THROSBY & THROSBY

[2014] FCCA 138

FEDERAL CIRCUIT COURT OF AUSTRALIA

THROSBY & THROSBY [2014] FCCA 138

Catchwords:
FAMILY LAW – Practice and procedure – circumstances under which the appointment of a litigation guardian is appropriate – where party suffers from mental disability impairing ability to understand the nature and possible consequences of proceedings – where party unable to conduct proceedings without legal representation – legal aid funding withdrawn from both parties before Final Hearing – relevant legal principles and rules considered – litigation guardian appointed.

Legislation:

Disability Act 2006
Federal Circuit Court Rules 2001, rr.11.08, 11.11, 11.12

Marin & Salmon [2013] FamCAFC 88

Applicant: MR THROSBY

Respondent: MS THROSBY

File Number: MLC 3317 of 2012

Judgment of: Judge Whelan

Hearing date: 3 February 2014

Date of Last Submission: 3 February 2014

Delivered at: Melbourne

Delivered on: 3 February 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondent: Respondent in person

Counsel for the Independent Children's Lawyer: Mr Dunstan

Solicitors for the Independent Children's Lawyer: Bowlen Dunstan & Associates Pty

THE COURT DECLARES THAT:

1. Pursuant to r.11.08(1) of the Federal Circuit Court Rules 2001, the Applicant requires a litigation guardian to be appointed on his behalf in these proceedings.

THE COURT ORDERS THAT:

1. Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001, the Court forthwith appoints a litigation guardian for the Applicant in these proceedings.

2. Pursuant to r.11.12(3) of the Federal Circuit Court Rules 2001, it is requested that the Attorney-General appoint a person to be a manager of the affairs of the Applicant for the purposes of the appointment of a litigation guardian.

3. All extant applications be adjourned to this Court on 15 April 2014 at 9.30 a.m. for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3317 of 2012

MR THROSBY

Applicant

And

MS THROSBY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In proceedings before the Court on 3 February 2014, I issued a declaration that the Applicant Father in these proceedings,

   
   

   MR THROSBY (“the Father”), required a litigation guardian to be appointed on his behalf and consequently made orders for the appointment of a litigation guardian.

2. I now release my reasons for that decision.

The history of the litigation

1. The application in these proceedings was initiated by the Father on

   
   

   17 April 2012. The proceedings concern appropriate parenting orders with respect to the five children of the marriage. Those children are:

   ·[V] born [in] 1999 (“[V]”);

   ·[W] born [in] 2001 (“[W]”);

   ·[X] born [in] 2005 (“[X]”);

   ·[Y] born [in] 2009 (“[Y]”); and

   ·[Z] born [in] 2011 (“[Z]”) (collectively “the children”).

2. The Father and the Respondent Mother, MS THROSBY (“the Mother”), separated in February 2012. At the time of the Initiating Application, [V], [W] and [X] were living with the Father while [Z] and [Y] were living with the Mother. On 11 May 2012, orders were made for the appointment of an Independent Children’s Lawyer and a s.11F Conference with a Family Consultant to be conducted. A report by Family Consultant MS D (“Family Consultant D”) was released on 2 July 2012 which recommended that the Father undertake a cognitive psychological assessment and that, for the interim period, the children remain living with the parents with whom they currently resided.

3. On 28 August 2012, a Family Report was released. Prepared by Family Consultant Ms G (“Family Consultant G”), the Report made a number of recommendations including that all of the children live with the Mother. This occurred on 16 November 2012, after the Mother had obtained suitable accommodation for herself and the children.

4. On 12 December 2012, a report prepared by a Clinical Neuropsychologist, Dr P (“Dr P”), was released.[1] The report included the following assessments of the Father:

   ·His overall level of intellectual functioning suggests that the Father functions in the “mildly intellectually disabled range”;[2]

   ·On formal assessment of his academic achievements, Mr Thrsoby functioned in the borderline range. He was unable to read single words reliably, but could correctly identify letters of the alphabet 95% of the time. He was unable to perform basic mathematic equations, although he was able to recognise and recall the numbers from 1 – 20;[3]

   ·Mr Thrsoby’s ability to register and consolidate new information was significantly impacted upon by attentional and executive factors. Typically, Mr Thrsoby became overwhelmed by large amounts of information, and could not register more than what he could hold in his immediate attention span;[4]

   ·Higher-level executive functions were in keeping with his overall level of intellectual ability. Typically, his performances were characterised by concrete and literal problem solving, simplistic and child-like practical reasoning and judgement (sic), and poor planning and organisational skills;[5] and

   ·He was aware of the proceedings before the Federal Magistrates’ Court, but had incorrectly attributed the cause to his ex-partner – stating that “she had told the court [he] was stupid”.[6]

   [1] Affidavit of expert witness filed 17 April 2013, at Annexure “DP1”.

   [2] Ibid, Annexure “DP1” at p.2.

   [3] Ibid.

   [4] Affidavit of expert witness filed 17 April 2013, Annexure “DP1”, at p.2.

   [5] Ibid, Annexure “DP1”, at p.3.

   [6] Ibid, Annexure “DP1”, at p.1.

5. Dr P was of the view that the Father was “somewhat childish, perseverative, and lacked insight into both his own and his children’s current and future needs”.[7] The Father consistently repeated,

   
   

   with respect to the process, “did I pass or fail”,[8] again suggesting a lack of understanding of the process. He was only superficially aware of the reasons that had precipitated the neuropsychological examination.

   [7] Ibid, Annexure “DP1”, at p.2.

   [8] Ibid.

6. In February 2013, [V] and [W] absconded from their Mother and refused to return home from the Father’s residence.

7. On 12 February 2013, orders were made for the parties, [V] and [W] to attend a s.11F Conference on 13 February 2013. Arising from that Conference, Family Consultant D made a number of recommendations, including that the Department of Human Services (“DHS”) be requested to intervene in the proceedings. On 15 February 2013, orders were made for the children to live with the Mother and the Court ordered that the Father’s time and communication with the children be suspended, and that the parties enrol in a contact centre to enable the Father to spend supervised time with the children. The matter was adjourned for a Final Hearing in August 2013.

8. Further instances of [V] and [W] absconding occurred during 2013. DHS became involved and recommended that it was in the best interests of the children to continue to reside in the primary care of their Mother and that contact with the Father should be in a supervised environment. On 11 November 2013, a further Family Report was released by Family Consultant G. The Report recommended that the Mother have sole parental responsibility for the children and that the children live with the Mother and spend supervised time with the Father.

9. The matter was listed for final hearing before the Court on

   
   

   19 December 2013.

The proceedings on 19 December 2013

1. On 19 December 2013, both the Mother’s solicitor, Ms JULIE ANDRITSOS, and the Father’s solicitor, Mr TONY COOPER, indicated that they would be withdrawing from the proceedings on the basis that legal aid had been withdrawn from both of the parties. I expressed the view that I was concerned that legal aid had been withdrawn from the Father as, on my reading of Dr P’s report, the Father was not capable of running the proceedings without the assistance of legal representation. I, therefore, directed that Victorian Legal Aid (“VLA”) attend the proceedings to explain why the Father’s grant of aid had been withdrawn.

2. Ms FLORIS attended on behalf of VLA and indicated that, in order for the Final Hearing to be funded, the Father had not only to be in receipt of a disability benefit because of his intellectual disability, but needed to be receiving services from DHS or from a registered disability service provider under the DisabilityAct 2006 (“the Disability Act”). When asked if any weight had been given to the report by Dr P,

   
   

   the Court was told that it had not because the Father was not receiving services from DHS or a registered disability service provider.

3. I requested that a more senior officer from VLA attend to explain the reasons why the Father had had his grant of legal aid withdrawn.

   
   

   Ms LOUISE ATKINSON (“Ms Atkinson”), the managing lawyer of Family Law Assignments VLA attended. It was put to her that the Court had a report from a Clinical Neuropsychologist who had evaluated the Father and it was clear, from that neuropsychological evaluation, that the Father was not capable of representing himself in the proceedings. It was also put that the family had had a long involvement with DHS and there had certainly been comments made by DHS which also related to the Father’s capacity and functioning. Ms Atkinson repeated that the guidelines required the Father to be receiving services from an accredited service under the Disability Act. She also referred to the fact that VLA was funding the

   
   

   Independent Children’s Lawyer (“the ICL”).

4. Before adjourning the proceedings, I raised my concerns about the following:

   ·The fact that the Father was functionally illiterate and therefore incapable of reading the documents in the matter and to be able to conduct a Final Hearing. In particular, I noted that the Father could not read the ICL’s outline of case, nor the affidavits or the reports that had been provided; and

   ·The pressure that the Father’s lack of representation put on the ICL and the Court to be satisfied that he fully understood and was committed to any agreement which might be negotiated by the ICL. This was particularly of concern given that the Father had failed to comply with previous orders made by the Court.

5. The matter was then adjourned until 3 February 2014. On that day,

   
   

   the Court was told that [W] had once again absconded from the Mother and had been returned to her by DHS. There was a possibility that DHS might take proceedings in the Children’s Court.

Conclusions

1. In light of the decision by VLA to withdraw the Father’s funding despite his receipt of a disability benefit due to his intellectual disability and his obvious incapacity to represent himself, the Court was left with the dilemma of either staying the proceedings indefinitely or considering what other alternatives were open to it. It would not be fair to the Mother to stay the proceedings for an indefinite period.

2. The Federal Circuit Court Rules 2001 (“the Rules”) provide that the Court may, at the request of a party or of its own motion, appoint a litigation guardian in proceedings in the interests of the person who needs a litigation guardian.[9] Rule 11.08(1) of the Rules provides that:

   … a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

   [9] Federal Circuit Court Rules 2001, r.11.11.

3. While Dr P was not asked specifically whether the Father was capable of conducting the proceedings, or able to understand their nature and effect, having read Dr P’s assessment, I am satisfied that the Father does not have that capacity and I am concerned that he does not understand the effect of orders made by the Court. In coming to that conclusion, I refer not only to the Father’s illiteracy, but also to his:

   ·Intellectual functioning;

   ·Incapacity to process large amounts of information; and

   ·Difficulty in registering and consolidating new information.

   I do not consider the fact that Dr P was not asked to express an opinion about the Father’s capacity to understand the nature and possible consequences of the proceeding, or his capacity to adequately conduct the proceedings on his behalf, to be a bar to me relying on

   
   

   Dr P’s report in making my assessment.[10]

   [10] See Marin & Salmon [2013] FamCAFC 88.

4. For these reasons, I am satisfied that the Father is a person who needs a litigation guardian within the meaning of r.11.08 of the Rules.

   
   

   I, therefore, order that a litigation guardian be appointed and, in accordance with r.11.12(3) of the Rules, that the Attorney-General appoint a person to be the manager of the Father’s affairs for the purpose of the appointment of a litigation guardian.

5. The substantive proceedings are adjourned until 15 April 2014.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  3 February 2014