L v Human Rights and Equal Opportunity Commission

(a) banking and financial institutions;

(b) medical practitioners who have treated the wife;

(c) legal practitioners, law firms and conveyancers who have acted for the wife; and

(d) Single Experts appointed in these proceedings.

AND this order shall stand as such authority and may be provided by the litigation guardian to any of the entities referred to in Orders 4(a) to 4(d) hereof.

1. The litigation guardian is hereby authorised to provide a copy of these orders to any of the entities referred to in Order 4 hereof.
2. The parties attend private mediation for parenting and property, with the husband and the wife to equally meet the costs of the mediator and such mediation to occur on or before 4 August 2025.
3. For the purposes of the mediation if the parties do not otherwise agree, on or before 3 July 2025 the husband nominate three appropriately accredited mediators and the litigation guardian select a mediator from the list provided by the husband within seven days.
4. The husband's Application in a Proceeding filed 23 May 2025 and the wife's Response to Application in a Proceeding filed 30 May 2025 be otherwise dismissed.

1. The matter remains listed for final hearing on 27 October 2025 at 10.00 am.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The application currently before the Court is the Application in a Proceeding filed by the husband on 23 May 2025. In that application the husband seeks the appointment of Ms D as the litigation guardian for the wife, at the expense of the wife. He seeks additional orders enabling the litigation guardian to liaise with various entities and professionals who have been engaged with the wife and/or these proceedings as is necessary to allow the litigation guardian to competently conduct the proceedings on behalf of the wife.
2. The husband filed an affidavit from Ms D indicating her consent to being appointed to the role.
3. The wife opposed the application. She is of the view that she does not require a litigation guardian. Alternatively, if one is required, she proposed she be able to nominate either a solicitor of her own choosing, or possibly her sister to conduct that role. No affidavit had been filed by any solicitor, or the wife's sister, indicating their availability or ability to act as her litigation guardian.
4. The substantive applications before the Court involve the parties' two year-old daughter - with competing "live with" applications, and applications seeking property adjustment. The matter is listed for five days to commence 27 October 2025.

1. Relevantly, the matter was listed to commence as a five-day final hearing on 5 May 2025. The wife's then counsel advised at the commencement of the first day that she was unable to obtain instructions from her client. It was counsel's strong view that the wife may need a litigation guardian.
2. Pursuant to rule 3.12(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), a person needs a litigation guardian in relation to a proceeding if the person either

(a) does not understand the nature and possible consequences of the proceeding; or

(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

1. Once appointed, a litigation guardian will take over the conduct of the proceeding on behalf of the litigant. It is accordingly a serious step - as the litigant no longer has control over the proceeding.
2. In most cases the Court will require medical evidence to guide it in determining whether or not a litigation guardian should be appointed; see L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432 at [27].
3. At the hearing on 5 May 2025, the parties were able to agree for the wife to be assessed by Dr H. Dr H conducted an interview with the wife by video link that day. Counsel jointly conferred with Dr H after the assessment on the afternoon of 5 May 2025. The Court was then advised Dr H had formed the view that the wife was not capable of giving adequate instructions.
4. In the circumstances, the trial was vacated. Orders were made for the wife's solicitors to file and serve an application seeking the appointment of a litigation guardian within 14 days. It was noted that if the wife did not make that application, the husband would make the application.
5. Dr H has now sworn an affidavit attaching his written report in which he concluded that:
   1. ...on balance [the wife] is unable to be able to understand the process in relation to the Court weighing up the evidence and is unable to understand that she may not succeed in obtaining the order she seeks. She is unable to appreciate her impairment in not meeting the Court deadlines. She is unable to appreciate the evidence presenting in terms of concerns about her and unable to give instructions in relation to this.
   2. In my opinion, on balance, [the wife] requires a litigation guardian in order to conduct these proceedings.

1. Given the conclusion reached by Dr H, I am satisfied that the wife requires a litigation guardian. Dr H has assessed that the wife does not appear to understand the possible consequences of the proceeding and she is not capable of giving adequate instructions for the conduct of the proceedings before this Court. Accordingly, it appears that both limbs of rule 3.12(1) of the Rules are engaged.
2. The wife's lawyers did not make any application for the appointment of a litigation guardian. They filed a Notice of Ceasing to Act on 15 May 2025.
3. In the absence of any application being made by the wife, the husband filed an Application in a Proceeding on 23 May 2025 for the appointment of Ms D as the wife's litigation guardian. That application was supported by an affidavit sworn by Ms D and filed on 23 May 2025 confirming she meets the requirements pursuant to rules 3.14 and 3.15 of the Rules. She is an adult who has no adverse interest in the case. She is a practicing solicitor, admitted in 2004 who has practised in family law since that time. I am satisfied she can fairly and competently conduct the proceedings for the wife. She consents to the appointment. She estimated her fees to act as litigation guardian to the conclusion of the final hearing will be approximately $45,320.
4. The wife attended the hearing on 2 June 2025 by Teams unrepresented. She indicated that she did not believe she required a litigation guardian. She did not agree to Ms D being appointed to that role.
5. I am satisfied the wife has had an opportunity to select her litigation guardian. However, she has failed to nominate any specific person to be appointed. She did not file any application as contemplated in the orders made on 5 May 2025. As already noted, the wife said she might consider her sister being appointed, or she might nominate a solicitor of her own choosing. The wife's sister is not on affidavit. I do not know if she is willing to be the wife's litigation guardian, or competent to act in that role. The wife did not nominate a solicitor who might be willing to be appointed as her litigation guardian. Indeed, there was no evidence the wife had made any actual enquiries of any person who might be appointed as her litigation guardian.
6. The only affidavit that has been filed on the wife's behalf is that of her cousin Mr J. Mr J deposed he was willing to support the wife in these proceedings including "as a Litigation Guardian for [the parties' child]". However, the wife did not suggest him as a possible litigation guardian. Nor did his affidavit demonstrate that he had any understanding of the role or ability to undertake any such appointment fairly or competently.
7. Accordingly, the only person currently named and able to meet the requirements under the Rules is Ms D.
8. There is in my view no utility in giving the wife further time to nominate an appropriate litigation guardian. She does not believe she needs one. She has already had since 5 May 2025 to nominate an appropriate person, and she has not done so. I have already outlined the many failures by the wife to adhere to Court directions for filing in my previous judgment.
9. The matter is listed for a final hearing on 27 October 2025. It was already slated to have a final hearing on 3 February 2025 which date was vacated as the wife had not filed material. The subsequent hearing date of 5 May 2025 was also vacated to enable the appointment of a litigation guardian. Further delays cannot be in the child's best interests.
10. In all the circumstances I am satisfied it is appropriate for Ms D to be appointed as the wife's litigation guardian.

1. It is the husband's application that the wife meet the costs of the litigation guardian. I am of the view that whilst the wife can be obligated to meet the costs at first instance, the husband's contribution, if any, to those costs is a matter that can be considered at trial. I note that the sum of approximately $200,000 was paid from the sale of a Queensland property to K Financial Services, to fund the wife's litigation on around 9 April 2025.

1. Once the litigation guardian has been appointed it is appropriate that the parties attend dispute resolution, and I will order accordingly. It may be that with the assistance of a litigation guardian the matter can be resolved, or at least the issues narrowed.

The wife's Response to an Application in a Proceeding

1. On 30 May 2025, the wife filed a Response to the husband's Application in a Proceeding. The wife seeks a raft of orders in that response, including litigation funding, spousal maintenance, the discharge of the Independent Children's Lawyer, and orders regarding the parties' child. No affidavit material was filed in support of any of these orders.
2. The wife has been assessed as needing a litigation guardian. Pursuant to rule 3.13 of the Rules only the person's litigation guardian can continue or respond to an application. Accordingly, the wife is not permitted to file or pursue that Response.
3. In the circumstances, the wife's Response to Application in a Proceeding filed 30 May 2025 is dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.