Sally and Evers

[2009] FamCA 1383

FAMILY COURT OF AUSTRALIA

SALLY & EVERS [2009] FamCA 1383

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a Case Guardian

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 6.11

APPLICANT: Mr Sally

RESPONDENT: Ms Evers

FILE NUMBER: (N)PAC 2790 of 2008

DATE DELIVERED: 19 March 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 19 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mullane & Lindsay

Ms Carty

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Adams

Orders

1. That a Case Guardian be appointed to continue the case on behalf of the applicant mother, Ms Evers, in these proceedings.

2. The Court requests that the Attorney‑General nominate in writing a person to be the case guardian for the mother.

3. Pending further order, that them other may not take any further step in these proceedings other than through her Case Guardian.

4. Pending further order, the mother is restrained from sending letters containing allegations of misconduct by the father or members of his family to the father's neighbours, members of his family and community.  Nothing in this order prevents the mother from communicating any legitimate concerns she may have concerning the father to appropriate investigative agencies. 

IT IS NOTED that publication of this judgment under the pseudonym Sally & Evers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2790 of 2008

MR SALLY

Applicant

And

MS EVERS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father, filed 16 February 2009, in which he seeks orders that the Court appoints a case guardian to continue the case on behalf of the applicant in the substantive proceedings, the mother, and that, in circumstances where there is no known person who is able to be identified for the Court, or the Court is able to identify to fulfil the appointment as the case guardian, the Court request the Attorney‑General to nominate a person to fulfil that role. 

2. Shortly before the father filed his application, the Docket Registrar referred this case to me.  The Docket Registrar had formed the preliminary view that the mother appeared to be labouring under a frank mental illness, such that her capacity to understand and participate in the proceedings was compromised.  Consequently, the matter came before me on 16 February 2009. On that occasion, by prior arrangement, the mother appeared by telephone.  It was immediately apparent that she was unwell and I was concerned about her capacity to understand the Court processes irrespective of whether she was represented or, as is presently the case, appearing on her own behalf. 

3. The matter was adjourned to today with the mother then, and in subsequent correspondence to the Court, expressing enthusiasm for the opportunity to attend Court at Parramatta and meet the judge presiding over her case.  She has, in her correspondence addressed to me forwarded numerous drawings.   

4. In his affidavit filed on 5 August 2008, the father gave evidence that twice during the course of his relationship with the mother she was hospitalised in psychiatric hospitals.  In 2007, she diagnosed as having a bipolar disorder.  Following her discharge from hospital in 2007, she was subject to a six month Community Treatment Order.  The Community Treatment Order expired in February 2008.  Following the expiry of the Community Treatment Order, based initially on his observations of the mother’s behaviour she has probably stopped taking her mood‑stabilising medication. 

5. The mother, perhaps in response to concerns expressed by a Judicial Registrar, filed an affidavit from a psychologist she consulted in 2008.  The psychologist says the mother attended upon her on eight occasions and, although the mother showed signs of distress, it was the psychologist's opinion that there was no frank evidence of mental illness. 

6. I do not have recent psychiatric evidence concerning the mother’s mental health.  However, having regard to her prior history of mental illness, her presentation to me on 16 February 2009, the evidence contained in the father's affidavit, and the contents of the correspondence to the Court, including the drawings, I am comfortably persuaded that at this point of time the mother labours under a disability and lacks the capacity to participate in these proceedings. 

7. I am comfortably persuaded that I should make an order for the appointment of a Case Guardian. 

8. By r 6.11, where, in the opinion of the Court, a suitable person is not available for appointment as a Case Guardian of a person with a disability, the Court may request that the Attorney‑General (Cth) nominate a person to be a Case Guardian.  The mother has provided no suggestions for persons who may be suitable, at least in her opinion, for appointment as a Case Guardian.  The father and Independent Children's Lawyer similarly advised the Court that they know of no such person.  Thus, it is necessary to make an order under r 6.11. 

9. In the Court's experience, the process of nomination by the Attorney‑General takes a little time.  This necessarily follows from the relatively small number of people willing to accept such an appointment.  Nonetheless, although it will delay the continuation of the mother’s application, it is necessary this step be taken. 

10. Accordingly, orders as sought in the application in a case filed 16 February 2009 will be ordered.

11. I am also asked, on an ex parte basis, to make an order restraining the mother from corresponding with the father's neighbours and other non‑professional people in his community about these proceedings, and her concerns for the parties' son.  The mother has raised her concerns with the Court and, with respect to her, the material contained in her notice of child abuse and her correspondence to the Court should not be distributed in the community.  Not only is it harmful to the father’s reputation but for their son, it brings him into focus in the community in a way which is likely to be distressing for him.  Sensibly, the father does not seek to restrict the mother from raising concerns she has with the appropriate authorities; his point merely being to protect him and the child from damage to reputation and consequential distress for no good reason.  I am satisfied he has made out a proper basis for the order sought. 

12. For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 March 2009.

Associate: 

Date: