation, minimal limitations and substituted judgment”.
It was argued that this power, although not expressly stated, was implicit – otherwise the Guardianship Act would have no purpose. These sections provide the Public Guardian with the requisite authority to act on the mother’s behalf, with reference to the principles contained in Schedule 1.
Counsel for the ICL expressed concern that s 33 of the Guardianship Act, and the general principles found in Schedule 1, do not expressly give the Public Guardian power to make decisions which bind the mother. However, counsel did acknowledge that the ICL would not be adverse to a finding by the court that the Guardianship Act did give the Public Guardian the requisite power, so long as the following primary concerns were addressed:
a)That the Public Guardian would continue to give proper instructions to Legal Aid; and
b)That any orders made would bind the mother.
During the appeal hearing, a question was raised – although the Public Guardian’s decisions personally bind the mother, who then would bear the consequence if the mother were to breach an order? Counsel for the Public Guardian responded that any decision made on the mother’s behalf by virtue of the Guardianship Act binds the mother personally, and the mother would remain personally liable if any orders flowing from those decisions were breached.
It was argued that this leaves the mother in the same position as if she had a litigation guardian. As the term of the litigation guardian’s appointment would cease once final orders were made, the mother might still breach such orders well beyond the term of a litigation guardian. Rule 11.09 provides that by way of a litigation guardian, a person may start, continue, respond to or seek to be included as a party to a proceeding. It follows that once the proceeding ends so too does the litigation guardian’s appointment.
A reading of the Guardianship Act demonstrates that the Public Guardian does have authority to make decisions which will bind the mother during the course of the litigation. The mother remains personally liable for the consequences of any orders. This position can be distinguished from those of the infants in SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426 and SFTB v Minister for Immigration [2003] FCAFC 108, where it was found the “tutor” did not have the requisite authority to act on their behalf. Here, the Public Guardian has such authority – in accordance with the principles set out in Schedule 1 of the Guardianship Act, which includes taking into account the mother’s views, characteristics and needs.
The primary judge considered whether r 11.09(1) of the FCC Rules should be dispensed with at [63] – [78] of his reasons. It was correctly acknowledged that he had the power to dispense with the rules, if it were in the interests of justice to do so.
The primary judge declined to exercise his discretion to dispense with the rules, finding that the outcome would not bind the mother, and that there was “no good reason” to dispense with the rules:
76.The outcome will not bind [the mother] and although parenting orders are never final in some senses, there is a significant impediment to further litigation about parenting matters once final orders have been made presented by the principles discussed in cases like Marsden & Winch [2009] FamCAFC 152. However, if the present proceedings are conducted without a litigation guardian, [the mother] may not be subject to those impediments. It is difficult to see how a “just” resolution of proceedings could be achieved without the appointment of a litigation guardian.
…
79.Without the [Public] Guardian’s consent to his appointment as litigation guardian in the proceedings for [the mother], the Court is bereft of power to appoint the [Public] Guardian as [the mother’s] litigation guardian.
80.However, no good reason has been demonstrated by Legal Aid Queensland, or the [Public] Guardian, to dispense with compliance with FCCR 11.09(1). I am not satisfied that it is in the interests of justice to dispense with compliance with FCCR 11.09(1). The application by Legal Aid Queensland in that respect must be dismissed.
In my view, the primary judge was not correct. The Public Guardian will be able to take instructions from the mother to the extent she is able to communicate them, and brief Legal Aid to appear on her behalf – confirming an informal arrangement which has already occurred. Further, counsel for the Public Guardian advised us during the appeal hearing that he would provide an undertaking to apply to have its term extended, should the substantive parenting proceedings continue beyond its current term expiring on 25 May 2016.
In circumstances where the court can be satisfied that the mother’s interests could be adequately represented and protected, and where there is no barrier to dispensing with compliance with r 11.09, it is clear the primary judge should have accepted Legal Aid’s application to dispense with the FCC Rules.
That the result was unreasonable and unjust
Counsel for Legal Aid, in support of the submissions raised by the Public Guardian, noted that even if some findings of the primary judge were correct, in any event the result was unreasonable and unjust. Counsel referred to House v The King.
The appeal must succeed. The primary judge erred in finding that the Public Guardian lacked the authority to make decisions in the litigation to bind the mother, and that he could not instruct Legal Aid on the mother’s behalf to advance the parenting proceedings. Further, the primary judge erroneously placed weight on an irrelevant consideration i.e. the position taken by the Public Guardian. The consequence of refusing to dispense with the FCC Rules means there is no doubt that the result is manifestly unjust as the proceedings risk being permanently stayed, dismissed or abandoned. This cannot be in the best interests of the child.
The orders made on 23 December 2013 provided for the child to live with the father, and spend certain supervised time with the mother. During the hearing on 7 April 2015, Legal Aid orally applied for a variation of the orders of 23 December 2013 to reflect the child’s living arrangements as they were at that time, but was unable to do so because it did not have the requisite authority.
As the history of these proceedings demonstrates, and the more recent evidence contained in the affidavit of Kyle Peta Terrance from Legal Aid, there is no stability or security in the child’s living arrangements.
Conclusion
To answer the two issues set out at the introduction to these reasons – the FCC Rules requiring a litigation guardian may be dispensed with in circumstances where a Public Guardian has been validly appointed, and agrees to instruct solicitors for the party who suffers incapacity, in order to progress the substantive proceedings. The appeal must succeed.
Appeal NA 27 of 2015 against the Orders made on 7 April 2015
In finding that the first appeal must succeed, it is an obvious consequence that this appeal will also succeed, and the stay must be lifted to allow the parenting proceedings to continue.
Outcome
We should re-determine the exercise of discretion and make the orders sought before the primary judge. For the reasons expressed in relation to the appeals the necessary orders should be made dispensing with the provision requiring a litigation guardian in this case.
Costs
At the conclusion of the hearing of the appeal, we asked the parties for submissions on costs.
No party sought any orders as to costs.
Strickland J
I have had the advantage of reading the separate reasons for judgment of May J and Austin J.
I agree with the outcome of the appeals and the orders proposed, and I generally agree with the reasons for judgment of each of my colleagues.
Austin J
I have read the draft reasons of May J, with which I generally agree.
Given that the Public Guardian’s applications for leave to appeal and to adduce additional evidence in the appeals were eventually conceded, the essence of the appeals was the validity of the trial judge’s decision on a procedural point that had the effect of depriving the mother of her right to be heard in the proceedings.
The trial judge decided not to dispense with the ordinary requirement under the FCC Rules for the appointment of a litigation guardian for the mother, notwithstanding the Public Guardian’s appointment under State legislation for the express purpose of making decisions for the mother, including decisions about her conduct of the parenting proceedings then being heard by the trial judge.
The decision of the trial judge to refuse the joint application of the Public Guardian and Legal Aid to dispense with the need for the Public Guardian’s additional appointment as the mother’s litigation guardian was wrong for two reasons.
First, the decision was founded upon error. The trial judge asserted that, without the appointment of a litigation guardian under the Rules, the parenting orders made by his Honour would not bind the mother (at [76]), but that was incorrect.
The mother had no litigation guardian appointed for her when the trial judge made further procedural orders on 7 April 2015 and it was beyond doubt she is bound by those orders. If the trial judge proceeded to determine the litigation by final orders, those orders would also bind the mother, whilst ever they remained in force. That would be so regardless of the mother’s participation in or absence from the proceedings, and if absent, regardless of whether her absence was by voluntary choice or as a consequence of her not having a litigation guardian.
The formal appointment of a litigation guardian for the mother to enable her future participation in the litigation would not affect the enforceability of the Court’s orders. A litigation guardian only assumes the mantle of a party for the conduct of the litigation – not vicarious liability for subsequent compliance with the Court’s judgment. Once orders are made determining the proceedings, the role of the litigation guardian is at an end and the orders bind the parties, just as when no litigation guardian is appointed.
Second, the decision was unreasonable and unjust (see House v The King (1936) 55 CLR 499) because it denied the mother her voice in the proceedings when, as the trial judge properly found, the Public Guardian was both entitled and obliged under his statutory remit to instruct the mother’s lawyers in the proceedings. The trial judge recognised the Public Guardian had sufficient authority to make decisions for the mother and to instruct lawyers on her behalf in the proceedings before the Court (at [38]), since the responsibilities and duties relating to her participation in the proceedings fell squarely within the Public Guardian’s bailiwick (at [71]). The Independent Children’s Lawyer’s submission to the trial judge (at [64]) that, absent formal appointment as the mother’s litigation guardian in the proceedings, the Public Guardian would be unable to instruct the mother’s lawyers on her behalf was wrong.
The Public Guardian’s appointment as the mother’s litigation guardian would have been a pointless formality: it would add nothing to the Public Guardian’s authority over the mother and the absence of such appointment would not detract from the efficacious conduct of the litigation.
The only utility of the Public Guardian’s appointment as the mother’s litigation guardian would have been to render the Public Guardian liable to pay costs on the mother’s behalf – if any costs order was to be made against her in the proceedings. However, as the trial judge noted (at [73]-[74]), the prospect of any costs order being made in the proceedings was quite remote. The trial judge gave cogent reasons why, but the three most obvious reasons were that s 117(1) of the Act applied, the Public Guardian was fulfilling a statutory duty for the mother, and, since the father was self-represented, he had no professional legal costs to recoup (see Cachia v Hanes (1994) 179 CLR 403).
The consequence of the trial judge’s orders, made on 3 March and 7 April 2015, was the permanent stay of the proceedings. In such circumstances, the interim parenting orders made in December 2013 continue in force, but it was common ground those orders are being flouted. The orders require the child to spend time with the mother, but the father has not allowed that to happen since May 2015. The mother can do nothing to enforce the orders because the trial judge’s orders do not allow her to move the Court without a litigation guardian. Such an untenable outcome cannot be allowed to stand.
I agree with the orders proposed by May J. Such orders will enable the proceedings to be fixed for final hearing. The mother will not have a litigation guardian, but the Public Guardian will perform his statutory duty and instruct the mother’s solicitors in the proceedings.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 October 2015.
Associate:
Date: 21 October 2015
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