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Children – maternal aunt considered inappropriate as mother’s litigation guardian…

…despite existing appointment as mother’s guardian by a state tribunal

In Remington [2021] FedCFamC2F 99 (27 September 2021), Judge Kari heard an application for the appointment of a litigation guardian for the mother – in parenting proceedings in respect of an 11-month-old: child ‘X’.

The 27-year-old mother had been diagnosed with a number of cognitive impairments and was the subject of state guardianship and administration orders, appointing the maternal grandmother and the maternal aunt as guardians and limited administrators of the mother. There had been numerous police interventions involving the mother’s behaviour towards the maternal grandmother and aunt.

The maternal grandmother sought orders providing for X to live with her and for her to have sole parental responsibility. The presumed father was not party to the proceedings and his whereabouts were unknown. The maternal aunt (Ms E) initially participated in the proceedings as the ‘legal guardian’ of the mother.

After reviewing the report prepared by the state welfare authority, Judge Kari said (from [53]):

 “… 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.

(…)

[57] The issue however is that … the maternal aunt appears to have an interest in the litigation that is adverse to that of the mother … I have come to this conclusion for two reasons, firstly because Ms E has advised the court … that she supports the application of the maternal grandmother. Secondly, as a consequence of the … report from the Department for Child Protection … 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.

[58] 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.

(…)

[62] … [T]he administration order that has been made relates specifically to the conduct of legal proceedings, being a personal injury claim …

[63] While the orders made by SACAT (South Australian Civil and Administrative Tribunal) would entitle either the maternal grandmother or the maternal aunt, Ms E, to be appointed as the mother’s litigation guardian … it is my firm view that either of those persons are inappropriate given their conflicting interests.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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