Independent Children's Lawyer applies for Litigation Guardian
Gaddy & Gaddy [2022] FedCFamC2F 1544 (11 November 2022)
The Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother. The Mother opposed the appointment. The Court, in resolving this dispute, assessed the Mother's capacity to instruct her legal representatives.
Facts
A four-day parenting trial has been listed to commence in just under four (4) weeks. Last week the Independent Children’s Lawyer filed an application seeking the appointment of a litigation guardian. The father supports the appointment, the mother does not and wants to instruct a solicitor to prepare for the trial. The father, MR GADDY commenced the parenting proceedings in January 2021 and the mother, MS GADDY is the respondent in those proceedings.
As a result of the multiplicity of solicitors coming onto the record for the mother in recent months combined with the nature, volume and breadth of the publication of emails by the mother - the ICL filed an application in a proceeding on 2 November 2022 seeking various interlocutory orders, the majority of which went to the appointment of a litigation guardian for the mother. On 11 May 2021, a two-year final apprehended domestic violence order was made protecting the father from the mother. On 11 October 2021, Dr B diagnosed the mother has having a psychiatric disorder of bipolar affective disorder, current episode hypomanic with mood incongruent psychotic symptoms and anxious distress.
The mother’s presentation was recorded as being superficially logical, plausible and coherent but as time went on the mother’s disorganised thinking became more pronounced. References to disordered and delusional thinking are recorded with one of the most concerning symptoms being her complete lack of insight into her mental illness. On 10 February 2022, trial directions were made by Judge Betts which included an order made pursuant to s 102NA prohibiting the parties from personally cross-examining each other. In the context of the overarching purpose and the principles set out in s 69ZN, it is worth noting that as part of His Honour’s orders, the trial originally set down for August 2022 was vacated and adjourned to four (4) days commencing on 5 December 2022.
The ICL proposed two options for the appointment of a litigation guardian for the mother (in a self-executing consequential manner). It was submitted that if that relief was granted, and the mother could not (or would not) secure a person who consented to their appointment within the seven days the ICL’s relief gave her to do so - then in the immediate future, there was little to no prospect of either AGD or the NSW Law Society being able to find a litigation guardian for the mother.
Issue
Whether or not the Court should appoint a litigation guardian for the mother.
Applicable law
Analysis
The mother had filed nothing. She submitted that she had documents that would show that despite various interventions about her with treating medical and therapeutic professionals, including staff from a local health district - all the written correspondence of her interactions supported her submission that no mental health diagnosis had been made or that her presentation during her interactions warranted any concerns. There was no evidence or submissions from either of the mother’s lawyers about whether they are having difficulties obtaining instructions from the mother. There was no evidence from the mother’s current treators going specifically to the issue of her capacity to conduct the proceedings and/or to instruct someone in the conduct of the proceedings.
The dismissal of the ICL’s application, given the mother’s submissions about her willingness to instruct a solicitor and/or her capacity to conduct the proceedings herself (albeit this is not her preference) will support the efficient use of the court’s resources and provide for the just determination of the dispute as quickly, inexpensively and efficiently as possible.
Conclusion
The application in a proceeding filed by the Independent Children’s Lawyer on 2 November 2022 is dismissed.
