Rainger & Cadis - [2023] FedCFamC2F 591

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rainger & Cadis [2023] FedCFamC2F 591

File number(s): MLC 3515 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 22 May 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Mother needs a litigation guardian – parenting case with high risks – both parents have intellectual disabilities – both parents and independent children’s lawyer in receipt of legal aid – experienced family law practitioner willing to act as litigation guardian – inability to secure funding – family report released – inability to progress the matter without a litigation guardian – disability conventions – access to justice

Legislation:
Federal Circuit Family Court of Australia Rules (2021), rr 3.15, 3.16(5), 3.18, 6.11(1)

Convention on the Rights of Persons with Disabilities. Open for signature 13 December 2006. A RES 61 (entered into force 03 May 2008)

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Diversity, dignity, equity and best practice: a framework for supported decision-making (Royal Commission, January 2023)

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Interim Report (Royal Commission, October 2020)

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability Issues paper – Promoting inclusion (Royal Commission, December 2020)

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - The United Nations Convention on the Rights of Persons with Disabilities: An assessment of Australia’s Level of Compliance (Royal Commission, October 2020)

Roundtable Supported decision-making and guardianship: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Summary report (Royal Commission, October 2022)

Cases cited:
Connor & Hurlett [2011] FamCA 196

Public Guardian (Queensland) & Beasley and Anor (No. 2) [2015] FamCAFC 201

Division: Division 2 Family Law

Number of paragraphs: 58

Date of hearing: 5 May 2023

Place: Melbourne

Solicitor for the Applicant Romer Maud Family Lawyers

The Respondent Ms Cadis

Independent Children’s Lawyer Bowlen Dunstan And Associates

Other Medson Legal as Amicus Curiae
ORDERS

MLC 3515 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RAINGER
Applicant

AND:
MS CADIS
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE HARLAND

DATE OF ORDER:

22 May 2023

THE COURT ORDERS THAT:
1.The mother’s solicitor be at liberty to provide a copy of these reasons to Victoria Legal Aid and any other funding body.

THE COURT DIRECTS THAT:
2.Judicial Registrar B provide a copy of these reasons to the Commonwealth Attorney-General’s Department.

AND THE COURT NOTES THAT:
A.This matter is listed for further mention before Judge Harland on 7 August 2023 by which time is hoped, the funding issue for the litigation guardian has been resolved so that the substantive proceedings can be progressed.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rainger & Cadis

Details

AGLC: Rainger & Cadis [2023] FedCFamC2F 591
Case: [2023] FedCFamC2F 591
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) is dealing with a case concerning parenting arrangements for two children, X and Y. The mother, who has an intellectual disability, is in need of a litigation guardian due to her cognitive limitations. Both parents are in receipt of legal aid funding, as is the Independent Children's Lawyer. The court has identified Mr. Lampe, an experienced family and independent children's lawyer, as a willing candidate to act as the litigation guardian for the mother. However, the court faces the challenge of securing funding for the litigation guardian as the mother does not have the financial means to pay for a professional guardian and lacks family or friends who can fulfill that role.

The primary legal issue before the court was whether funding could be secured for the litigation guardian, given that both Victoria Legal Aid and the Department of Families, Fairness and Housing had refused to provide funding. The court considered the Convention on the Rights of Persons with Disabilities and the importance of access to justice for individuals with disabilities. The court also took into account the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, which emphasized the need for supported decision-making and the importance of addressing the barriers faced by individuals with disabilities in exercising their rights.

The court found that it was unreasonable to expect a professional to act as a litigation guardian without any funding, especially when all other lawyers in the proceedings had been funded by Victoria Legal Aid. The court emphasized that it was not in the interest of justice for the case to remain at a standstill due to the inability to secure funding for a litigation guardian. The court also highlighted the need for addressing the gap in funding and support for those in need of a litigation guardian who are not under some sort of state guardianship order and do not have any funds to pay for a litigation guardian.

In conclusion, the court hoped that funding could be found for the mother's litigation guardian so that the proceedings could be concluded with the mother being heard. The court also hoped that the challenges with respect to finding appropriate litigation guardians for those without funds and individual unpaid supports could be addressed in the future. The court directed that Registrar B provide a copy of these reasons to the Attorney General's Department and that Ms. Medson and the Independent Children's Lawyer be permitted to provide a copy of these reasons to Victoria Legal Aid.

Orders