Remington & Remington - [2021] FedCFamC2F 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Remington & Remington [2021] FedCFamC2F 99

File number(s): ADC 2161 of 2021

Judgment of: JUDGE KARI

Date of judgment: 27 September 2021

Catchwords: FAMILY LAW - appointment of litigation guardian – mother self – represented – where mother suffers from mental disability impairing ability to understand the nature and consequence of proceedings - where guardian’s appointed in State jurisdiction are not appropriate persons in parenting proceedings - Department for Child Protection decline to intervene – request for appointment of litigation guardian by the Attorney-General

Legislation:
Guardianship and Administration Act 1993 (SA) ss 29, 35, 37, 57.

Family Law Act 1975 (Cth) ss 67N, 91B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 3.5 rr 3.12, 3.14, 3.15 (3), 3.16

Division: Division 2 Family Law

Number of paragraphs: 66

Date of last submission/s: 16 September 2021

Date of hearing: 16 September 2021

Place: Adelaide

Solicitor for the Applicant: Ms Burckhardt of Legal Services Commission of South Australia

Solicitor for the First Respondent: In Person

Solicitor for the Second Respondent: No Appearance

Solicitor for the Intervener: Mr Falcinella of Chief Executive for the Department for Child Protection
ORDERS

ADC 2161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS REMINGTON

Applicant

AND:
MS C REMINGTON

First Respondent

MR BAGLEY

Second Respondent

CHIEF EXECUTIVE FOR THE DEPARTMENT FOR CHILD PROTECTION

Intervener

ORDER MADE BY:

JUDGE KARI

DATE OF ORDER:

27 SEPTEMBER 2021

UPON NOTING:
A.That the Court requests the Commonwealth Attorney General’s Department to do all thing necessary to expedite the appointment of a litigation guardian.
THE COURT DECLARES THAT:
1.Pursuant to sub-rule 3.12 of the Federal Circuit and Family Court (Family Law) Rules 2021 (the Rules), the Respondent requires a litigation guardian to be appointed on her behalf in these proceedings.

AND THE COURT ORDERS THAT:
2.Pursuant to sub-rule 3.15(2) of the Rules, the Court forthwith appoints a litigation guardian for the Respondent in these proceedings.
3.Pursuant to sub-rule 3.16(3) of the Rules, it is requested that the Attorney-General appoint a person to be a manager of the affairs of the Respondent for the purposes of the appointment of a litigation guardian.
4.Pursuant to rule 15.13 of the Rules, 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 Respondent to have a copy of any court document filed in these proceedings together with a copy of any orders made.
5.That a copy of these reasons be provided to the Department for Child Protection.

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…

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 Remington & Remington

Details

AGLC: Remington & Remington [2021] FedCFamC2F 99
Case: [2021] FedCFamC2F 99
Decision Date: 27 September 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court was presented with a case involving Ms Remington, who was seeking an order for the appointment of a litigation guardian for her mother, Ms C Remington. The dispute arose in the context of parenting proceedings, where Ms C Remington was a party due to her mental disability, which impaired her ability to understand the nature and consequence of the proceedings. Ms C Remington, represented by herself, required a litigation guardian to assist her in navigating the legal complexities of the case. The court had to determine whether the existing guardians appointed in a state jurisdiction were suitable for the role in these specific proceedings and whether the Department for Child Protection should intervene. The Department had declined to intervene, and the court considered the Attorney-General's request for the appointment of a litigation guardian.

The court identified two primary legal issues. Firstly, whether the existing guardians appointed in a state jurisdiction were appropriate to act as litigation guardians in the family law proceedings before the Federal Circuit and Family Court. Secondly, whether the Department for Child Protection should intervene in the appointment of a litigation guardian, given its declination to do so. The court considered the provisions of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court (Family Law) Rules 2021 (the Rules), which permit the appointment of a litigation guardian where a party is unable to manage their own legal affairs due to mental incapacity. The court also examined relevant case law and statutory provisions to ascertain the appropriate course of action.

The court concluded that the existing guardians appointed in the state jurisdiction were not suitable to act as litigation guardians in the family law proceedings before the Federal Circuit and Family Court. This decision was based on the specific requirements of the litigation guardian role in the context of the proceedings, which differed from their role in the state jurisdiction. The court further determined that, given the Department for Child Protection's declination to intervene, it was appropriate to request the Attorney-General to expedite the appointment of a litigation guardian. The court's decision was influenced by the need to protect the interests of Ms C Remington and ensure that she received the necessary support to participate effectively in the proceedings. The court's order mandated the appointment of a litigation guardian and requested the Attorney-General to facilitate this process.

The court's final orders included a declaration that Ms C Remington required a litigation guardian to be appointed on her behalf in the proceedings. The court appointed a litigation guardian in accordance with the Rules and requested the Attorney-General to appoint a person to manage the affairs of Ms C Remington for the purposes of the litigation guardian appointment. Additionally, the court granted leave for the relevant officer of the Attorney-General's Department and any appointed manager of affairs to receive copies of court documents and orders. The court also directed that a copy of the reasons for judgment be provided to the Department for Child Protection. These orders aimed to ensure that Ms C Remington's interests were adequately represented and protected throughout the proceedings.

Orders

Orders of the court

ADC 2161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS REMINGTON

Applicant

AND:

MS C REMINGTON

First Respondent

MR BAGLEY

Second Respondent

CHIEF EXECUTIVE FOR THE DEPARTMENT FOR CHILD PROTECTION

Intervener

ORDER MADE BY:

JUDGE KARI

DATE OF ORDER:

27 SEPTEMBER 2021

UPON NOTING:

A. That the Court requests the Commonwealth Attorney General’s Department to do all thing necessary to expedite the appointment of a litigation guardian.

THE COURT DECLARES THAT:

1. Pursuant to sub-rule 3.12 of the Federal Circuit and Family Court (Family Law) Rules 2021 (the Rules), the Respondent requires a litigation guardian to be appointed on her behalf in these proceedings.

AND THE COURT ORDERS THAT:

2. Pursuant to sub-rule 3.15(2) of the Rules, the Court forthwith appoints a litigation guardian for the Respondent in these proceedings.

3. Pursuant to sub-rule 3.16(3) of the Rules, it is requested that the Attorney-General appoint a person to be a manager of the affairs of the Respondent for the purposes of the appointment of a litigation guardian.

4. Pursuant to rule 15.13 of the Rules, 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 Respondent to have a copy of any court document filed in these proceedings together with a copy of any orders made.

5. That a copy of these reasons be provided to the Department for Child Protection.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 2161 of 2021
Judgment of:	JUDGE KARI
Date of judgment:	27 September 2021
Catchwords:	FAMILY LAW - appointment of litigation guardian – mother self – represented – where mother suffers from mental disability impairing ability to understand the nature and consequence of proceedings - where guardian’s appointed in State jurisdiction are not appropriate persons in parenting proceedings - Department for Child Protection decline to intervene – request for appointment of litigation guardian by the Attorney-General
Legislation:	Guardianship and Administration Act 1993 (SA) ss 29, 35, 37, 57. Family Law Act 1975 (Cth) ss 67N, 91B Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 3.5 rr 3.12, 3.14, 3.15 (3), 3.16
Division:	Division 2 Family Law
Number of paragraphs:	66
Date of last submission/s:	16 September 2021
Date of hearing:	16 September 2021
Place:	Adelaide
Solicitor for the Applicant:	Ms Burckhardt of Legal Services Commission of South Australia
Solicitor for the First Respondent:	In Person
Solicitor for the Second Respondent:	No Appearance
Solicitor for the Intervener:	Mr Falcinella of Chief Executive for the Department for Child Protection

ADC 2161 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS REMINGTON Applicant
AND:	MS C REMINGTON First Respondent MR BAGLEY Second Respondent
CHIEF EXECUTIVE FOR THE DEPARTMENT FOR CHILD PROTECTION Intervener

ORDER MADE BY:	JUDGE KARI
DATE OF ORDER:	27 SEPTEMBER 2021