Remington & Remington
[2021] FedCFamC2F 99
•27 September 2021
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 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 Remington & Remington has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KARI
These proceedings relate to the infant child X who was born in 2020 and is 11 months of age.
The proceedings were commenced by the maternal grandmother on 6 May 2021.
The maternal grandmother is seeking orders that principally provide for X to live with her and for her to have sole parental responsibility.
The issue however at this early juncture is the question of the mother’s involvement in these proceedings, and in particular the question of the appointment of an appropriate litigation guardian on her behalf.
BACKGROUND
The brief background relating to this child is set out hereunder.
The applicant maternal grandmother was born in 1960 and she is 61 years of age.
The mother was born in 1994 and she is 27 years of age.
It is not clear who the father of the child is. There are two possible men who may be the child’s father, either Mr Bagley or Mr D. Both men were in a relationship with the mother at times when the mother is likely to have conceived the child.
Neither potential father is registered on the child’s birth certificate.
There is a presumption however by both the maternal grandmother and the Department for Child Protection that is it likely that Mr Bagley is the child’s father.
The child was born in 2020.
On 9 February 2021 the Department for Child Protection became involved with the child, and placed the child in the care of the maternal grandmother pursuant to a Safety Plan made with the agreement of the mother and the maternal grandmother.
The child has remained in the care of the maternal grandmother since 2021.
The maternal grandmother commenced these proceedings in 2021.
When the maternal grandmother commenced these proceedings she sought an interim order in the following terms:
“That this Honourable Court appoint a litigation Guardian for the Respondent Mother.”
The maternal grandmother did not identify in the orders that she sought, who should be appointed the mother’s litigation guardian. However in the affidavit filed in support of her Initiating Application the maternal grandmother identified the maternal aunt, Ms E as the person whom the maternal grandmother considered to be appropriate to fill the role of the mother’s litigation guardian.
The maternal aunt, Ms E has not ever filed an affidavit in these proceedings setting out her circumstances or her confirmation that she is willing to take on the role as the mother’s litigation guardian.
INFORMATION REGARDING THE PRESUMED FATHER
Mr Bagley has not been served with the proceedings and his whereabouts are presently unknown.
As a consequence of information the court has received from the co-located South Australian Police (“SAPOL”) officer in 2021, it is understood that:
(a)Mr Bagley has been charged with aggravated assault against a child or spouse, damage building or motor vehicle, for which at that stage he was on home detention bail. Those charges appear to relate to an incident of alleged family violence between Mr Bagley and the mother in 2020 at a time when the mother was pregnant with the child.
(b)As a consequence of that incident an Interim Intervention Order was made on in 2020 naming the mother as the protected person and Mr Bagley as the defendant.
(c)The police have been required to attend numerous instances of alleged physical violence as and between the mother and Mr Bagley between March 2020 and May 2020.
(d)Mr Bagley has multiple convictions:
(i)In 2021 for “Damage Building or Motor Vehicle, Damage Property, State False Personal Detail, Disorderly Behaviour, Give False Name, and Multiple Traffic Convictions”.
(ii)In 2019 there are multiple traffic convictions.
(iii)In 2016 for aggravated assault with offensive weapon, breach bail (x10), serious criminal trespass, dishonestly take property (x2).
(iv)In 2015 there are multiple traffic convictions together with a conviction for carrying an offensive weapon.
(v)In 2014 for Damage Building or Motor Vehicle and Unlawfully on Premises.
(vi)In 2013 for False Information to Second Hand Dealer and a traffic conviction.
(e)Mr Bagley is also the defendant in an active Victorian domestic violence order.
While it is not an issue for present purposes, it will be necessary in due course for attempts to be made to locate and serve Mr Bagley.
INFORMATION RELATING TO THE MOTHER
The mother suffers from significant cognitive impairment, and in that regard the maternal grandmother has deposed that:
(a)The mother was diagnosed with an intellectual disability when she was 11 years of age.
(b)The mother was diagnosed with Autism Spectrum Disorder when she was 14 years of age.
(c)The mother has been assessed as having the “level of functioning” equivalent to that of a 12 year old.
The mother is the subject of various orders made by the South Australian Civil and Administrative Tribunal (“SACAT”). In that regard:
(a)On 19 July 2013 and confirmed on both 8 August 2016 and 27 April 2020 a guardianship order was made pursuant to section 29 and 57 of the Guardianship and Administration Act 1993 (SA).
(b)When the guardianship order was confirmed on 27 April 2020, the maternal grandmother (the applicant in these proceedings), and the maternal aunt, Ms E (the proposed litigation guardian) were confirmed as “full guardians” of the mother.
(c)The guardianship order is due to be reviewed on or before 26 April 2023.
(d)On 2 November 2016 and confirmed on 27 April 2020 an administration order was made pursuant to section 35 and 57 of the Guardianship and Administration Act 1993 (SA).
(e)When the administration order was confirmed on 27 April 2020, the maternal grandmother and maternal aunt, Ms E were confirmed as “limited administrators” of the mother’s estate.
(f)The limited administration order was directed to the management of moneys payable in settlement of a personal injury claim for the mother that was pending in the Adelaide Magistrates Court.
(g)The administration order is due to be reviewed on or before 26 April 2023.
I have the benefit of a detailed report prepared in relation to the mother on 7 April 2021 (after the birth of the child). On that day the mother was assessed by a Clinical Social Worker. The report that was prepared as a consequence of that assessment significantly records:
(a)That the mother had been referred for assessment by the National Disability Insurance Scheme (“NDIS”) “as a result of significant concerns for her Mental Health with respect to symptoms of anger, anxiety and depression.”
(b)The mother reported that she did not receive any formal education beyond year 7 because her “behaviour and learning capacity were not up to school standards.”
(c)The mother reported that she had been employed by the Organisation F, but did not continue in that employment as she was told that she was “too unstable to continue there.”
(d)The mother described herself as “physically struggling to do much in the way of activities and social life”, and that she has “difficulty managing her Mental Health.”
(e)The mother also described herself as having “difficulty maintain personal and family relationships; she has difficulty managing emotions in relationships…experiences conflict and behavioural difficulties… [and] has been arrested before.”
(f)The mother was assessed as experiencing “serious impairment in social, occupational and school functioning as a result of difficulty in emotional regulation.”
(g)The mother was assessed as “currently experiencing extremely severe Anxiety and Depression and is under severe stress.”
(h)The mother was assessed to be suffering from an Obsessive Compulsive Disorder.
(i)The mother described “strong suicidal ideation”, and she was assessed as currently being at “chronic risk of self-harm.”
(j)The mother was assessed as showing signs of Post-Traumatic Stress.
(k)The mother was assessed as showing “significant traits of Borderline Personality Disorder” and “some symptoms of Paranoia and Impulsivity.”
ADDITIONAL INFORMATION PROVIDED TO THE COURT BY SAPOL
As a consequence of the release of information by the co-located SAPOL officer, the court is aware that there have been several reports to SAPOL as a consequence of the mother’s alleged behaviour directed to the maternal grandmother, and in particular:
(a)In 2020 it is recorded that the mother is alleged to have driven her vehicle towards the maternal grandmother in a threatening manner, and that she physically assaulted her sister by dragging her by the hair and kicking her.
(b)The mother was charged in relation to those allegations, however those charges were withdrawn.
(c)In 2021 it is recorded that SAPOL attended the maternal grandmother’s home due to a “domestic disturbance”. The mother is alleged on that occasion to have become angry and upset following a visit from the Department for Child Protection. The mother is recorded as having calmed herself down on that occasion, and no further police intervention was required.
(d)In 2021 it is recorded that SAPOL again attended the home of the maternal grandmother as the mother was reported to have “started acting crazy” and had damaged a curtain by ripping it. The maternal grandmother is recorded as not wanting charges to be laid against the mother, but requiring police assistance to remove the mother from the home.
In addition, each the maternal grandmother and the maternal aunt, Ms E have previously been named as protected persons with the mother named as the defendant to an Interim Intervention Order, each made on 5 April 2020 and each revoked on 3 March 2021.
THE LITIGATION
As I have already identified in these reasons, the proceedings were commenced by the maternal grandmother.
When she filed the proceedings, the maternal grandmother named the mother and Mr Bagley as the respondent’s to her Initiating Application.
Mr Bagley has never been served with the proceedings, and on 6 July 2021 the maternal grandmother amended her application to ask that the court make a Commonwealth Information Order pursuant to section 67N of the Family Law Act 1975 (Cth).
That specific application has yet to be determined by the court.
The matter first came before the court in a busy Duty List on 9 August 2021. On that day:
(a)The hearing was conducted virtually, with all appearances being by telephone on Microsoft Teams.
(b)The maternal grandmother was represented by her solicitor.
(c)Ms E appeared as the “legal guardian” of the mother.
(d)There was no appearance by Mr Bagley.
When the matter was dealt with, the court immediately raised concerns as to the conflict that existed for each the maternal grandmother and Ms E in circumstances where they were effectively wearing two separate and distinct hats which appeared to be in conflict with the mother’s interests:
(a)Both as the legal guardians and administrators of the mother;
(b)The maternal grandmother as the applicant in these proceedings seeking orders in her own right for the child to live with her and that she have sole parental responsibility; and
(c)Ms E as the proposed litigation guardian for the mother who was supportive of the maternal grandmother’s application, while equally wishing to act as the litigation guardian of the mother.
As a consequence of those concerns an order was made pursuant to section 91B of the Family Law Act 1975 (Cth) inviting the Department for Child Protection to intervene in the proceedings.
The hope in making that order was that the Department for Child Protection would acknowledge the invidious position that each the maternal grandmother and Ms E were in as a consequence of the dual roles they each were playing.
While the Department for Child Protection appears to have considered the court’s request and provided the court with a very detailed report dated 31 August 2021 as to the involvement of the Department with this family, unfortunately, the court was advised under cover of letter dated 31 August 2021, that Department for Child Protection declined the court’s request to intervene in the proceedings.
The matter next came before the court following the release of the report and letter from the Department for Child Protection on 1 September 2021. At that hearing the maternal grandmother was present and represented by her solicitor, the maternal aunt appeared on behalf of the respondent and a representative from the Department for Child Protection appeared. Again, all appearances were by telephone.
On that day, the court urged the Department for Child Protection to reconsider the position taken declining the court’s request to intervene. In urging the Department to reconsider their position, attention was drawn to the conflicting interests of each the maternal grandmother and Ms E as against those of the mother.
In addition, the court raised concerns as to the unnecessary burden and cost imposition on the maternal grandmother in bringing these proceedings, when the Department had formed the view that the risks factors presented by the mother and the presumed father were too great for the child to live in either of their care.
The court additionally indicated that in the event that the Department for Child Protection continued to refuse the court’s request that they intervene, then it would be likely that consideration would be given to inviting the Attorney General to appoint a litigation guardian for the mother.
The court accordingly made orders adjourning the matter to 16 September 2021 to enable the Department for Child Protection to review their position.
Unfortunately and despite the court’s urging, the Department for Child Protection maintained their position declining to intervene in these proceedings, and their further participation in the proceedings was excused at the hearing on 16 September 2021.
THE INVOLVEMENT OF THE DEPARTMENT FOR CHILD PROTECTION
As I have already indicated, as a consequence of the order made pursuant to section 91B of the Family Law Act 1975 (Cth), the Department for Child Protection provided the court with a detailed report dated 31 August 2021 of their involvement with this family.
That report makes for profoundly confronting and sad reading.
I understand from that report that:
(a)The child came to the attention of the Department and they commenced an investigation on 9 February 2021, when the child would have been a little over three months of age.
(b)The Department from the commencement of their investigation were concerned about the mother’s “limited capacity to fulfil the role of primary carer” of the child due to her intellectual disability and concerns over her substance abuse, alcohol use and poor mental health.
(c)The Department engaged with various members of the maternal family including the mother, the maternal grandmother, the maternal aunt Ms E, another maternal aunt and the maternal uncle.
(d)In addition the Department sought the assistance of NDIS.
(e)The Department assessed that Mr Bagley was “not safe” and that it was not appropriate to include him in the assessment process being undertaken by the Department. In coming to that conclusion the Department consulted the “Principal Aboriginal Consultant” (as Mr Bagley is recorded in the report as Aboriginal), and the view of the Department not to engage Mr Bagley was supported.
(f)The Department assessed that the maternal family were appropriately supportive and protective of the child, prioritising her safety at all times.
(g)The Department assessed that the maternal grandmother and Ms E “were the most appropriate decision makers” for the child “given their longstanding history of managing” the mother’s “behaviours and specific needs” [my emphasis added].
(h)The Department assessed that the maternal grandmother and Ms E were successfully managing the very difficult and complex situation that the mother and the child presented for the family.
On a plain reading of the report it is apparent that the maternal grandmother and the maternal aunt Ms E are working together at all times (as required by the SACAT order) to sensitively and effectively manage the mother’s very high needs, together with balancing that responsibility against their desire to act protectively of the child.
The court can only opine as to the significant burden that this heavy responsibility places on each the maternal grandmother and Ms E. Unambiguously the mother is fortunate to have the support of her family and in particular that of the maternal grandmother and Ms E.
Of significant concern to the court however is that the report from the Department sets out that despite the Department being aware of the mother being the subject of a Guardianship and Administration order, the significant concerns over the mother’s cognitive functioning and the mother’s intellectual disability, the Department for Child Protection sought to ascertain the mother’s wishes in relation to possible legal representation in the “Family Court”.
The mother is recorded as having declined that assistance, and that she wanted the maternal aunt, Ms E to assist her in that process, and that she was “100% comfortable with her mother and sister supporting her through this process”.
From the court’s perspective it is confounding that the Department considered it appropriate to engage the mother in that topic given the information that was to hand about limited her cognitive functioning and ability to manage her own affairs.
The Department for Child Protection ultimately recommended that:
(a)There be parentage testing of Mr Bagley “prior to assuming his parental rights a party to Family Court proceedings”; and
(b)That the child remain in the care of the maternal grandmother, with that arrangement to be formalised by “Family Court orders” securing the maternal grandmother as the child’s “primary carer”.
THE RELEVANT LEGAL FRAMEWORK
Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), sets out those matters relevant to the appointment of a litigation guardian.
3.12 Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a) does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2) Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
3.13 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 the person’s 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, for the benefit of the party, do anything permitted by these Rules to be done by the party.
Note 1: A person may apply for an interlocutory order to be appointed as a litigation guardian in relation to a prospective proceeding (see rule 5.02(2)(b)).
Note 2: Rule 6.01(3) applies the duty of disclosure to a litigation guardian appointed under this Part.
Note 3: Rule 10.04(3) requires a litigation guardian seeking a consent order to file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.
3.14 Who may be a litigation guardian
A person may be a litigation guardian in a proceeding if the person:
(a) is an adult; and
(b) has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and
(c) can fairly and competently conduct the proceeding for the person needing the litigation guardian.
3.15 Appointment of litigation guardian
(1)A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2)The court may, at the request of a party or on its own initiative, 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.
(3)A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4) The court may remove a litigation guardian at the request of the litigation guardian.
3.16 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 person’s authority extends.
(3)If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party.
(4)The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.
(5)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.
3.17 Notice of becoming litigation guardian
A person appointed as the litigation guardian of a party to a proceeding must, as soon as practicable after the appointment, give notice of the appointment to each other party and any independent children’s lawyer in the proceeding.
3.18 Costs and expenses of litigation guardian
The court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian):
(a) by a party; or
(b)from the income or assets of the person for whom the litigation guardian is appointed.
THE APPOINTMENT OF A LITIGATION GUARDIAN FOR THE MOTHER
The starting point for the determination of the appointment of a litigation guardian is a consideration of those matters set out in Rule 3.12.
On any view of the evidence that is before the court, there must be significant concerns about the mother and her ability to conduct these proceedings as a consequence of:
(a)The successive orders that have been made by SACAT confirming the mother’s need for a Guardianship and an Administration order, and particularly that an Administration order has been made specifically relating to the conduct of legal proceedings;
(b)The mother’s significant cognitive impairment; and
(c)The mother’s deeply concerning presentation when she was assessed on 7 April 2021.
While the court is not required to be satisfied of both limbs found in Rule 3.12, I am satisfied of both, and in particular I am satisfied:
(a)That the mother does not understand the nature of these proceedings nor the possible consequences of these proceedings; and
(b)That the mother is not capable of adequately conducting, or giving adequate instructions for the conduct of these proceedings.
The next issue that requires consideration is the identity of the proposed litigation guardian raised by Rule 3.14.
The wording of Rule 3.14 requires all aspects of the rule to be satisfied.
While there is not an affidavit from the maternal aunt Ms E, the court can be satisfied that as a consequence of the orders that have been made by SACAT appointing her (together with the maternal grandmother) both a guardian and an administrator of the mother’s affairs, that she is both an adult and that she can “fairly and competently conduct the proceedings” for the mother.
The issue however is that for the reasons that have already been discussed the maternal aunt appears to have an interest in the litigation that is adverse to that of the mother. In addition to the matters that I have already considered, I have come to this conclusion for two reasons, firstly because Ms E has advised the court at the two hearings that she has appeared, that she supports the application of the maternal grandmother. Secondly, as a consequence of the information contained in the report from the Department for Child Protection dated 31 August 2021 which makes it clear that Ms E and the maternal grandmother work together to manage the competing obligations that they have towards the mother and the care of the child.
It is for all of these reasons that I do not consider it appropriate that the maternal aunt, Ms E be appointed as the litigation guardian of the mother.
Moreover, as there has been no compliance with Rule 3.15(3) which requires Ms E to file an affidavit confirming her willingness to undertake that role, the court can not in any event appoint the maternal aunt, Ms E as the mother’s litigation guardian, even if inclined to do so.
In those circumstances consideration must then turn to Rule 3.16.
It is at the forefront of my mind that the mother is the subject of an order in the State of South Australia appointing the maternal grandmother and the maternal aunt, Ms E as the manager of her affairs.
In particular, the administration order that has been made relates specifically to the conduct of legal proceedings, being a personal injury claim in the Adelaide Magistrates Court on behalf of the mother.
While the orders made by SACAT would entitle either the maternal grandmother or the maternal aunt, Ms E to be appointed as the mother’s litigation guardian, for the reasons that I have already given, it is my firm view that either of those persons are inappropriate given their conflicting interests.
As a result, the court, and indeed the maternal grandmother and maternal aunt, Ms E are left in an invidious position.
The court accordingly sees no other option but to request that the Attorney General appoint a manger of the affairs of the mother, and that thereafter that person be appointed as the litigation guardian of the mother for the purposes of these proceedings.
I accordingly make those orders that appear at the commencement of these reasons.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kari. Associate:
Dated: 27 September 2021
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