Salmon and Marin (No 2)

FAMILY COURT OF AUSTRALIA

SALMON & MARIN (NO 2)

[2011] FamCA 664

FAMILY LAW – PRACTICE AND PROCEDURE – Case guardian appointed for the wife

Family Law Act 1975 (Cth) s 68LA(2), s 68LA(3)
Family Law Rules 2004 Rules 6.08, 6.09, 6.10, 8.02(4)

Guardianship and Administration Act 2000 (Qld) s 126, s 138A

N PJ, Managing Family Law Clients With Complex Needs, Family Law Residential 2007, Queensland Law Society website

APPLICANT:

Mr Salmon

RESPONDENT:

Ms Marin

FILE NUMBER:

BRF

3924

2003

DATE DELIVERED:

15 July 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

15 July 2011

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person, with Mr Ian Bruce Bell as McKenzie friend

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hawdon

Forest Glen Lawyers

Orders

IT IS ORDERED

Pursuant to Rule 6.09 of the Family Law Rules 2004 Mr N is appointed case guardian for Ms Marin in relation to these parenting and property proceedings.
Pursuant to Rule 6.14, Mr N’s costs of acting as case guardian be paid from the income and property of Ms Marin.
There be no order as to the costs of and incidental to the independent children’s lawyer’s application for appointment of the case guardian.
A transcript of today’s proceedings be prepared at the Court’s cost and provided to the parties.

AND IT IS FURTHER ORDERED

The husband by 4pm on Monday 8 August 2011:
a.file and serve on Mr N a balance sheet
b.make disclosure under the Rules.
The wife by her case guardian by 4pm on 29 August 2011:
a.file and serve a response to the husband’s balance sheet
b.make disclosure under the Rules.
The parties have discussions as to possible settled outcome of the parenting and property proceedings.
If consent orders are able to be reached the case guardian file and serve on the husband and the independent children’s lawyer an affidavit in accordance with Rule 6.13(1)(d) and seek a listing of the matter before the Honourable Justice O’Reilly by arrangement with the Associate.
Otherwise absent any prior listing for any reason, the matter be listed for mention at 9.30am on Monday 5 September 2011 before the Honourable Justice O’Reilly.
All other applications by Ms Marin be listed at 9.30am on Monday 5 September 2011 for mention.

IT IS NOTED that publication of this judgment under the pseudonym Salanger & Maxwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3924 of 2003

Mr Salmon

Applicant

And

Ms Marin

Respondent

REASONS FOR JUDGMENT

Application

The independent children’s lawyer by application in a case filed 9 June 2011 seeks the appointment of a case guardian for Ms Marin and that the costs of and incidental to the application for appointment and the case guardian’s conduct of the proceedings be paid from the income or property of Ms Marin.
The independent children’s lawyer has obtained the written consent to act of Peter John N, Solicitor.
Although the role of the independent children’s lawyer is confined to her acting in the parenting proceedings between the parties, her application, in effect, is for Mr N to be appointed as case guardian for Ms Marin in the proceedings as a whole, that is, for both its parenting and property components.
Ms Marin opposes that a case guardian be appointed.

Should a case guardian be appointed

Rule 6.08(1) Family Law Rules 2004 provides:
6.08Conducting a case by case guardian
(1)A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
(2)Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.
Relevantly, a “person with a disability” is defined in the Dictionary to the Rules as:
person with a disability, in relation to a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
Rule 6.10(1) provides:
6.10 Appointment, replacement or removal of case guardian
(1)A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.
The expression “a person” is of wide import. Plainly, the independent children’s lawyer is a person. Further, by reason of Rule 8.02(4), the independent children’s lawyer, whilst not a party, is treated as a party, Rule 8.02(4) providing:
8.02(4)If an independent children's lawyer is appointed, the parties must conduct the case as if the independent children's lawyer were a party.
Further, s 68LA(2) of the Family Law Act 1975 (Cth) requires an independent children’s lawyer to act in relation to the proceedings in what the independent children’s lawyer believes to be in the best interests of the child; and under s 68LA(3) must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the Court suggesting the adoption of that course of action.
Ms Marin submits that the application by the independent children’s lawyer is incompetent as beyond her role in the case.
By reference to the matters and provisions to which I have referred I am satisfied that the application is competently made by the independent children’s lawyer and that in particular, as put by the independent children’s lawyer, it is her view in regard to the history of the matter that the children’s best interests require a resolution of the parenting proceedings because the children’s lives, in a sense, are in a vacuum until the parenting proceedings can be resolved, they having been on foot now since 2003.
The matter has a long history, as I have indicated, and is one in which a case guardian for Ms Marin now should be appointed.
The matter was listed before me for trial for 4 days in January 2006, having previously been set down for trial before Carmody J for 4 days in September 2005, which dates Carmody J vacated on 12 September 2005. After 4 days of hearing in January 2006, in which Ms Demack of Counsel as she then was appeared for Ms Marin, the matter was stood over part heard for 5 days, 19-23 June 2006, as fixed dates.
On 15 May 2006, for reasons which I then gave, I made orders pursuant to Rule 6.11 of the Rules, which I then hoped would result in the appointment of a case guardian for Ms Marin through or via the Attorney-General.
Rule 6.11 provides:
6.11Attorney-General may nominate case guardian
(1)If 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 nominate, in writing, a person to be a case guardian.
(2)A person nominated by the Attorney-General to be a case guardian of a person with a disability is taken to be appointed as such if the person files:
(a)a consent to act in relation to the person with a disability;
(b)a copy of the written nomination of the person as a case guardian; and
(c)a Notice of Address for Service.
It is useful at this juncture to set out part of my reasons for judgment 15 May 2006, pars 1 – 6:
1In this matter there are part heard final proceedings which commenced on 23, 24, 25 and 27 January 2006 which are due to be resumed in one month on 19 June 2006 for five days.
2The mother has brought an application in the Duty List today for interim relief, including an order that the children's representative be removed and other matters concerning the interim parenting arrangements for the children.
3It emerges in the material that the mother, who in January was assisted by Legal Aid, and indeed represented by Ms Demack of Counsel instructed by J M Madden and Associates Solicitors, funded by Legal Aid, since January has sacked her Counsel and solicitors on various grounds which she describes in her material.
4Mr Ryan, the children's representative, has provided an affidavit exhibiting part of the transcript of proceedings late in the day on 27 January 2006 in which I stated my formed view with emphasis that representation of the mother in the matter is imperative and I said that in this case there is a diagnosis of the mother as having a major psychiatric illness, including delusionary disorder or psychosis in which the recommendation is made that more likely than not she will have to undergo involuntary Mental Health Act treatment. I said further the mother is not capable of representing herself and that it is imperative that her lawyers continue to assist in the trial. Those words were spoken by me as my view in an endeavour to ensure that Legal Aid be continued, but the mother has now thwarted the Legal Aid that was extended.
5Mr Ryan says in his affidavit that based upon his observations of the mother's behaviour and medical reports currently in existence he also is of the view that the mother would not properly be able to represent herself before the part heard trial without a litigation guardian being appointed on her behalf.
6The matter is compounded by the circumstance that already, before the matter came to me as the trial Judge, an application had been made by the child representative to Carmody J, probably in an earlier Duty List, for the appointment of a case guardian. That application was then dismissed on the basis that there was not a person who had consented to act, which under the Rules of Court, Rule 6.09(d), is a prerequisite to the appointment of a case guardian.
Further those reasons contain the following:
7I canvassed today with Ms - - -
RECORDED: NOT TRANSCRIBED
Yes. Well, I will note that halfway through the reasons for judgment at 4.28pm the mother has left the courtroom.
8I canvassed today with Ms Brasch of Counsel for the children's representative whether the children's representative could nominate a case guardian and obtain a consent so that of my own volition as the trial Judge I might appoint that person.
9However, as Ms Brash properly has pointed out, if the child representative is seen to nominate a case guardian that might be seen by the mother as a conflict of interest, in particular on the basis that it might be seen to prejudge the issue of the mother's mental state. Indeed, it seems to me that a conflict of interest does exist, so that it is not possible for me to ask the child representative to nominate a case guardian.
10Pursuant to the Rules of Court it seems therefore that I am left with two options. One is to request the Attorney-General to appoint a person to be the case guardian for the mother in the part heard trial, or alternatively, to stay the further child proceedings and the part heard trial pending the appointment of a case guardian. However, the latter option would lead nowhere in the circumstances which I have outlined and would be extremely unsatisfactory in that the mother, the father and the children would not have resolution of the matters at issue. In my view, it is imperative that I proceed with the part heard trial in June and make final orders concerning the children one way or the other.
11In those circumstances I will order that pursuant to Rule 6.11 the Attorney-General
RECORDED: NOT TRANSCRIBED
12The Commonwealth Attorney-General is requested to appoint in writing a person to be an authorised person to act as the mother's case guardian for the part heard child proceedings in BRF3924 of 2003. The case guardian, when appointed, is requested as soon as possible to file a consent to act in relation to the mother, a copy of the notice of appointment and a notice of address for service in compliance with Rule 6.11(2). I request that the appointment be made as soon as possible to ensure that the trial may proceed part heard for five days commencing 19 June 2006.
13I now turn to the mother's form 2 application filed today. I am not satisfied that the mother has the mental capacity to prosecute that application and indeed, looking at parts of it, much of it is not a competent application in any event. I am, however, concerned that the mother has seen fit to file three separate notices of child abuse since 27 January 2006, being notices filed on 22 March, 7 April and 26 April 2006. I have looked at each of those three notices. It is, of course, difficult to assess whether there may or may not be substance behind the allegations having regard to the mother's mental health state as reported by Dr M and others in material already read in the part heard trial and to which I have had close regard. However, it seems to me that the proximity of the part heard trial indicates that the mother’s interim application should be adjourned to be dealt with at the trial.
14The second order therefore that I will make is that the mother's form 2 application filed 7 April 2006 be adjourned to be dealt with during the trial to resume on 19 June 2006.
15I will publish my reasons and I will ask for the reasons to be provided on the urgent basis by no later than tomorrow morning, if possible, together with the order as urgently as possible, so they can be provided to the Attorney-General.
16I will reserve the costs of today. The children's representative's costs of today are reserved.
Importantly, it is to be noted that Carmody J dismissed the child representative’s then application for appointment of a case guardian for Ms Marin on the basis that there was not a person who had consented to act (reasons above, par 6). Today, Ms Marin challenges that and contends that the application was dismissed on the merits, as well as for that reason. However that was, in itself, a very long time ago and this is a fresh application, now nearly 6 years later, again, for the appointment of a case guardian for Ms Marin.
Unfortunately, my endeavour for appointment of a case guardian in 2006 via the Attorney-General failed: see transcript 5 June 2006, page 1, line 20 - page 2, line 35.
On 5 June 2006, the June trial dates were vacated. I ordered, until further order, a stay of the proceedings and that the mother attend for psychiatric assessment to be arranged by the independent children’s lawyer. This was on the basis of a suggestion by Ms Kennedy, Solicitor, for the father, that “it might be appropriate” if the father were to apply to the Guardianship and Administration Tribunal (Qld) for appointment of a guardian for Ms Marin.
By 20 September 2006, the father had filed an application with the Guardianship and Administration Tribunal (Qld) for appointment of a guardian and/or administrator for Ms Marin. On that date, 20 September 2006, I ordered that the father notify the Associate, the independent children’s lawyer and Ms Marin as soon as the Tribunal had given a decision in relation to the father’s application, set down for hearing before the Tribunal on 1 November 2006 and file and serve an affidavit annexing a copy of that decision.
On 2 April 2007, I ordered that the parenting proceedings be stayed until Ms Marin complied with pars 5(b) and (c) of the order made by the Tribunal 2 November 2006. It is appropriate at this juncture to set out that order in full:
DECLARATION
1.The Tribunal finds that [Mr Salmon] is not an interested party in these proceedings pursuant to section of [sic] 126 of the Guardianship and Administration Act 2000.
GUARDIANSHIP
2.That the application by [Mr Salmon] for the appointment of a guardian for [Ms Marin] is dismissed.
ADMINISTRATION
3.That the application by [Mr Salmon] for the appointment of an administrator for [Ms Marin] is dismissed.
ADJOURNMENT
4.That the hearing of the Tribunal Initiated applications for guardianship and administration are adjourned to a date to be fixed.
DIRECTIONS
5.The Tribunal directs that:
(a)[Ms Marin] provide the Tribunal within twenty-eight (28) days written advice as to whether [Ms Marin] currently has legal representation on the record in the proceedings before the Family Court of Australia.
(b)[Ms Marin] to undertake a psychiatric examination with a qualified psychiatrist and provide the Tribunal with a report as to the following:
(i)[Ms Marin’s] capacity to understand the nature and effect of decisions likely to arise in the course of the Family Court proceedings.
(ii)[Ms Marin’s] ability to give instructions to her legal representatives in the Family Court proceedings and if she is not legally represented, whether [Ms Marin] has the capacity to represent herself in these proceedings.
(c)[Ms Marin] to provide to the psychiatrist making the report referred to in these directions the following documents in complete form:
(i)Report of [Dr O], Psychiatrist, dated 21 December 2004.
(ii)Report of [Dr O], Psychiatrist, dated 05 September 2004.
(iii)Report of [Dr P], Psychiatrist, dated 31 January 2005.
(iv)Report of [Dr M], Psychiatrist, dated 20 January 2006.
(v)Fascimile of [Dr M] to [Mr R], dated 15 May 2006.
(vi)The Health Professional Report of [Dr S], General Practitioner, dated 01 September 2006.
(vii)The Health Professional Report of [Ms T], Probationary Psychologist, dated 04 September 2006.
(viii)Letter from [Ms T], Probationary Psychologist, dated 20 September 2006.
(ix)Report from [Ms U], Social Worker, dated 19 April 2005.
(x)The Health Professional Report of [Ms U], Social Worker, dated 11 July 2006.
(xi)A copy of this Order.
(d)[Ms Marin] provide a copy of this Order to the Family Court of Australia.
(e)[Ms Marin] is to provide a copy of the Psychiatrist’s Report referred to in Direction (b) of this Order to the Tribunal within seven (7) days of [Ms Marin’s] receipt of this Report.
Imperatively, it is to be noted that whilst the Tribunal in that order dismissed the father’s applications for appointment of a guardian and/or administrator for Ms Marin on the basis that he was “not an interested party” to the proceedings under the Guardianship and Administration Act 2000 (Qld), his two applications being numbered 3151 and 3152 of 2006, it is plain that the Tribunal itself initiated two further applications for guardianship and administration, those being numbered 5342 and 5365 of 2006 (see the matter numbers on the first page of the order). Further, by par 4 of the order, the Tribunal directed that the “Tribunal Initiated” applications for guardianship and administration be adjourned to a date to be fixed, and by pars 5(b) and (c) ordered the mother to undertake psychiatric examination and that she provide to the psychiatrist the documents listed.
On 2 April 2007, I ordered further that the independent children’s lawyer notify the Associate by 30 October 2007 as to progress of the proceedings in the Tribunal.
By 13 December 2007, little had been advanced: see the transcript of the proceedings on that date. I ordered the matter be listed for mention on 20 March 2008.
Before proceeding further, in argument today, the mother stated candidly from the Bar table that there was no evidence that she did not comply with pars 5(b) and (c) of the Tribunal’s order made on 2 November 2006. This is incorrect. I would refer to the transcripts of proceedings before me 13 December 2007, page 4, lines 15 to 45; 20 March 2008, page 1, lines 25 to 35; and 24 September 2008, page 1, lines 35 to 40, which part I will set out:
[MS MARIN]:   Yes, your Honour.
HER HONOUR:   - - - made on 2 November 2006. Have you yet complied with that order?
[MS MARIN]:   No, your Honour.

By 20 March 2008, again, little was advanced. I ordered the matter be further be listed for mention on 24 September 2008.
On 24 September 2008, I ordered:
IT IS ORDERED
1.The parenting and property proceedings between the parties are stayed until further order.
2.The parenting and property proceedings not be further listed until the mother provides to the Court a report by a specialist psychiatrist that she has the capacity to represent herself or has new legal representation.
3.A transcript of today’s proceedings be prepared at the Court’s cost and copies provided to the parties.
NOTATION:
Upon any further listing reference should be made to the orders made in the matter since 27 January 2006 and to the transcripts on file especially of 13 December 2007, 20 March 2008 and 24 September 2008.
As events transpired, prior to that date, and indeed on 7 April 2008, by order the Tribunal dismissed its own “Tribunal Initiated” applications for guardianship and administration pursuant to s 138A of the Guardianship and Administration Act2000 (Qld):
GUARDIANSHIP
1.That the Tribunal initiated application for guardianship is dismissed pursuant to Section 138A of the Guardianship and Administration Act 2000.
ADMINISTRATION
2.That the Tribunal initiated application for administration is dismissed pursuant to Section 138A of the Guardianship and Administration Act 2000.
The Tribunal’s reference to s 138A is curious. Section 138A of the Guardianship and Administration Act 2000 (Qld) provides:
138A Repeated applications for orders
(1)This section applies if the Tribunal dismisses an application because it considers the application as frivolous, vexatious, misconceived or lacking in substance.
(2)The QCAT Act, section 49(2) does not apply to another application of the same kind in relation to the same matter.
Given that the Tribunal on 7 April 2008 was dismissing its own “Tribunal Initiated” applications under that provision, it cannot be anticipated that the Tribunal was adjudging that its own applications were frivolous, vexatious, misconceived or lacking in substance. I would thus infer that the Tribunal’s reference in the order 7 April 2008 to s 138A, in some veiled way, or otherwise in a way I frankly do not understand, was frustration of the proceedings by the Tribunal’s inability to progress them because of the mother having not complied with pars 5(b) and (c) of the order made on 2 November 2006.
In any event, it is plain that the submission of the mother that the Tribunal dismissed the father’s applications to the Tribunal under s 138A, on the basis that they were frivolous or vexatious, is wrong.
The Tribunal’s orders 2 November 2006 and 7 April 2008 are attached to the record of proceedings 15 July 2011.
By 15 June 2010, after checking on the progress of the matter periodically since 24 September 2008, I had become increasingly concerned that the matter had languished and needed freshly to be brought to trial and finalised. Accordingly, I relisted the matter and on that date made the following orders:
IT IS ORDERED
Procedural order
1Despite paragraph 2 of the orders made 24 September 2008 the parenting and property proceedings be progressed to finalisation.
Parenting reports
2The Manager Child Dispute Services appoint a family consultant in this matter.
3The independent children’s lawyer arrange with the family consultant for interviews by the family consultant with the parties and the children for the purposes of a family report including all of the s60CC factors which the family consultant may identify as relevant.
4The independent children’s lawyer arrange for the parties and the children to be interviewed for the purpose of an Aboriginal indigenous cultural report and if possible such be by [Dr V].
5The independent children’s lawyer arrange for the parties and the children to be interviewed for the purpose of an Indian indigenous cultural report.
6The independent children’s lawyer arrange for the psychiatric assessment of the mother and the father.
7The parties must attend for interview with the family consultant and such other persons as they may be advised for the purpose of such interviews and reports, and if so advised ensure that the children attend.
Parenting and property trial directions
8The parties file and serve:
a.one trial affidavit each as to the issues in both the parenting and property proceedings;
b.one affidavit of each of their witnesses;
c.a current financial statement
by 4.00pm on Wednesday 15 December 2010.
9In relation to single expert valuation:
a.the mother nominate by email to the Associate: … on notice to the father’s solicitor… the name of a registered valuer or firm of registered valuers to be appointed as the single expert valuer in the proceedings;
b.the person or firm so nominated be appointed as the single expert valuer to prepare a valuation report in relation to [W Street, X Town], Queensland, …and provide a copy to each of the parties;
c.the husband be responsible for payment of the single expert valuer’s fee in the first instance and such payment be considered at the trial as to whether it be apportioned or the subject of s75(2) or other adjustment.
10The dates (10 days) Monday 7 February 2011- Friday 18 February 2011 before the Honourable Justice O’Reilly be tentatively allocated for the trial of both the parenting and property proceedings to be confirmed or vacated no later than Wednesday 20 October 2010.
11The matter be listed for mention at 9.30am on Wednesday 20 October 2010 before the Honourable Justice O’Reilly.
12The matter be listed for a compliance check at 9.30am on Friday 17 December 2010 before the Honourable Justice O’Reilly.
NOTATION TO THE REGISTRAR AND CASE COORDINATOR:
1Save for any matters relating to subpoenae no procedural hearings in this matter are required or should be convened other than by prior arrangement with the Honourable Justice O’Reilly as the judicial case manager.
By 18 November 2010, again little had been advanced, save that Dr V had provided an indigenous cultural report. On that date I ordered:
IT IS ORDERED
1The father must attend upon [Dr G], psychiatrist, at 11.30am on Monday 22 November 2010 at … for psychiatric assessment and a report.
2The mother must attend upon [Dr G], psychiatrist, at 11.30am on Monday 29 November 2010 … for psychiatric assessment and a report.
3The parties must comply with paragraph 8 of the orders made by the Honourable Justice O'Reilly on 15 June 2010.
4If either the mother or the father should fail to attend the appointment for each of them referred to in paragraphs 1 and 2, or fail to comply with paragraph 8 of the orders made by the Honourable Justice O’Reilly on 15 June 2010, the Court may without further notice proceed pursuant to Rule 11.02(2) of the Family Law Rules 2004 to dismiss all or part of that party’s case both as to children and property or proceed on the basis that the case against that party both as to children and property is undefended.
5The matter be listed before the Honourable Justice O'Reilly at 10.00am on Monday 14 March 2011 for trial for 10 days as the first reserve case on that day.
The matter was listed again on 7 December 2010. By that stage, Ms Marin had filed an application in a case on 13 October 2010 seeking variation to existing parenting orders. On that date I ordered, supported by reasons for judgment 7 December 2010:
IT IS ORDERED
1The mother’s application in a case filed 13 October 2010 be listed for further hearing at 10.00am on Monday 14 March 2011.
2The time referred to in paragraph 8 of the orders made on 15 June 2010 for the filing of material as set out in that paragraph is enlarged until 4.00pm on Friday 14 January 2011.
3In relation to paragraph 9 of the orders made on 15 June 2010, if the mother should not provide to the father by 4.00pm on Friday 14 December 2010 the name of a registered valuer or firm of registered valuers to be appointed as the single expert valuer in the proceedings, the father may at the trial rely on valuation evidence arranged by him and the mother may at the trial rely on valuation evidence arranged by her.
4The mother must attend upon [Dr G], psychiatrist, at 1.00pm on Monday 17 January 2011 … for psychiatric assessment and a report.
5If the mother should fail to attend that appointment or if the mother or the father should fail to comply with paragraph 8 of the orders made by the Honourable Justice O’Reilly on 15 June 2010 (as enlarged today to 14 January 2011), the Court may without further notice proceed pursuant to Rule 11.02(2) of the Family Law Rules 2004 to dismiss all or part of that party’s case both as to children and property or proceed on the basis that the case against that party both as to children and property is undefended.
6The matter remain listed before the Honourable Justice O'Reilly at 10.00am on Monday 14 March 2011 for trial for 10 days now confirmed as fixed dates.
NOTATION
1Save for any matters relating to subpoenae no procedural hearings in this matter are required or should be convened other than by prior arrangement with the Honourable Justice O’Reilly as the judicial case manager.
2The father’s solicitors will file a notice of ceasing to act as the father has been declined further funding from Legal Aid (Queensland).
The reasons for judgment 7 December 2010 provided:
1. The mother, by application in a case filed 13 October 2010, seeks several orders including that until further order the children [B] born … 1995, now 15½ years, [C] born … 1998, now 12½ years and [D] born … 2000, nearly 10 years, reside with her.
2. The children have resided with the father for a very long time now, about five to six years. I would refer to the lengthy history of my involvement in this matter for several years, going back to mid - late 2005.
3. On 18 November 2010, I ordered in Chambers:
1.The father must attend upon [Dr G], psychiatrist, at 11.30am on Monday 22 November 2010 … for psychiatric assessment and a report.
2.The mother must attend upon [Dr G], psychiatrist, at 11.30am on Monday 29 November 2010 … for psychiatric assessment and a report.
4. The father attended upon [Dr G] as ordered. The mother did not attend upon [Dr G] as ordered. In filed material, and by an explanation at the Bar table, the mother said that she was not able to attend upon [Dr G] on the date ordered because her own mother was ill and she needed to attend upon her. I accept fully the mother’s explanation for not attending that appointment on 29 November 2010.
5. The independent children’s lawyer, Ms Hawdon, has notified that she has made an appointment for the mother with [Dr G] at 1.00pm on Monday 10 January 2011.
6. The mother categorically has stated from the Bar table that she will not attend that appointment, being firmly of the view that she has no need to.
7. The mother has said she will not attend on the basis that in her view she does not require assessment.
8. The matter is such that I have observed her now over a very long period of time, and would refer to the several transcripts and orders going back at least to 15 May 2006 when I endeavoured to have a litigation guardian appointed for the mother but failed.
9. I am not prepared to hear and determine the mother’s application for an interim residence order until the mother attends for psychiatric assessment and a report, pursuant to a Court order for psychiatric assessment and report, or at least until she provides independently a report by a psychiatrist relating to recent psychiatric assessment.
10. I will order, despite the mother telling me that she will not attend, that she attend upon [Dr G] at 1.00pm on Monday 10 January 2011 for psychiatric assessment and a report. The mother said to me during argument that on that date she will be available to attend, but will not attend.
11. If the mother does not attend, I will proceed pursuant to the Family Law Rules 2004, rule 11.02(2) to dismiss her parenting proceedings on 14 March 2010, without more, unless in lieu of compliance with the Court order the mother presents a report by a psychiatrist relating to recent psychiatric assessment
12. The Court, of course, has a discretion not to hear applications by people in default of its orders in circumstances of demonstrated contempt. However, in this particular case, I would prefer to proceed pursuant to rule 11.02(2).
13. In the meantime, I will list the mother’s application in a case filed on 13 October 2010 for further hearing at 10.00am on Monday 14 March 2010 on the basis that today, realistically, it is not able to be heard, and realistically cannot be heard until the mother presents for psychiatric assessment.
By 4 February 2011, the father had applied for adjournment of the trial listed to commence on 14 March 2011 (for 10 days as fixed dates). On that date, I ordered (amended order):
IT IS ORDERED
1.The father’s application filed on 4 February 2011 for adjournment of the trial be listed for hearing at 10 am on Monday 14 February 2011.
2.All other applications filed since 7 December 2010 be listed for hearing at 2.15 pm on Monday 14 February 2011.
3.All affidavits by the parties and the independent children’s lawyer that they may wish to rely on be filed by 4 pm on Thursday 10 February 2011.
On 16 February 2011, on the father’s application, I ordered, supported by reasons for judgement of that date:
IT IS ORDERED
1The children [B] born … 1995, [C] born … 1998 and [D] born … 2000 are permitted to leave the Commonwealth of Australia without the written consent or any consent of the mother.
2The requirement of the mother’s signature on any application for the issue of passports for the children, or the issue of visas for the children to visit [Country E], is dispensed with.
3Until further order the father has sole parental responsibility for the children including in relation to the issue of passports and visas for them and to give effect to these orders.
4The father may travel with the children to [Country E] on the following conditions:
a.the father’s and the children’s departure be not earlier than 5 March 2011
b.the father must return the children to Australia by no later than 15 May 2011
c.the father must as soon as possible after obtaining the children’s passports and visas provide them to the independent children’s lawyer unless earlier he has provided to her, which in any event he must do:
i.a full itinerary of the children’s travel in [Country E] including in so far as may be possible all accommodation addresses and including 2 telephone numbers
ii.an airline or travel agent issued schedule of booked, prepaid and receipted return air tickets for himself and the children showing booked and prepaid return air tickets on a date to ensure the children are back in Australia by no later than 15 May 2011
iii.prepaid telephone card or cards to the value of $20.00 for the independent children’s lawyer to provide to the mother to enable the mother to telephone the children during their time in [Country E] at the telephone numbers in subparagraph i
5If pursuant to subparagraph 4c the father provides the children’s passports and visas to the independent children’s lawyer she must release the children’s passports and visas to the father upon his provision to her of the documents and things referred to in paragraph 4c.
6The independent children’s lawyer after the father’s and the children’s departure must provide to the mother the prepaid telephone card or cards and the 2 telephone numbers provided to her by the father.
7The children’s names be removed immediately from the Airport Watch List.
8The father must give the children’s passports to the independent children’s lawyer for safe keeping no later than 20 May 2011.
9The dates for trial commencing on 14 March 2011 are vacated.
10Any application by the independent children’s lawyer for the appointment of a case guardian for the mother, in relation to both the parenting and the property proceedings be listed before the Honourable Justice O’Reilly at 10.00am on 15 June 2011.
11The matter be listed before the Honourable Justice O’Reilly at 10.00am on 15 June 2011 for further trial directions and the allocation of further trial dates.
Fact sheet
12Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
NOTATION:
The listing at 10.00am on 15 June 2011 is to be a half day listing.

In relation to par 10 of those orders, I would refer to the reasons for judgment 15 May 2006, pars 8-9. However, I am now of the view there is no conflict of interest in an independent children’s lawyer applying for appointment of a case guardian for a party or in nominating such because it is the Court that decides the matter not the case guardian.
The independent children’s lawyer, pursuant to order 10 of those orders, filed an application for appointment of a case guardian for Ms Marin with supporting material only on 9 June 2011, nearly 4 months after the orders made on 16 February 2011. The material was served on Ms Marin partly on 8 June 2011 and partly on 9 June 2011.
On 15 June 2011, the morning of the listed hearing, Ms Marin said she had been served with a full set of the material only shortly before court on that day. Thus, I readily allowed Ms Marin an adjournment of the independent children’s lawyer’s application by necessity to allow her procedural fairness and on that date ordered:
IT IS ORDERED
1The application in a case filed by the independent children’s lawyer on 9 June 2011 for appointment of a case guardian for the respondent be listed at 10.00am on Friday 15 July 2011.
2Any material to be relied on by the respondent be filed and served by 4.00pm on Friday 8 July 2011.
3A transcript of today’s proceedings be prepared and sent to the parties at the Court’s cost.
Against that background, the independent children’s lawyer’s application for appointment of a case guardian for Ms Marin, finally, has come on for hearing today.
In addition to the various orders to which I have referred, and the earlier reasons for judgment to which I have referred, further background is provided by reference to the following transcripts: 24 January 2006, 27 January 2006, 5 June 2006, 13 December 2007, 24 September 2008, 4 February 2011, 14 February 2011, 16 February 2011, 15 June 2011 and today 15 July 2011.
The question now for determination is whether Ms Marin is a “person under a disability” within the meaning of the Dictionary definition I have set out, for the purpose of Rule 6.08(1).
Ms Marin refused to attend psychiatric examination as ordered by the Tribunal, and refused to attend psychiatric examination as ordered by me on 7 December 2010.
In relation to Ms Marin’s non attendance at an appointment for psychiatric assessment pursuant to the order made on 18 November 2010, on 7 December 2010 I accepted that she had good reason not to do so because of illness relating to her mother. Indeed, such is recorded in the reasons for judgment 7 December 2010: see pars 3 – 4.

In those reasons, at par 5, I noted that the independent children’s lawyer had made a further appointment with Dr G for 10 January 2011 and, in par 6, that the mother categorically had stated from the Bar table that she would not attend that appointment, being firmly of the view that she had no need to, and, in par 7, that the mother had said she would not attend on the basis that in her view she does not require assessment.
As events transpired, by the time the order 7 December 2010 was made, the appointment on 10 January 2011 had been allocated to another patient for want of confirmation. It was in those circumstances that, when the order 7 December 2010 issued, I inserted the date 17 January 2011 as a newly made appointment and arranged for the Registry to send the order 7 December 2010 to the mother with a covering letter 8 December 2010 enclosing a copy of the letter from the independent children’s lawyer advising that the new date for the mother to attend on Dr G was 17 January 2011. That letter, marked file copy, is located on the correspondence section of the Court file.
The transcript 4 February 2011 at page 2, lines 30 – 35, records Ms Marin informing me that she did not attend the appointment with Dr G on 17 January 2011, and in response to my asking the reason why she did not attend, a series of answers that were non-responsive. In particular, at transcript page 3, lines 10 – 15, I specifically asked the mother whether the floods in Queensland had prevented her attendance at the appointment, but there was no reason of that nature forthcoming. Rather as is apparent from the transcript, Ms Marin, did not have the intention to attend or had the intention not to attend.
The transcript of that date shows further the independent children’s lawyer’s information to the Court that if I were to arrange a third appointment with Dr G it was doubtful if Legal Aid would provide further funding for that purpose: see at page 4, lines 25 – 30.
Thus, I need to look at the history of the psychiatric evidence in the matter concerning Ms Marin.
Ms Marin has been diagnosed as having a psychiatric disorder. It has been recommended that she undergo “long-term psychiatric treatment by a psychiatrist”, “the most important component” of which would be “long-term antipsychotic medication”. See the report of Dr M, psychiatrist, p 55, annexed to his affidavit filed 23 January 2006.
Dr M interviewed Ms Marin and caused to be carried out psychological testing in January 2006. His report, as I have mentioned, is dated 20 January 2006 annexed to his affidavit filed 23 January 2006. As is evident from his report Dr M, at the request of the then children’s representative, consulted with Dr O, psychiatrist, whose two earlier reports I will refer to below, and with a Dr Y, psychiatrist, who had previously treated the mother. In addition, Dr M referred to Dr O’s earlier reports, documents including clinical notes subpoenaed from a Dr P, consultant psychiatrist, three family reports prepared by Ms U, social worker, as well as numerous other documents set out at pages 2 and 3 of his report.
Dr M’s report is 55 pages in length and annexes psychological testing results and other material, some of which was provided to him by the mother. Although I have had regard to the whole report it seems to me that certain parts bear setting out.
pages 35-36 (Mental State Examination):
I find I have little hesitation in regarding her beliefs about the “home invasion” as bizarre and delusional. It is highly likely that in order to attain these entrenched beliefs she experienced delusional perception as well as selecting a particular paranoid explanation from a range of possible alternatives. It beggars belief that her husband would have had the ability or the motivation to perpetrate these remarkable actions and it is even more incredible that they could have been perpetrated by a group of people at his instigation. In the delusional process there is often a component of retrospective delusion or delusional memory. While she is not actively psychotic now in the sense that she is not experiencing any ongoing hallucinations or delusions, she holds fixedly to her memory of these events and their delusional interpretation.
I disagree with [Dr O’s] estimate of her IQ as being in the low average range. I think it is above average.
She had quite marked obsessional traits.
Some of the phenomena noted may be due to difficulties with the auditory processing but I think most are defensive or personality-based in nature.
pages 52-53 (Plain Language Comment on Psychometric Testing):
Both the personality profiles i.e., the scores for the major dimensions measured, were surprisingly normal as will be seen from the descriptions in the above. The characteristics suggested by these scores were quite inconsistent with what is known of her history and behaviour both in the long term and over the last few years. I have commented already on her observed tendency to underscore relative to what is clearly true in regard to her reactions and situation. I draw the reader’s attention to the clearly false characteristics described under Somatic Complaints, Anxiety, Anxiety Related Disorders, Depression, Paranoia, Borderline Features, Antisocial Features, Stress, Dominance. The only abnormal score is the very significant positive impression (PIM 57T), which suggests she responded in a manner to portray herself relatively free of the common shortcomings most people will admit to. If she was able to do this, how much more so would she be able to portray herself free of more severe psychopathology.
The MMPI-II however, provides an explanation for the marked inconsistency between the clinical picture and the profile. This explanation is given under the heading “normal K+ profiles”. It is to be noted that she conforms to the five characteristics listed at the beginning of this discussion. It is to be noted that this particular profile is associated with serious psychopathology. Spike 3, though only low, is of some relevance, but most apposite are the remarks about characteristics associated with Code Type 3-4/4-3. Most notably people conforming to this code type “report little psychological or emotional distress and describes (sic) themselves as less depressed and anxious than do most psychiatric patients. Behavioural problems are more likely to occur in this code type than in any other code type that includes Scale 3.
There is no suggestion being made that [Ms Marin] is consciously or deliberating (sic) dissimulating. She is answering according to how she sees herself and how she rationalises her behaviour and her relationship with reality. She is answering the tests according to a fantasised (and partially deluded) view of herself and her environment.
page 54 (Diagnosis and Discussion):
The diagnosis is as follows:
Axis Ia) Delusional Disorder (Paranoia) of Persecutory Type. b) One or more previous Major Depressive Episodes and/or Adjustment Disorders. c) Reading Disorder (Mild),
Axis IIPersonality Disorder with prominent paranoid traits and some schizotypal ones.
Axis IIIAuditory Processing Deficit.
I don’t think there is any doubt about her beliefs in regard to the home interference being delusional. She still holds them without reservation. She is not actively psychotic in the sense that there are no continuing psychotic phenomena while she is living in [Z Town]. The delusions developed and propagated while she was living in the same city as her husband and having more or less contact with him. It is noteworthy that on a recent return to the marital home, some kind of ceiling collapse occurred and she believed this was due to further invasion through the roof. She is terrified of her husband and when he has practical geographical access to her she becomes more actively psychotic. The purpose of his machinations is by no means clear. Certainly since [Dr O’s] report and her treatment in [AA Hospital], he has been, she believes, actively discrediting and slandering her. It is very concerning indeed that the children to some degree have been involved in her delusional thinking and that one of them was seen as acting as an agent for the father.
page 5 (Recommendations):
[Ms Marin] should have active and long-term psychiatric treatment by a Psychiatrist. The most important component of that treatment would be the administration of long-term antipsychotic medication. It is true that Delusional Disorder often responds poorly to such treatment but by no means always so. The problem is the difficulty or impossibility of establishing a positive treatment relationship with someone who is continually suspicious, actively deluded and lacking in insight. Treatment can therefore often only be delivered under the Mental Health Act. Some psychological approaches can be theoretically helpful e.g., Cognitive Behavioural Therapy, but once again the problem would be in getting her to accept any approach which questions the validity of her beliefs and the justification of her behaviour. The reaction [Dr Y] describes is typical. Psychological treatment attempting to address other problems she may have is unlikely to be of any benefit unless the psychosis is treated. The hope with the treatment is that while it may need to be initiated involuntarily, if it is successful and insight is gained, the patient may become a willing participant. Unfortunately in my experience this rarely happens. The treatment of the disorder is not uncommonly compounded by comorbidity particularly Major Depression to which she is prone. (emphasis added)
Dr O, consultant psychiatrist, provided two reports in relation to the mother dated 5 September 2004 and 21 December 2004. These are annexures KJH4 and 5 to the independent children’s lawyer’s affidavit filed on 9 June 2011. I today have accepted an undertaking from the independent children’s lawyer to obtain from Dr O and file an affidavit by him proving those two reports in the usual terms, that is, that they are reports prepared by him on the basis of observations by him and information given to him, and that the opinions in the reports are his own opinions genuinely held. [editor’s note: Dr O’s affidavit pursuant to the undertaking was filed on 25 July 2011]
first report, page 6 (Mental State Examination):
[Ms Marin] presented as a large intense woman. She made intense eye contact when discussing the alleged abuse, but there was poor eye contact at other times and it was difficult to establish rapport with her. Her speech was spontaneous and was loud and forceful when discussing the abuse or her beliefs about her ex-husband. Her mood was dysphoric and her affect restricted and guarded. She presented with a long history of beliefs that other people were harming her. It was difficult to tell whether these were of delusional intensity. She denied any perceptual abnormalities. Her insight and judgment was limited and although her cognitive level was not formally tested it was average at best.
pages 11-12 (Opinion):
[Ms Marin] presented a history in which she was continually the victim. She outlined a history of severe abuse, including being raped by her seven year old brother when she was three and then again by her live-in ex-boyfriend when she was fifteen. On both occasions her family blamed and ostracised her. One of her next boyfriends threatened to kill her with grenades and machetes and then she went onto Workers Compensation because everybody at her work was jealous of her. She became quite fearful and suspicious and allegedly responded to hallucinations after the birth of her third child. At this time she became convinced that [Mr Salmon] was a danger to her and the children and has been acting on this belief ever since. She has been constantly moving the children between carrying accommodations, including a one year stint in [BB Town].
At the time of her interview, [Ms Marin] was guarded and strongly believed that [Mr Salmon] was a threat to her and the children, but it was difficult to tell whether this was delusional and hence psychotic in nature. It would appear from the collateral evidence that she has gradually become more paranoid and has based her beliefs of [Mr Salmon’s] threat on such factors as the glovebox falling out of the car or burglars leaving their socks in the laundry. Given the [CC Town’s] Adult Mental Health Service’s actions, I would assume that they too, were concerned for her mental health and well-being. It would appear that [Ms Marin] is suffering from a psychotic disorder, which could either be a Delusional Disorder or Paranoid Schizophrenia. (emphasis added)
second report, pages 8-9 (Opinion):
[Ms Marin] presents as more settled than at her last interview. However she continues to have significant paranoid beliefs which I believe are of delusional intensity. They are certainly fixed, unshakable, and cause her great distress. It is difficult to be absolutely certain that her beliefs are false, however it seems highly unlikely that her locksmith, mechanic, neighbours, solicitor and children are all involved in a conspiracy with [Mr Salmon] to allow him to break into her house on numerous occasions to move certain objects and leave the bible open. [Ms Marin] has acted on her fears, making multiple complaints to the Police and moving the children around in a nomadic fashion for the last two years. If the Court finds that it is improbable that these events have occurred in the fashion that [Ms Marin] has described then it is reasonable to conclude that she has a psychiatric illness. She has little insight into her illness and her judgment is consequently affected by this. …
I believe that [Ms Marin] has a Delusional Disorder of the persecutory subtype. She has been acting under the influence of the delusional belief that her husband has been involving people (including her children) in a conspiracy against her. She has acted on these beliefs by moving constantly to avoid perceived harm. … She has avoided any psychiatric treatment.
[Ms Marin] may benefit from ongoing treatment is she consents to this course of action. Delusional disorder is notoriously difficult to treat however she may improve with appropriate medication and therapy. …
[Ms Marin] should receive psychiatric treatment for her Delusional Disorder. It is likely that this will occur as an outpatient … . (emphasis added)
The circumstance that Ms Marin has not presented for psychiatric examination recently, as ordered, has effect that I need to rely on the early psychiatric reports of Dr M and Dr O extracted above. I am conscious, indeed, that in order to satisfy the Dictionary definition of a “person with a disability” I need to find first that Ms Marin, as at the date of today’s hearing, has a “mental disability” and secondly, that such has effect that in relation to the case, because of that mental disability she either does not understand the nature or possible consequences of the case or is not capable of adequately conducting or giving adequate instruction for the conduct of the case (see Rule 6.08) before it would be appropriate for me to appoint a case guardian for her.
Certainly, as at the date of Dr M’s and Dr O’s reports, there is no doubt that Ms Marin suffered a “mental disability”, being the diagnoses described.
There is no recent psychiatric assessment of Ms Marin. That has been impossible by her refusal to attend for such. It is the case thus that there is no expert evidence as to whether currently Ms Marin suffers a mental disability, nor, if she does, its effect in terms of the Dictionary definition.
In these circumstances, I am entitled to take into account Dr M’s and Dr O’s earlier diagnostic opinions, and Dr M’s further opinion that Ms Marin’s psychiatric condition is long-term, and conclude that because she has not received the long-term treatment her condition has not abated.
As to whether her diagnosed mental disability has effect that she does not understand the nature or possible consequence of the case or that she is not capable of adequately conducting or giving adequate instruction for the conduct of case, as the trial judge I have been able to form my own conclusion that whilst Ms Marin does understand the nature and possible consequences of the case, that is, both the parenting and property proceedings, in the sense that she understands that the parenting proceedings concern the best interests of the children and the property proceedings concern financial division of assets with finality, I have formed the view based on Ms Marin’s courtroom conduct that Ms Marin is not capable of adequately conducting or giving adequate instruction for the conduct of the case.
This is amply demonstrated, in my view, even without the need for psychiatric opinion, by Ms Marin’s utterances in the transcripts to which I have referred, characterised on many occasions by insistent monologue, refusal or inability to focus on discrete issues at hand and refusal or inability to respond to the Bench in relation to discrete issues or instructions, but engaging instead on the insistent monologue, on a miscellany of matters, relevant or not, either ignoring or incapable of understanding intimation from the Bench as to matters which are relevant or irrelevant to an application or proceedings at hand.
The monologues, as the transcripts demonstrate, on occasions are unintelligible, with thought process meandering from one topic to another topic, persecutory accusations and inability to focus on the issues at hand, either substantively or procedurally.
In effect, as the transcripts demonstrate, Ms Marin, in her inability to focus on the issues, in my view has no more ability to give instruction for the conduct of the case than she is of conducting it for herself.
In relation to the application for a case guardian, I have allowed Ms Marin to be assisted by Mr DD, who is well known to the Court, in the capacity as McKenzie friend.
Towards the end of argument, Ms Marin stated from the Bar table:
I am fully able to give instructions to a legal representative if only Legal Aid would fund me
and challenged that Legal Aid would be “better directed” to funding solicitors for her rather than funding the application for appointment of a case guardian.
However, having been involved in this matter now for over 5 years, and having had the experience of Ms Marin, for whatever reason, either terminating the engagement of her solicitors and Counsel in the 2006 trial, or alternatively having Legal Aid funding withdrawn from her, I have no confidence that even if Legal Aid now provided again solicitors and Counsel for Ms Marin that she would accept their representation.
That is not to say however that a case guardian could not apply for funding for both solicitors and Counsel in the matter should such be considered necessary, with the case guardian, as decision maker, instructing.
As the trial judge, I cannot now take the risk of a further aborted trial by Ms Marin having legal representation (even if she did have, in my view, the ability to give instruction to lawyers), and then when the matter comes on again for trial dismissing her solicitors and Counsel. This aspect of the matter however is academic because I have concluded, in any event, that she is not able to give adequate instruction to lawyers for the conduct of the case.
I am conscious that my own observations of Ms Marin alone would be insufficient to appoint a case guardian because as a judge I am not qualified to assess whether Ms Marin is a person with a mental disability. However, there is the existing diagnosis of mental disability to which I have referred. Although not current, Ms Marin has not, despite Court order, undergone recent psychiatric assessment. Putting these two matters together, that is, the existing diagnosis of mental disability and my observations as the trial judge, and as the only judge of this Court who has handled the matter for the last 5 years, I would conclude that Ms Marin’s diagnosed mental disability continues with effect that she cannot conduct her case or give adequate instruction for the conduct of her case.

I am satisfied thus in all respects in the circumstances that it is appropriate to appoint a case guardian.

Who should be the case guardian

Rule 6.09 provides:
6.09Who may be a case guardian
A person may be a case guardian if the person:
(a)is an adult;
(b)has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c)can fairly and competently conduct the case for the person needing the case guardian; and
(d)has consented to act as the case guardian.
Mr N fulfils all these criteria. His consent is contained in his affidavit filed 9 June 2011. Mr N is well known to the Court and has published a paper concerning case guardians, Managing Family Law Clients With Complex Needs, Family Law Residential 2007, Queensland Law Society website.
Mr N deposes that if appointed he will endeavour to settle both the parenting and property proceedings whilst ensuring that every proper and legitimate step for Ms Marin’s representation is taken. Indeed, so important is the role:
3.Ms Kendall Hawdon of Forest Glen Lawyers has provided me with copies of Rules 6.08 to 6.14 of the Family Law Rules 2004 and I understand the role that I will undertake if appointed [Ms Marin’s] Case Guardian. I have no interest adverse to [Ms Marin’s] interests and will act fairly and competently in the conduct of her case. I will act upon the advice provided to me by any lawyers that I may engage as to the nature and extent of [Ms Marin’s] entitlement to property settlement.
4.I consent to act on [Ms Marin’s] behalf as her proposed Case Guardian.
5.I understand from the Independent Children’s Lawyer, that [Ms Marin] is self acting and also that the Father in the proceedings, [Mr Salmon] is also now self acting having previously been represented by the Legal Aid Office in Queensland.
6.I have acted as a Case Guardian in cases where the person represented, is defiant or oppositional to the appointment. In those circumstances upon the appointment begin made, I endeavour to meet with the person concerned to explain fully my role and to explain that notwithstanding opposition or non-acquiescence to the role that I will keep the person fully informed of issues upon which I need to make decisions and of my proposed decisions. It is made clear to the person represented that whilst taking the views of the person concerned on the issues, that ultimately the decisions are mine as Case Guardian, in making decisions and providing instructions to any Lawyers acting.
7.I understand from the Independent Children’s Lawyer that the current issues before the Court relate to both children’s and property matters.
8.I have had the benefit of reading the Family Report of 19 October 2010 with respect to the children’s issues.
9.I have been informed by the Independent Children’s Lawyer and do verily believe that Legal Aid Queensland may consider a funding aid conference if there is a Case Guardian appointed for the Mother with respect to both children’s matters and property settlement matters. As Case Guardian I would endeavour to settle any outstanding matters whilst at the same time ensuring that if needed, every proper and legitimate step for [Ms Marin’s] representation is taken.
10.I am aware that the primary role of the Litigation Guardian is to conduct litigation and provide appropriate instructions to Lawyers to do so.
11.In the initial stages after the appointment in a case such as this, I would consider whether there is need to engage Solicitors which could become necessary in circumstances where it is necessary to have the Case Guardian represented in Court in, for example, defended proceedings.
12.If it is the case that Consent Orders can be reached with respect to both children’s matters and Property Settlement without the need for me to consult with Lawyers or take their advice on proposals, then I would act as Case Guardian and also be self-representing in that role.
I am satisfied in all respects that it is appropriate to appoint Mr N as Ms Marin’s case guardian.
I have mentioned earlier that although Ms Hawdon is the independent children’s lawyer, the application is made for appointment of Mr N in both the parenting and property proceedings and that is the order I propose to make.
In particular, in the property proceedings, the parties obtained a decree nisi on 9 June 2004 which became absolute on 10 July 2004. If, for any reason, the property proceedings were to be struck out without settlement or resolution then Ms Marin would be in the very difficult position of having to bring an application under section 44(3) to re-enliven property proceedings in circumstances in which it appears the only substantial asset of the parties is the former matrimonial home in which the father and the children have been living for many years now and on which, I understand, he solely has been paying the mortgage and solely supporting the children.
The property proceedings between the parties must be finalised to bring an end to their financial relations as adults just as urgently as the parenting proceedings concerning the children need to be finalised and these proceedings, which have been on foot since 2003, brought to an end.

Costs

I propose to order that there be no order as to the costs of the independent children’s lawyer’s application.
The parties have been self represented in it and indeed thus each has incurred no costs. The independent children’s lawyer is totally funded by Legal Aid for the purpose of this application.
Ms Marin’s circumstances are such that in my view no costs order against her income or property in relation to the bringing of the application is warranted. Certainly, her health and mental disability are not her fault.

Addendum

At the conclusion at the delivery of these reasons Ms Marin stated that she had attended for recent psychiatric assessment at the EE Hospital and advanced to me as a psychiatric assessment a document which became marked ex 2.
The document that Ms Marin handed to me has “23” in a circle in the top left hand corner with EE insignia and name and reads:

I hereby certify that I am leaving [EE Hospital] at my own risk.
[EEH]        1617706
[Ms MARIN]
EMRG                  22/09/1966
CDA  F         41Y
…
…  11/07/08
11:20

THE DOCTOR TREATING ME HAS ADVISED ME THAT I COULD SUFFER PERMANENT DISABILITY OR DIE AS A RESULT OF MY MEDICAL PROBLEM.
I AM AWARE THAT I MAY RETURN TO THE EMERGENCY DEPARTMENT ANY TIME IF I AM WORRIED ABOUT MY CONDITION.
I HAVE BEEN GIVEN AN INSTRUCTION SHEET IF RELEVANT TO MY PRESSING COMPLAINT.
Signature of patient: [no signature but the words] I wish to advise that [FF] advised of the above in regard to [illegible word] me an assessment of my back injury at 9.30pm after an assessment [illegible word/s].

Signature of Doctor:                  [signature on document]
Signature of Nurse:  [signature on document]
Date:         11/07/09
Time:         21:35

This document does not appear to relate to psychiatric assessment. It does not alter my determination. It remains the case that Ms Marin has refused to present for psychiatric assessment despite Court order and has been unable to provide independently any psychiatric report.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 15 July 2011.

Associate:

Date: 11 August 2011

[2011] FamCA 664

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