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
ApplicantAND: MS CADIS
RespondentINDEPENDENT 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 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 Rainger & Cadis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
This case raises fundamental issues about access to justice for litigants with a disability and highlights a gap in funding where a litigant is in need of a litigation guardian, but does not have the financial means to pay for a professional and does not have family or friends who are able and willing to stand in that role.
The substantive case concerns parenting arrangements for two children; X, born in 2012, aged 11 and Y, born in 2013, aged nine. Before the commencement of these proceedings, the children lived with the mother and spent regular time with the father. Currently, the children live with the father and spend limited daytime periods with the mother.
The father commenced these proceedings in March 2021, in circumstances where serious concerns were raised about the children’s safety in both the paternal and maternal family’s households. The concern in the mother’s household related to the risk posed by her partner, Mr C, particularly regarding his criminal history, which I elaborate in further detail below. Before addressing the issue of the litigation guardian, I will refer to the expert reports in order to provide some context.
Both parents are in receipt of legal aid funding, as is the Independent Children's Lawyer ('ICL'). Victoria Legal Aid (‘VLA’) also funded the psychological assessment conducted by Ms D. The Court has funded both the s.11F report and family report.
The respondent mother needs a litigation guardian due to her intellectual disability. A psychological assessment by Ms D confirms this. The mother is in an extremely vulnerable position. She is in a violent relationship and is socially isolated. The mother wants the children returned to her primary care. If unsuccessful in that application, she wants regular unsupervised time. There is no dispute that the mother needs a litigation guardian. The first issue was to find someone willing to act as litigation guardian. Mr Lampe, an experienced Family and Independent Children’s Lawyer is willing to act. The second issue now is securing funding for a litigation guardian.
THE DEPARTMENT OF FAMILIES FAIRNESS AND HOUSING’S INVOLVEMENT
When these proceedings commenced, the Department of Families Fairness and Housing (‘DFFH’’) and Victoria Police were carrying out investigations. DFFH appeared as amicus curiae on the first two occasions as there were serious risk concerns raised for the children in both parents’ households. There was a reported incident of violence between the paternal grandmother and Mr C and the paternal grandmother was being investigated about allegations that she had exposed the children to child abuse materials on her mobile phone. Those investigations were completed without any substantiation. However, there was concern that Y had been coached and that Mr C had encouraged her to make that allegation. When interviewed, Y used language that was beyond her comprehension.
Very serious concerns had also been raised about the risks in the mother’s household due to Mr C’s very serious criminal convictions, which include rape of a 16-year-old and torture and grievous bodily harm to a former partner. Concerns have also been raised with respect to the safety of his biological children.
It is troubling that since the mother formed a relationship with Mr C, they have now moved to a remote, isolated area on a farm and the mother and children have experienced family violence perpetrated by Mr C in various forms, including physical, emotional and coercive control.
The section 69ZW report from DFFH dated 11 July 2022 also refers to various reports made in 2019 and one in 2020, which expressed various concerns about the children and the mother and the paternal family. A concern was raised regarding the mother’s parenting and decision-making given her intellectual disability and lack of support resulting in a referral being made to G Family Services. DFFH closed those reports.
SECTION 11F REPORT- 28 JUNE 2021
The court child expert reported the parties making mutual allegations of family violence. They made admissions about family violence at the time that the parties separated in 2014 with an intervention order being taken out against the father for the protection of the mother for 12 months.
The parties reported that the mother formed a relationship with Mr C in 2021 after meeting online, with him relocating from Queensland to Victoria and initially living with the mother, the father and the children at the paternal grandmother’s home. Prior to meeting Mr C the mother had a good relationship with the paternal grandmother and received considerable supports from the paternal family. The relationship however quickly deteriorated and Mr C and the mother and children moved to a rental accommodation in Town E. The father expressed concerns that he thought Mr C was preventing the children from spending time with him and that he was isolating the mother and children in order to control them. The mother denied Mr C committing any family violence or using coercive controlling behaviours against her and the children. She knew that he had a criminal history but said she has a different impression of him and does not see him as a risk to her or the children.
The mother expressed concerns about the risk to the children of physical, psychological and verbal abuse if the paternal grandmother is present during the father’s time. The family consultant expressed concerns about the mother’s capacity to act protectively, including talking about the proceedings to the children and or denigrating family members in front of them. The mother told the family consultant that Mr C had a right to see the children and that they were engaged and plan to marry.
The court child expert thought that X, who was nine at the time of the interviews, had been influenced by conversations she had heard and talked about her mother and sister being sad about not being able to see Mr C. The father advised that X receives learning assistance at school.
Y was seven at the time of the report. The report writer thought Y had been influenced or coached to present Mr C positively given they only met in December 2020. Y also receives learning support. Y is blind in one eye as a result of an operation due to a medical condition.
PSYCHOLOGICAL ASSESSMENT – 8 APRIL 2022
A psychological assessment was completed by Ms D on 8 April 2022. Ms D found that the mother receives the disability support pension (‘DSP’) for an intellectual disability and has low intellect. She recorded that it had been reported that the mother cannot read or write. In summarising her intellectual capabilities, Ms D said that the mothers’ intellectual disability diagnosis indicates:
“severe deficits in thinking, reasoning skills, and adaptive behaviour skills.” [Ms D] went on to say, “her ability to learn, access, identify and apply rules, knowledge and concepts is in the extremely low average… They are also necessary to provide meaningful legal instructions and fully grasp the nature and consequences of legal proceedings.”
Ms D recommended that the Court consider appointing a litigation guardian for the mother.
Ms D noted that the father is also in receipt of the DSP because of an intellectual disability. However, Ms D stated that the father had slow cognitive processing. There is no suggestion that the father needs a litigation guardian. This serves to emphasise the fact that having a disability regardless of it being physical or mental does not automatically mean that a person is less able to parent than someone who does not have a disability.
FAMILY REPORT – 29 JANUARY 2023
A family report was completed by Dr F on 29 January 2023. Dr F referred to both parents having some form of intellectual and/or learning disability. The difference between them is that the father has extensive support from family and friends and the mother does not. The mother’s disability, poor judgement and decision-making raises concerns about the mother’s ability to protect and care for the children safely and appropriately. The mother does not show insight into this and wants the children returned to her primary care. If they are not returned her primary care, she wants the children on alternate weekends and half school holidays without any supervision. There are no concerns mentioned about the father’s ability to keep the children safe.
The father reported that before the mother met Mr C, the mother was able to care for the children at a basic level and had received many supports, particularly from the paternal grandmother. He said that Mr C has completely taken over her personality and controls her and that there has been multiple instances of verbal and physical abuse between the mother and Mr C, which the children were exposed to. The father also claims that the mother has poor boundaries and would manipulate the children into feeling sorry for her and to emotionally comfort her.
Both children have additional needs. The father said he and his family knew how to assist the children when they became emotional and non-compliant. The mother was challenged by Dr F about why the children were taken from her care and the concerns that DFFH and the Court had about the violence between her and Mr C which the children were exposed to as well as the poor care of the children. The mother in response commented that she had been treated unfairly and verbally attacked the father, and particularly the paternal grandmother.
The mother said that Mr C had been treated unfairly by the Court and that the children had been coerced by the father and his family to lie or exaggerate. The mother strongly disagreed with Ms D’s report. The mother did not appear to have much insight or understanding into the children’s special needs and said the children were not as bad as everyone says they were and not as at risk in her care.
Dr F concluded that the mother would be unlikely to be able to cope with any future shared parental responsibilities. Given her fixed stance and lack of insight, the orders would need to be prescriptive with little personal contact between the parties unless necessary.
Dr F interviewed X who spoke warmly of the father and his family and referred to the mother being good in the past but having changed since meeting Mr C and not being as nice. She referred to Mr C hurting her mother badly and smacking her and her sister and the mother letting him and there being a lot of yelling. She referred to Mr C being clever as he would be controlling everything at home but would not do anything in public. She was petrified of seeing Mr C and did not trust her mother to keep Mr C away from them and did not want sleepovers at her mother’s house.
Y spoke about her father, her sister and the paternal family positively. She spoke of being frightened of Mr C because of how badly he hurt the mother and them and that he would say horrible things about the children, blame them for things and the mother would say that he was not really a bad man and then begin lying to them, which she had not done before. She also does not want sleepovers with her mother, as she does not trust that her mother would not bring Mr C into contact with them and referred to Mr C’s control of the mother.
Both children spoke of the pressure that the mother had been putting on them to leave their father and also referred to how currently, the mother has been favouring Y over X, which hurts both sisters.
Dr F noted that it appeared that prior to the mother meeting Mr C, the parents got along reasonably well and the mother had been able to parent the children at a basic level with significant support from the father and his family. The mother could not take any responsibility for her actions, and claims she was the better parent and denied any family violence and thought Mr C should be able to be with her and the children freely. Dr F also thought that the mother had a poor understanding of what being a competent and safe parent was and had little understanding and insight into the children’s personalities, their strengths and vulnerabilities and medical issues.
It appeared to Dr F that, even away from Mr C, the mother would not be able to independently care for the children without constant supports, particularly as the children get older and may have more complex medical needs and personality issues.
Dr F recommends that the children live with the father and that the mother spend time with the children that is always substantially supervised by the father, the paternal aunt or other agreed person and that the children do not spend any time at the mother’s home while she remains in a relationship with Mr C.
One of Dr F’s recommendations is that the mother should engage with G Family Services or another suitable agency, including National Disability Insurance Scheme (‘NDIS’) in order to gain ongoing everyday lifestyle support and parenting support. There is no evidence that the mother has ever sought NDIS supports and this is not something that she would be able to seek and do on her own. This appears to be another gap in the system that if it relies on and assume that people have informal supports freely available to them to help them navigate complex systems to access their entitlements.
SUMMARY OF COURT APPEARANCES
It is useful to provide a summary of the Court appearances since the proceedings began:-
(1)1 April 2021 was the first return date. The Court appointed an ICL and asked DFFH to intervene.
(2)The second return date on 26 April 2021 was adjourned as DFFH had not completed their investigation. The Court noted that the father wished to agitate his interim application on the next occasion. The parties agreed to interim parenting arrangements without prejudice to their applications that the children live with the mother and spend time with the father and for the mother to be in substantial attendance when Mr C was present.
(3)On 25 May 2021 the Senior Judicial Registrar made interim orders injuncting the mother from bringing the children in contact with Mr C and provided for the children to live with the mother and spend time with the father on alternate weekends. The Senior Judicial Registrar also ordered that the parties attend upon a court child expert for a s.11F report. The mother was also ordered to use her best endeavours to find emergency and refuge accommodation close to the City H area to facilitate the children’s continued attendance at their school.
(4)On 6 July 2021, the Senior Judicial Registrar made further orders for the mother to provide the children to the father and for the children to live with the father at the paternal aunt’s home and the mother to spend daytime periods with the children. An injunction was made restraining the mother from bringing the children into contact with Mr C. The Senior Judicial Registrar also ordered the parties to attend upon Ms D for a psychological assessment. Ms D was asked to consider as part of her assessment, whether or not the mother understands the nature and possible consequences of the proceedings and/or was able of adequately conducting or giving adequate instruction for the conduct of the proceedings. This order was made in the context of the mother’s solicitor, Ms Medson filing an application for the appointment of a litigation guardian for the mother on 10 June 2021 due to her concerns that the mother did not fully understand the nature of the proceedings. The mother refused to provide Ms Medson with details of her doctors and withdrew instructions, Ms Medson ceased acting for the mother shortly afterwards.
(5)On 14 February 2022 the mother appeared without legal representation. The Senior Judicial Registrar adjourned the proceedings reserving the parties’ costs.
(6)On 20 April 2022, the Senior Judicial Registrar made orders lifting the requirement for the father and the children to live with the paternal aunt and lifting the previous restraints on the paternal grandmother. Further, the father was permitted to live at the paternal grandmother’s home with the children, provided they were not left unsupervised in her care for a substantial period of time. A request for a litigation guardian for the mother was made in the following terms:-
[7] That pursuant to rule 6.11(1) of the Family Law Rules IT IS REQUESTED that the Attorney-General of the Commonwealth of Australia nominate, in writing, a person to be a case guardian for the Respondent [Ms Cadis] AND IT IS FURTHER REQUESTED that the case guardian be female.
(7)On 9 June 2022 the Senior Judicial Registrar made further interim orders for X to live with the paternal grandmother with the paternal uncle to be in substantial attendance whilst the father attended the J Medical Centre with Y for her medical treatment. The mother again appeared in person without legal representation and the Senior Judicial Registrar made an order varying the previous order requesting the appointment of a litigation guardian and made a further order in the following terms:-
[4] In accordance with Order 7 of the 20 April 2022 Interim Orders be varied to provide that pursuant to Rule 3.15 of the Federal Circuit and Family Court of Australia Rules (Family Law) Rules 2021, IT IS AGAIN REQUESTED that the Attorney-General of the Commonwealth of Australia nominate, in writing a person to be a Litigation Guardian for the Respondent Mother AND IT IS REQUESTED that consideration be granted to [Ms K] or [Mr L] be approached to consider that position.
[5] With reference to paragraph 4 herein, in the event that the Attorney-General of the Commonwealth of Australia is unable to appoint a Litigation Guardian, the Independent Children’s Lawyer (“ICL”) is requested to make special application to Victoria Legal Aid for funding for the appointment of a Litigation Guardian for the Respondent Mother [Ms Cadis] in the initial sum of five thousand dollars ($5000.00) AND IT IS REQUESTED that Victoria Legal Aid give special consideration to this request in circumstances where the Psychological Report of the Respondent Mother prepared by [Ms D], Clinical Psychologist, dated 8 April 2022 confirms the need for the Respondent Mother to have a Litigation Guardian AND the ICL shall be permitted to provide a copy of the Report of [Ms D] referred to in this paragraph to Victoria Legal Aid.
(8)I note that Ms K and Mr L are experienced lawyers. Mr L has often acted as a litigation guardian.
(9)On 13 July 2022, the parties appeared before the Senior Judicial Registrar again. The mother appearing in person without legal representation and the following notation was made:-
[A] That the Court considers it appropriate and necessary for Victoria Legal Aid to grant funding to [Ms Cadis] for a litigation guardian with particular reference given to page 22 of [Ms D’s] [sic] psychological assessment of [Ms Cadis] dated 8 April 2022.
(10)On 5 September 2022, the Senior Judicial Registrar vacated the upcoming Court date before them in October 2022 and listed the matter for a readiness hearing before me on 7 March 2023.
(11)On 9 March 2023, the mother appeared unrepresented before me. Orders were made appointing Mr Lampe as the mother’s litigation guardian subject to obtaining a grant of funding from VLA to cover Mr Lampe’s fees. The Women’s Legal Service appeared as amicus curiae and tried to give assistance to the mother. I released the family report prepared by Dr F dated 29 January 2023 to the parties. I did not want the report to simply be sent to the parties without anyone to explain it to the mother. My chambers were subsequently informed that Women’s Legal Service could not assist the mother in the interpretation of the family report as Mr C allegedly refused to allow them to speak to the mother on her own. This is troubling.
(12)On 28 March 2023, Ms Medson appeared as amicus curiae. She made submissions to the Court that she is ready and willing to act for the mother again but cannot do anything without a litigation guardian to instruct her. The parties advised that the application for litigation funding had been made to VLA and that Mr Lampe was ready, willing and able to act as litigation guardian and to instruct Ms Medson in the proceedings once funding has been secured.
(13)The parties next appeared before me on 4 May 2023 with Ms Medson again appearing as amicus curiae. She tendered a letter from VLA dated 1 May 2023 granting legal aid for the mother but refusing a grant for the litigation guardian.
The matter would be ready to be listed for trial were it not for the absence of a litigation guardian for the mother. The issue of finding a litigation guardian for the mother has taken up some considerable resources to date. It has been listed on three occasions before myself, solely trying to advance this issue. Ms Medson and Mr P in this matter have both made considerable efforts to find a litigation guardian. Mr Lampe, an experienced family lawyer who does much ICL work is ready, willing and able to act as a litigation guardian for the mother subject to funding.
The proceedings have now significantly been stalled as it would not be appropriate to conduct the trial without a litigation guardian or as if it was on an undefended basis when it clearly is not. Ms Cadis wants to be heard and she should have the opportunity to be heard and present her case in a way that does not deny her from receiving equality before the law.
RESPONSES FROM THE ATTORNEY-GENERAL DEPARTMENT
In this case, on 1 June 2022, the Attorney-General's Department responded to the Court's first request having undertaken extensive enquiries. Their response is set out accordingly below:-
Thank you for the correspondence regarding the appointment of a litigation guardian for [Ms Cadis] in the matter of [Rainger & Cadis] MLC3515/2021. I apologise for the delay in getting back to you. I can confirm that the department has exhausted all avenues, and unfortunately we have been unable to source a litigation guardian for this matter.
The following organisations have confirmed they are unable to assist with this matter, either due to resourcing or a limited scope in the services they provide:
•Office of the Public Advocate (Vic)
•Victoria Legal Aid
•AED Legal Centre
•M Organisation
•N Support Services
•Citizen Advocacy
•Region O Citizen Advocacy
As you are aware, the department is considering options to improve the appointment process but we expect that will take a few months yet to identify solutions. We have also been following the Disability Royal Commission and the submissions by and hearings with disability advocates about challenges and opportunities for better supporting people with impaired capacity. We will arrange a follow up meeting with the courts about this issue shortly.
The Senior Judicial Registrar made a further request to the Attorney-General’s Department on 9 June 2022. That order is set out above. I note it specifically refers to a request that the ICL make an application for special funding to VLA if the Attorney-General's department is unable to assist. The Attorney-General's department was not able to assist further.
REFUSAL OF FUNDING
VLA has also rejected the request for special funding. In their letter dated 1 May 2023, VLA confirmed the grant of aid for the mother's lawyer but refused the special funding request for a litigation guardian but said the following:-
As the role of the litigation guardian is to stand in the shoes of the litigant and provide instructions to the lawyer, there is no requirement for the litigation guardian to be a lawyer. Often, the litigation guardian is a friend or family member that undertakes the role free of charge. We do not consider it reasonable to pay for a guardian. We do not consider the role of litigation guardian to be forensic. We do not consider it part of VLA's responsibility to fund litigation guardian.
Assistance for funding for a litigation guardian is refused. The amount being sought as a grant from VLA at first instance of $5,000 is comparatively modest. Whilst this challenging issue remains unresolved, the parties' lawyers and the ICL have been funded by VLA to attend multiple Court events aimed at trying to address this issue. To their credit in this case, the lawyers have found a person willing to take on that role which is not always the case.
Rule 3.18 of the Federal Circuit and Family Court Rules (2021) addresses costs and expenses of the litigation guardian noting that the Court can order a party to pay or it can be paid from the income and/or assets of the person for whom a litigation guardian is appointed but it is silent about what may occur when neither of these funding sources are available.
Whilst it is possible to dispense with the rule for a person in need of a litigation guardian to have a guardian appointed to them, the effect of the rule is that once an order for a litigation guardian has been made, only the litigation guardian can bring or continue an application. No one seeks the Court dispense with the rule. To discharge that order solely because there is no funding for a litigation guardian would do the mother a disservice and would be a breach of her rights under the Convention on the Rights of Persons with Disabilities (‘the Convention’).
This situation is different from the circumstances of a litigant, who is unable to fund a lawyer, appearing for themselves in Court proceedings. The Full Court considered this issue in Public Guardian (Queensland) & Beasley and Anor (No. 2) [2015] FamCAFC 201. The Full Court allowed the appeal from an order refusing to discharge the order for a litigation guardian. However, the circumstances of that case were very different as the mother had a Public Guardian pursuant to State Court orders. The Public Guardian did not consent to being appointed as a litigation guardian and asked the primary Judge to dispense with the rule so that the Public Guardian could instruct the mother’s legal aid lawyers.
The Public Guardian was willing to assist and give instructions to the mother’s lawyer but opposed being appointed as litigation guardian under the rules because of the factual matters in dispute and the Public Guardian’s inability to provide instructions about those matters. I pause to observe here, that this is a quandary that many litigation guardians face even if they are a friend or family member. The Public Guardian was also concerned about the risks of a costs order being made against them if they were a party.
The Full Court concluded that it would be manifestly unjust not to allow the appeal, as the Public Guardian was not able to instruct the mother’s lawyers and without dispensing with the rule, the proceedings were at risk of being permanently stayed, dismissed or abandoned which could not be in the best interests of the child.
Litigation guardians are relatively rare particularly in parenting matters. They tend to be more commonly appointed in property matters where there is a source of funding for a litigation guardian. That is not the case here, but the circumstances of this case are such that it is crying out for VLA funding or funding from the Attorney General’s office. The difficulties faced by the parties and lawyers in this case are not new. In Connor & Hurlett [2011] FamCA 196, Murphy J expressed concern at the delays in a parenting case due to the inability to find a litigation guardian for the father. At paragraph 50 of his Honour’s reasons he referred to previous reasons where he referred to at paragraph 22:
The Court’s processes, including the legislation and rules which govern it, contemplate a process whereby the Attorney-General appoints a case guardian so as to obviate the very sorts of difficulties that have occurred in this case. The difficulties encountered by the independent children’s lawyer...in having a case guardian appointed in this case in accordance with the Court’s rules are deposed to in an affidavit by [the independent children’s lawyer] filed in these proceedings.
He also referred to the correspondence between the Court’s Principal Registrar and the Attorney-General’s Department who responded after nine months. Murphy J sets out the response at paragraph 26.
The Court’s processes, including the legislation and rules which govern it, contemplate a process whereby the Attorney-General appoints a case guardian so as to obviate the very sorts of difficulties that have occurred in this case. The difficulties encountered by the independent children’s lawyer...in having a case guardian appointed in this case in accordance with the Court’s rules are deposed to in an affidavit by [the independent children’s lawyer] filed in these proceedings.
In this case, the proceedings are unable to progress without a source of funding for the litigation guardian being found. That cannot be in X and Y’s best interests. Furthermore, it cannot be in the interests of justice for the mother to be deprived of her right to be heard. The mother cannot effectively present her case without a litigation guardian. It cannot be assumed that the outcome of the parenting proceedings are a foregone conclusion given the expert reports. That would improperly pre-determine the matter without the evidence being tested and would improperly elevate the status of expert reports which are a piece of evidence to be tested at trial.
The fact that the litigation guardian stands in the mother’s shoes in the proceedings does not mean she does not have a voice at all. The litigation guardian will no doubt meet with the mother, try to assert her views, and seek to explain the concerns raised in the expert reports. It may be that the litigation guardian is left in a position of having to substitute their decision-making for hers rather than engage in supported decision-making but that will be a matter for the litigation guardian to determine.
As previously stated, the mother used to have a good relationship with the father and his family but those relationships have since broken down. It is no answer to rely on the goodwill of advocacy groups to take on the role of a litigation guardian for no fee. Whilst the request for VLA funding is an unusual one, it is appropriate given the mother’s special circumstances and the disadvantages she faces. In my experience, it is also more likely that the parenting proceedings will resolve with the assistance of a litigation guardian.
The mother does not have a manager of affairs who can be requested to act as litigation guardian.[1] The Court is not aware of the mother being the subject of any state guardianship order.
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND THE ROYAL COMMISSION INTO VIOLENCE, ABUSE, NEGLECT AND EXPLOTATION OF PEOPLE WITH DISABILITY
[1] See rule 3.16(5) of the Federal Circuit and Family Court Rules 2021
Australia signed the Convention on 17 July 2008. Article 12 of the Convention addresses the importance of people with disabilities having equal recognition before the law. Article 13 refers to the importance of access to justice on an equal footing with others. I set out the wording of articles 12 and 13 in full:-
Article 12 – Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5.Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property
Article 13-Access to Justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
The Royal Commission into Violence, Abuse, Neglect and Exploitation of people with Disability (‘The Royal Commission’) is also carrying out significant work in identifying the barriers that people with disabilities face in exercising their rights as equal citizens and having the right to all human rights and freedoms including respect, dignity and individual autonomy. The terms of reference are broad and define people with disabilities as being
People with any kind of impairment, whether existing at birth or required through illness, accident or the ageing process, including cognitive impairment and physical, century, intellectual, and psychosocial disability.
The Royal Commission notes that legal capacity is distinct from mental capacity.[2] Mental capacity refers to the individual capacity and this varies, whereas legal capacity is constant. People may need support in order to exercise their legal capacity. The Royal Commission has also recognised the importance of providing a framework for supported decision-making, moving away from substituted decision-making and operating paternalistically. It acknowledges that this is a continuum of support in the type of support and the degree of support a person may need, depending on the nature of the type of decision to be made.
[2] See Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Interim Report (Royal Commission, October 2020) and Roundtable Supported decision-making and guardianship: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Summary report (Royal Commission, October 2022).
The Royal Commission also recognised in its research report that many people with cognitive disabilities are socially isolated and may not have any unpaid supports.[3] This is the situation the mother is in. She does not have any family or friends to assist her. The only constant person in her life currently it appears is Mr C and given the risk concerns about him, including his control of the mother, he would not be an appropriate litigation guardian. It would be regretful to not acknowledge that the barrier Ms Cadis is facing in receiving a litigation guardian is a direct example of the shortfalls in our justice system that are creating further difficulties for persons with a disability to exercise their rights as equal citizens under the law.
[3]See 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 - Diversity, dignity, equity and best practice: a framework for supported decision-making ( Royal Commission, January 2023) and 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).
CONCLUSIONS AND HOPES FOR THE FUTURE
The difficulty of the circumstances of this case has led me to write these reasons in order to bring attention to these issues. The purpose is not to be critical of either VLA or the Attorney- General's Department as these are unusual circumstances that do not regularly arise. However, whilst it is unusual, it is the type of issue that will arise and currently highlights a significant gap in our system of justice.
This case involves matters of serious risk with vulnerable children and the mother being in a vulnerable position. It is not in the interest of justice for the case to be at a standstill due to the inability to secure funding for a litigation guardian. Whilst I accept it is not always necessary for a litigation guardian to be legally qualified, in this case it is utterly appropriate to seek an experienced lawyer to step into that role, given the lack of anybody else being available to assist in this capacity. It is unreasonable to expect a professional to act in what is a difficult position without any funding. This is particularly so, when there has been funding granted by VLA to all other lawyers in the proceedings including a lawyer to represent the mother. The mother’s lawyer cannot take any steps in the proceedings without a litigation guardian to instruct her.
The mother’s cognitive disabilities are permanent. This is not a matter where her capacity is going to change. Having established the need for a litigation guardian, the Court cannot ignore this, simply because funding for a litigation guardian cannot be secured.
Clearly, there is a gap in funding and supports 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. The need for litigation guardians in proceedings is comparatively rare but is an important issue and this gap needs to be addressed in order for Australia to meet its obligations not only with respect to the Convention, but also the value Australian society places on access to justice for all and equality before the law.
By highlighting these issues in these reasons, the Court hopes that funding can be found for the mother’s litigation guardian, so that the proceedings can be concluded with the mother being heard. It is also hoped that the challenges with respect to finding appropriate litigation guardians, particularly for those without funds and individual unpaid supports can be addressed. It is simply insufficient for the reliance for access to justice in these circumstances being placed at the feet of charitable organisations and advocacy groups.
I will direct that Registrar B provide a copy of these reasons to the Attorney General’s Department and that Ms Medson and the ICL be permitted to provide a copy of these reasons to VLA. The Court understands that the mother’s lawyer will be lodging a review of the decision to refuse funding for a litigation guardian. Noting that the ICL, the father and the mother’s lawyer are all funded by VLA and that considerable resources have been spent with respect to the numerous Court appearances that have occurred in attempts to resolve this issue without success, which appears somewhat disproportionate to the comparatively modest sum that is initially being sought. There is also the significant public resources expended with respect to Court time that has been solely dedicated to this issue.
In saying this, I acknowledge that legal aid commission funding is stretched and difficult funding decisions need to be made. It is hoped that in future some sort of special funding could be made through the Attorney -General’s Department, legal aid commissions or some other body so that vulnerable people in need of support in order to access their rights are given that support.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 22 May 2023
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